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VOLUME 1

Looking Forward, Looking Back

Report of the Royal Commission on Aboriginal Peoples A Thanksgiving Address

Opening the Door

1 Getting Started

2 From Time Immemorial: A Demographic Profile 4 Stage One: Separate Worlds 6 Stage Three: Displacement and Assimilation 8 Introduction

3 Conceptions of History 5 Stage Two: Contact and Co-operation 7 Stage Four: Negotiation and Renewal 9 The Indian Act

10 Residential Schools

11 Relocation of Aboriginal Communities

12 Veterans

13 Conclusions

14 The Turning Point

15 Rekindling the Fire

16 The Principles of a Renewed Relationship

A Note About Sources Among the sources referred to in this report, readers will find mention of testimony given at the Commission's public hearings; briefs and submissions to the Commission; submissions from groups and organizations funded through the Intervener Participation Program; research studies conducted under the auspices of the Commission's research program; reports on the national round tables on Aboriginal issues organized by the Commission; and commentaries, special reports and research studies published by the Commission during its mandate. After the Commission completes its work, this information will be available in various forms from a number of sources. This report, the published commentaries and special reports, published research studies, round table reports, and other publications released during the Commission's mandate will be available in Canada through local booksellers or by mail from ii

Canada Communication Group — Publishing Ottawa, Ontario K1A 0S9 A CD-ROM will be published following this report. It will contain the report, transcripts of the Commission's hearings and round tables, overviews of the four rounds of hearings, research studies, the round table reports, and the Commission's special reports and commentaries, together with an educators' resource guide. The CD-ROM will be available in libraries across the country through the government's depository services program and for purchase from Canada Communication Group — Publishing Ottawa, Ontario K1A 0S9 Briefs and submissions to the Commission, as well as research studies not published in book or CD-ROM form, will be housed in the National Archives of Canada after the Commission completes its work.

A Note About Terminology The Commission uses the term Aboriginal people to refer to the indigenous inhabitants of Canada when we want to refer in a general manner to Inuit and to First Nations and Métis people, without regard to their separate origins and identities. The term Aboriginal peoples refers to organic political and cultural entities that stem historically from the original peoples of North America, rather than collections of individuals united by so-called 'racial' characteristics. The term includes the Indian, Inuit and Métis peoples of Canada (see section 35(2) of the Constitution Act, 1982). Aboriginal people (in the singular) means the individuals belonging to the political and cultural entities known as 'Aboriginal peoples'. The term Aboriginal nations overlaps with the term Aboriginal peoples but also has a more specific usage. The Commission's use of the term nation is discussed in some detail in Volume 2, Chapter 3, where it is defined as a sizeable body of Aboriginal people with a shared sense of national identity that constitutes the predominant population in a certain territory or collection of territories. The Commission distinguishes between local communities and nations. We use terms such as a First Nation community and a Métis community to refer to a relatively small group of Aboriginal people residing in a single locality and forming part of a larger Aboriginal nation or people. Despite the name, a First Nation community would not normally constitute an Aboriginal nation in the sense that the Commission defined the term above. Rather, most (but not all) Aboriginal nations are composed of a number of communities.

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Our use of the term Métis is consistent with our conception of Aboriginal peoples as described above. We refer to the Métis as distinct Aboriginal peoples whose early ancestors were of mixed heritage (First Nations, or Inuit in the case of the Labrador Métis, and European) and who associate themselves with a culture that is distinctly Métis. The more specific term Métis Nation is used to refer to Métis people who identify themselves as a nation with historical roots in the Canadian west. Our use of the terms Métis and Métis Nation is discussed in some detail in Volume 4, Chapter 5. Following accepted practice and as a general rule, the term Inuit replaces the term Eskimo. As well, the term First Nation replaces the term Indian. However, where the subject of discussion is a specific historical or contemporary nation, we use the name of that nation (e.g., Mi'kmaq, Dene, Mohawk). Often more than one spelling is considered acceptable for these nations. We try to use the name preferred by particular nations or communities, many of which now use their traditional names. Where necessary, we add the more familiar or generic name in parentheses — for example, Siksika (Blackfoot). Terms such as Eskimo and Indian continue to be used in at least three contexts: 1. where such terms are used in quotations from other sources; 2. where Indian or Eskimo is the term used in legislation or policy and hence in discussions concerning such legislation or policy (e.g., the Indian Act; the Eskimo Loan Fund); and 3. where the term continues to be used to describe different categories of persons in statistical tables and related discussions, usually involving data from Statistics Canada or the Department of Indian Affairs and Northern Development (e.g., status Indians on-reserve, registered Indians). COMMISSIONERS APPOINTED to the Royal Commission on Aboriginal Peoples held close to one hundred meetings, each usually lasting several days, between the fall of 1991 and the fall of 1995. On these and other important occasions, such as the public hearings, opening and closing ceremonies were held and a prayer or thanksgiving address was offered to the Creator for the safe arrival of persons to the meeting or their safe return home to their families, for the start or ending of a day, and for all the living things that are part of the Circle of Life.

If a meeting was about to begin, those who participated were asked to approach the day with a good mind, to speak clearly and honestly with each other, and to listen carefully to what was being said. It was emphasized that, when people come together for high purposes and to deal with difficult issues, their minds must be clear. Those associated with the Commission experienced the strength gained when people come together in a supportive manner and for a common purpose. They felt the power that is generated when people use a good mind to come to one mind. It is in this spirit that the Commission begins its final report with a thanksgiving address that, in one form or another, was spoken many times at the Commission and from time immemorial among the Haudenosaunee (Iroquois).

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Volume 1 - Looking Forward Looking Back

A Thanksgiving Address as we walk the path that is our life, there are times when things happen to distract us. When this happens it is easy for us to lose our way and stray from the path that is the good mind, and we suddenly find ourselves stumbling through the brush. As we struggle to push our way through the underbrush, trying to regain the clear path, we pick up burrs and thorns that cling to our clothing, pricking our skin. We get dusty and scared. Our fear causes us to cry and our hearts to pound. IT IS SAID THAT,

It is good to see that you have arrived here safely and that we may spend some time together. I know that you have come from far away and that many obstacles were in your way. And yet, despite these obstacles, you are able to be here. I take you by the hand as a brother or a sister. I offer you words of greeting and respect. I offer you food and drink. I speak these words so that your mind may be put at ease and your load lightened. We come together in this way because your mind is distracted. We come to offer our thoughts and our support. We come to lift the weight of your burden from your shoulders and to share it among us. We know that as an individual you are very strong. But, we also know there are times when we need the strength of others. We understand that when we are in pain, the mind is distracted and we find it difficult to use the power of a good mind. First, we take the finest eagle feather we can find, and with this eagle feather, we brush away the dust that clings to you. We remove any burrs or thorns or twigs that may be caught on your clothing. We remove these things because they surely cause you pain and discomfort. And so, we hope this makes you feel more comfortable and more at ease. Your eyes may be filled with tears because of that with which you are struggling. These tears blur your vision and sting your eyes. There may be a sound like roaring in your ears because of the fear, pain and anger you may be feeling. And so, we take the finest and softest deer skin we can find. We gently wipe away your tears so that you may see the beauty that is all around you and your friends and relations who have gathered here to support and help you. Next, we wipe away any obstruction in your ears that may prevent you from hearing the good words that people speak to help ease your suffering. We offer you a place to sit so that you may rest your weary body. Finally, your fear, your pain and your anger may cause an obstruction in your throat. It is important to remove that obstruction so that, when you speak, your words may come loudly and clearly so that all may understand what is troubling you. And so, we offer you a drink of pure, cool water. Water is indeed one of the most powerful medicines we have, for it has the ability to give and to sustain life. The water will help to remove that which clogs your throat. It soothes your insides and quenches your thirst.

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And so, with all this we hope you are now more comfortable and we have helped to ease your burden. We hope these words have helped to restore a sound mind, body and spirit. We hope that now you may focus, with a clear and good mind, on the words of thanksgiving, the Ohentonkariwatehkwen (the words that come before all others). We celebrate the fact that life exists, for we understand that it is by pure chance that it does. And so it is Sonkwaiatison, our Creator, that as we prepare to begin this new day, we take a few moments to centre ourselves, to reflect on who we are, on our place within the Circle of Life, and on our responsibilities to all of Creation. We begin by turning our thoughts to you, Ietinistenhen Ohontsa, our sacred Mother, the Earth. We know that you are sick and you are dying at this time because of the way we, the two-legged, show you disrespect and abuse of your gifts. And yet despite this, your love for your children is such that you continue to provide all we need to survive on a daily basis. You continue to fulfil your responsibilities and carry out your duties in accordance with the instructions given you in the beginning of time. For this we are grateful. And so it is, we turn our minds to you, we acknowledge you and we give thanks. So be it in our minds. We understand that we share our time here with many different forms of life. From the smallest micro-organisms and the insects that live in the body of our Mother Earth, it is your responsibility to keep the body of our Mother healthy and strong. It is your duty to fight the effects of pollution. We know your task is great at this time because of the demands we, the two-legged, place upon you. And yet, despite this, you continue to struggle with the weight of the burden we place upon you. You fight to carry out your responsibilities and fulfil your obligations in accordance with the original instructions. Because of this, the cycle continues. And so it is, we turn our minds to you, we acknowledge you and we give thanks. So be it in our minds. We turn our minds to the different forms of life that walk on the face of Mother Earth. There are those of you who crawl and those of you who slither. We acknowledge you Okwaho (wolf), Okwari (bear) and Anowarah (turtle). You represent our clans, our families. There are those of you who provide us with shelter, tools, clothing and food. We call you Skanionsa, the moose and Oskenonton, the deer. You give of yourselves so that we may survive. We understand that there is a relationship of respect that must exist among us. We turn our minds to the fish and other forms of life that live in the bodies of water. We know that you struggle because of the disrespect we show you. We pollute your world and treat you as resources and products. We look now to all the different birds that are around us. When the Creator made you, he gave your feathers the colours of the rainbow. He gave each of you a beautiful and distinctive song and he asked that you greet each new day with that beautiful song. Every day, when your voices come together in a beautiful chorus, we are reminded of the importance of the diversity and harmony in Creation.

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From among the birds the Creator chose you, Akweks, our brother, the Eagle. You are the strongest and are able to fly the highest. Your keen eyesight allows you to see the Creation. Upon your shoulders, the Creator placed the added burden of being the Creator's messenger. Our Elders teach us that, should you appear in a dream and speak to us, we should pay particular attention to your words. For it is said that you are bringing a message directly from the Creator. All the creatures continue to carry out your duties and to fulfil your responsibilities in accordance with the original instructions. Because of this, the cycle of life continues and for this we are grateful. And so, we turn our minds to you, we acknowledge you and we give thanks. So be it in our minds. We turn our minds to the rooted nations of Creation. We acknowledge the trees. And you, Wahta (the maple), you provide us with wood for heat, tools and shelter. You also provide us your life's blood so that we may have Wahta osis (maple syrup) for medicine. It is indeed a happy time when you give us this gift, for we know the Creation is awakening and the cycle of life continues. We look forward to the time when you, Niionhontehsha, the strawberry, will show yourself once again. You are a powerful medicine and we know that, if you appear, the harvest will be good and our people will not go hungry. We acknowledge the grasses, the medicine plants. We greet you, the Three Sisters — Onenste (corn), Osaheta (beans) and Onononsera (squash). You are the staple of my people. We know that, when we plant you together, you protect one another from disease and insects. And in so doing, you teach us a valuable lesson about the need for diversity. And so it is, we turn our minds to you, we acknowledge you and we give thanks. So be it in our minds. We turn our minds to you, the various bodies of water. The rivers, the lakes, the oceans and the springs. You fulfil a vital function in the continuation of the cycle of life. You provide us with the most powerful medicine there is, for water has the ability to give and to sustain life. For this we are grateful, so we acknowledge you and we give thanks. So be it in our minds. As we look around us this morning, we see, Karakwa, our brother the Sun, that you have chosen to grace us with your presence once more. You bring the warmth of a new day. You bring us light so that we may see the beauty that surrounds us. Working with all the other elements of Creation, you help perpetuate the cycle of life. We know that your time with us will be short this day and that you will soon disappear where the sky and earth come together in the west. We know that, as darkness surrounds us, Ahsontenka Karakwa (Grandmother Moon), you will watch over us. You work with all the female life in the universe. You decide when children will be born. You work with the waters and help to keep the cycle going. We are reminded every day, as you share the sky with Karakwa, of the balance that must be maintained between the roles of the female and of the male. We are reminded of the equal importance of both, and we understand that without the one, there is no other. As we look to the night sky, we see you Tsiiotsistokwaronion (the stars). Some of our Elders teach us that you represent the spirits of those who have gone on before us. You

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represent the past, our history, and yet you are still here in the present. We understand that your teachings are as old as time itself, and yet they remain unchanged by the passage of time. You also show us the way into the future and we have but to look to you for guidance. And so, we take a moment to reflect on this and, because the cycle continues, we turn our minds to you, we acknowledge you and we give thanks. So be it in our minds. Once again this morning, we have felt the presence of unseen forces that are around us at all times. We feel the air. You represent the breath of the Creator and you bind all life together in an unbreakable circle. We understand that we must respect your gift for, should we ever destroy you, we will destroy all life and the cycle will end. We feel the presence of the winds. Coming from the Four Directions, you bring the changing seasons. You help to keep the air we breathe clean and pure. We understand the importance of your gift and we are grateful. And so, we turn our minds to you, we acknowledge you and we give thanks. So be it in our minds. And now we come to you, Sonkwaiatison. You have created all this and you have given us certain instructions. We see that all the different nations of your Creation struggle to carry out the instructions you gave them in the beginning of time. They continue to strive in fulfilling their responsibilities and carrying out their duties as you have asked them to. It seems that only we, the two-legged, have difficulty in remembering your instructions. We seem to be blind to the lessons you have placed all around us. We are deaf to your teachings. We invite you to spend some time with us. Move among us, feel our hearts and our minds. We have done our best to remember our place within the Circle of Life. But, we are frail and afraid. We build many things to help us survive, to help us control your Creation. The Ohentonkariwatehkwen (the words that come before all others) help to remind us of our responsibilities and duties. One day, we hope that we will begin to see the wonders of your Creation. Perhaps we will learn to live in harmony with it, rather than trying to control it. Perhaps we will see that all things, and all people, have their rightful place in the Circle. We hope that you are pleased with us and that we have shown you the respect you merit. We have done our best to honour you and the rest of Creation. Finally, we acknowledge one another, female and male. We give greetings and thanks that we have this opportunity to spend some time together. We turn our minds to our ancestors and our Elders. You are the carriers of knowledge, of our history. We acknowledge the adults among us. You represent the bridge between the past and the future. We also acknowledge our youth and children. It is to you that we will pass on the responsibilities we now carry. Soon, you will take our place in facing the challenges of life. Soon, you will carry the burden of your people. Do not forget the ways of the past as you move toward the future. Remember that we are to walk softly on our sacred Mother, the Earth, for we walk on the faces of the unborn, those who have yet to rise and take up the challenges of existence. We must consider the effects our actions will have on their ability to live a good life.

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We offer a special thought for our families, our friends and our loved ones, wherever they may be. We ask that you watch over them and keep them well until we can rejoin them. If it should be your desire to call one of them back to your side, that will be a sad time and we will grieve. We understand, however, that this is the greatest honour we can achieve and we will try to not let our grief hold them back from the journey they must make. Finally, Sonkwaiatison, we ask that you give us all the courage, the strength and the wisdom to use the power of the good mind in all we do. Help us to speak clearly and honestly so that we may understand one another, how we feel and why. Help us to listen carefully to what others say and not to react in anger when negative things are said. Help us to understand that even painful words contain teachings and that we must sometimes look hard and listen carefully to find them. And so it is, Sonkwaiatison, that we have reflected on our place within the Circle of Life and on our responsibilities to all of Creation. Life continues, and we are grateful for what we have. So be it in our minds. Kanatiio (Allen Gabriel) Kanesatakeronnon (Kanesatake Mohawk, Bear Clan)

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Volume 1 - Looking Forward Looking Back

Opening the Door THIS REPORT of the Royal Commission on Aboriginal Peoples concerns government policy with respect to the original historical nations of this country. Those nations are important to Canada, and how Canada relates to them defines in large measure its sense of justice and its image in its own eyes and before the world. We urge governments at all levels to open the door to Aboriginal participation in the life and governance of Canada.

The approach proposed in this report offers the prospect of change in both the short and the long term. Broad support can be expected in Canada for policy changes that better the life conditions of Aboriginal people, that lead to the enhancement of educational and economic opportunities, and that help to establish healthier and happier neighbourhoods. Aboriginal people can be expected to welcome changes that assist individuals and communities to gather strength and renew themselves. But our approach extends beyond these changes. In the Commission's public hearings, Aboriginal people explained to us that their various nations have distinct cultures, with unique knowledge and understandings of the world around them. Across the globe, there is a growing awareness that cultural diversity is of critical importance for the survival of humanity. An appreciation of the uncertainty of the future carries with it an appreciation of the value of unique cultural insights. The preservation of distinct cultures is important to Canada, therefore, not only in the interests of the various cultural groups, but as a matter of enlightened Canadian self-interest. Justice demands, moreover, that the terms of the original agreements under which some Aboriginal peoples agreed to become part of Canada be upheld. Promises ought to be kept. Undertakings ought to be fulfilled. Solemn commitments ought to be honoured. Equality and security require the majority population of Canada to accommodate the distinct cultures of all its historical nations. Individuals are born into these cultures, and they secure their personal identity through the group into which they are born. This is their birthright, and it demands the recognition and respect of all Canadians and the protection of the state. Aboriginal peoples anticipate and desire a process for continuing the historical work of Confederation. Their goal is not to undo the Canadian federation; their goal is to complete it. It is well known that the Aboriginal peoples in whose ancient homelands Canada was created have not had an opportunity to participate in creating Canada's federal union; they seek now a just accommodation within it. The goal is the realization for everyone in Canada of the principles upon which the constitution and the treaties both rest, that is, a genuinely participatory and democratic society made up of peoples who have chosen freely to confederate.

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Canada's image of itself and its image in the eyes of others will be enhanced by changes that properly acknowledge the indigenous North American foundations upon which this country has been built. Aboriginal people generally do not see themselves, their cultures, or their values reflected in Canada's public institutions. They are now considering the nature and scope of their own public institutions to provide the security for their individual and collective identities that Canada has failed to furnish. The legitimate claims of Aboriginal peoples challenge Canada's sense of justice and its capacity to accommodate both multinational citizenship and universal respect for human rights. More effective Aboriginal participation in Canadian institutions should be supplemented by legitimate Aboriginal institutions, thus combining self-rule and shared rule. The Commission's proposals are not concerned with multicultural policy but with a vision of a just multinational federation that recognizes its historical foundations and values its historical nations as an integral part of the Canadian identity and the Canadian political fabric. Historically, the door has not been open for the just participation of Aboriginal peoples and their representatives in Canada. The Commission heard about misunderstandings concerning the treaties and about federal policies that ignored solemn commitments made in these treaties once the newcomers were settled and assumed control. Federal legislation, we find, has unilaterally defined 'Indians' without regard to the terms of the treaties and without regard to cultural and national differences among Aboriginal peoples. The participation of Aboriginal people as individuals, generally on the margins of society, has not met the standards of justice that Commissioners believe Canadians would wish to uphold. History also shows how ancient societies in this part of North America were dispossessed of their homelands and made wards of a state that sought to obliterate their cultural and political institutions. History shows too attempts to explain away this dispossession by legally ignoring Aboriginal peoples, in effect declaring the land terra nullius — empty of people who mattered. This is not a history of which most Canadians are aware. It is not a history of democratic participation, nor is it a history that reflects well on Canada or its sense of justice. It is essential to recognize and respect the common humanity of all people — to recognize and respect Aboriginal people as people who do matter and whose history matters, not only to them but to all Canadians. This Commission concludes that a fundamental prerequisite of government policy making in relation to Aboriginal peoples is the participation of Aboriginal peoples themselves. Without their participation there can be no legitimacy and no justice. Strong arguments are made, and will continue to be made, by Aboriginal peoples to challenge the legitimacy of Canada's exercise of power over them. Aboriginal people are rapidly gaining greater political consciousness and asserting their rights not only to better living conditions but to greater autonomy. Opening the door to Aboriginal peoples' participation is also a means of promoting social harmony. The unilateral exercise of federal authority to make and implement policy can

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no longer be expected to attract enduring legitimacy; it must be discarded in favour of the principle of participation. It is vital for Canada to be seen as legitimate by all its inhabitants. The strength of a geographically vast and culturally diverse country like Canada rests on the commitment and mutual respect of its peoples. The true vision of Canada is that of a multinational country, strengthened by the commitment of individuals to their natural and historical ties and to a federal union that promotes the equal security and development of all its partners. Federal policy toward Aboriginal people has its roots in a power set out in the constitution of 1867. Since early British colonial times a legislative power has been reserved to the central government to protect the interests of Aboriginal peoples, first from local settler interests and, since 1867, from provincial interests. This unique feature of Canadian federalism has continuing significance today, since it includes the means to carry out positive obligations owed to Aboriginal peoples. In this report we explain that constitutional, legal, and political obligations proscribe the unilateral and arbitrary exercise of this federal power. It must be exercised in furtherance of the interests of Aboriginal peoples and not in derogation of those interests. This is a basic principle of the constitution supplemental to the principle of participation. Contemporary Canadians reject the paternalism of yesterday and recognize that Aboriginal people know best how to define and promote their own interests. This report makes a number of recommendations to ensure that the principle of participation is the basis of future federal policy. The federal obligation to act in the interests of Aboriginal peoples is now being recognized and implemented by the courts through the concept of fiduciary duty. This concept requires governments to acknowledge Aboriginal people as people who matter, not only in history but in real life today, and who have rights at common law and in the constitution that it is the federal government's duty to protect. The concept of fiduciary duty and the principle of participation are intimately connected. Whenever governments intend to exercise their constitutional powers to legislate or make policies that may affect Aboriginal peoples in a material way, particularly in an adverse way, they would be wise to engage first in a process of consultation. The constraints imposed by the common law and the constitution on the exercise of arbitrary governmental power would seem to require no less. The courts have also begun to probe the nature of Aboriginal peoples' rights, including the relationship between Aboriginal individuals and groups and Canadian institutions. Commissioners believe that the door to Aboriginal group participation in Canada has been opened by recognition of an inherent right of self-government in the common law of Aboriginal rights and in the treaties. This right of peoples to be self-governing affords a solid legal foundation on which governments in Canada can enter into agreements with Aboriginal peoples to establish appropriate working relationships. There is no further need, if indeed there ever was a need, for unilateral government action. The treaty is still Aboriginal peoples' preferred model.

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Where treaties have already been made, they establish a unique legal and political relationship that the federal government is bound to preserve and maintain. New and renewed treaties can serve the same purpose. The role of the courts is limited in significant ways. They develop the law of Aboriginal and treaty rights on the basis of a particular set of facts before them in each case. They cannot design an entire legislative scheme to implement self-government. Courts must function within the parameters of existing constitutional structures; they cannot innovate or accommodate outside these structures. They are also bound by the doctrine of precedent to apply principles enunciated in earlier cases in which Aboriginal peoples had no representation and their voices were not heard. For these reasons courts can become unwitting instruments of division rather than instruments of reconciliation. We learned from our hearings and from the research we commissioned that Aboriginal peoples share strongly held views of the relationship between their nations, their lands, and their obligations to the Creator. The concept of Aboriginal title as developed in English and Canadian courts is at sharp variance with these views, as are the courts' interpretations of some of the historical treaties. It is crucial that judicial decisions on such fundamental issues be made on the basis of full knowledge and understanding of Aboriginal cultures and spiritual beliefs. To do otherwise is to attribute to people perceptions and intentions that are repugnant to the very essence of their being. Participation in the courts requires Aboriginal people to plead their cases as petitioners in a forum of adversaries established under Canadian law. There is a certain irony in this, since in many instances the adversary they face is also the fiduciary that is obligated to protect their interests. The situation is, to say the least, anomalous, and it would appear that the courts cannot really substitute for a political forum where Aboriginal representatives can develop their own visions of political autonomy within Canada. There are other, broader considerations to assess in considering the nature of Aboriginal participation in the institutions of Canada. In 1982 the constitution was amended to recognize and affirm the Aboriginal and treaty rights of the Aboriginal peoples of Canada. Those amendments contained a promise to amend the constitution further to determine the nature and scope of those rights. The constitutional promise was not fulfilled in the first ministers conferences conducted for that purpose, and the basic constitutional promise of 1982 is still outstanding. There have been important changes in recent years in the nature of Aboriginal peoples' participation in statecraft in Canada. Since the white paper proposal to eliminate the distinct status of 'Indians' and the prime minister's refusal in 1969 to recognize the treaties, Canadian society has developed a greater willingness to include Aboriginal peoples as partners in the Canadian enterprise. This has been shown by the participation of Aboriginal representatives in first ministers meetings on constitutional reform, among other changes. With increased participation, Aboriginal peoples anticipate that they, and their voices, will matter more in the Canada of the future. In a sense, participation in the Canadian polity has created a more just image of Canadian society, but that image will

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remain what it is — an image — until participation succeeds in achieving a full measure of justice for Canada's First Peoples.

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Volume 1 - Looking Forward Looking Back

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Getting Started The geese migrate because they have responsibilities to fulfil at different times and in different places. Before they fly they gather together and store up energy. I believe strongly that our people are gathering together now, just like the geese getting ready to fly. I am tremendously optimistic that we will soon take on the responsibilities we were meant to carry in the world at large. Jim Bourque1

As an ordinary Canadian I feel deeply that this wonderful country is at a crucial, and very fragile, juncture in its history. One of the major reasons for this fragility is the deep sense of alienation and frustration felt by, I believe, the vast majority of Canadian Indians, Inuit and Métis. Accordingly, any process of change or reform in Canada — whether constitutional, economic or social — should not proceed, and cannot succeed, without aboriginal issues being an important part of the agenda. Brian Dickson2 ALTHOUGH JIM BOURQUE and Brian Dickson come from different cultures and backgrounds, they are recognized for their vision and dedication to the common good. They give voice to a sense of anticipation, apparent in many quarters of Canadian society, that Aboriginal people are poised to assume a vital role in shaping the future of Canada. But optimism about what can be achieved in the relationship between the Aboriginal and nonAboriginal people of this land is tempered by the remembrance of past failures to come to one mind and by some foreboding that another failure could have dire consequences.

This Royal Commission on Aboriginal Peoples was born in a time of ferment when the future of the Canadian federation was being debated passionately. It came to fruition in the troubled months following the demise of the Meech Lake Accord and the confrontation, in the summer of 1990, between Mohawks and the power of the Canadian state at Kanesatake (Oka), Quebec.3 As we complete the drafting of our report in 1995, further confrontations at Ipperwash, Ontario, and Gustafson Lake, British Columbia, signal that the underlying issues that gave rise to our Commission are far from resolved.

1. Interpreting the Mandate The Commission, established on 26 August 1991, was given a comprehensive mandate:

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The Commission of Inquiry should investigate the evolution of the relationship among aboriginal peoples (Indian, Inuit and Métis), the Canadian government, and Canadian society as a whole. It should propose specific solutions, rooted in domestic and international experience, to the problems which have plagued those relationships and which confront aboriginal peoples today. The Commission should examine all issues which it deems to be relevant to any or all of the aboriginal peoples of Canada...4 In four years of consultations, research and reflection we have come to see clearly that the problems that plague the relationship cannot be addressed exclusively or primarily as Aboriginal issues. The questions we probed during our inquiry and the solutions that emerged from our deliberations led us back insistently to examine the premises on which Canadian law and government institutions are founded and the human values that Canadians see as the core of their identity. The analysis we present and the avenues of reconciliation we propose in this and the other four volumes of our report do not attempt to resolve the so-called 'Aboriginal' problem.5 Identifying it as an Aboriginal problem inevitably places the onus on Aboriginal people to desist from 'troublesome behaviour'. It is an assimilationist approach, the kind that has been attempted repeatedly in the past, seeking to eradicate Aboriginal language, culture and political institutions from the face of Canada and to absorb Aboriginal people into the body politic — so that there are no discernible Aboriginal people and thus, no Aboriginal problem. Our report proposes instead that the relationship between Aboriginal and non-Aboriginal people in Canada be restructured fundamentally and grounded in ethical principles to which all participants subscribe freely. The necessity of restructuring is made evident by a frank assessment of past relations. We urge Canadians to consider anew the character of the Aboriginal nations that have inhabited these lands from time immemorial; to reflect on the way the Aboriginal nations in most circumstances welcomed the first newcomers in friendship; to ask themselves how the newcomers responded to that generous gesture by gaining control of their lands and resources and treating them as inferior and uncivilized; and how they were designated as wards of the federal government like children incapable of looking after themselves. Canadians should reflect too on how we moved them from place to place to make way for 'progress', 'development' and 'settlement', and how we took their children from them and tried to make them over in our image. This is not an attractive picture, and we do not wish to dwell on it. But it is sometimes necessary to look back in order to move forward. The co-operative relationships that generally characterized the first contact between Aboriginal and non-Aboriginal people must be restored, and we believe that understanding just how, when and why things started to go wrong will help achieve this goal.

2. Looking Ahead

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In this volume we turn our attention to Canadian history, presenting glimpses of the relationship between Aboriginal and non-Aboriginal people as it has unfolded at various times and places and examining four policies that have cast a long shadow over that relationship. We argue that consideration of this history will surely persuade the thoughtful reader that the false assumptions and abuses of power that have pervaded Canada's treatment of Aboriginal people are inconsistent with the morality of an enlightened nation. We delineate the elements of the turning point we are approaching, or that may already be upon us, and we explore the vitality of diverse Aboriginal traditions and their relevance for contemporary life. In the concluding chapter we set out four principles we adopted as reference points for our own work and that we propose as the ethical ground on which a new relationship can and should be built. The structures needed to transform political and economic relations between Aboriginal people and the rest of Canadian society are the subject of Volume 2, entitled Restructuring the Relationship. Treaties are the historical expressions of nation-to-nation exchanges. Aboriginal people have always regarded treaties as embodying a living relationship, and in Volume 2 we propose how they can serve to structure relations in the future. New institutions of self-government, bringing together ancient wisdom and contemporary realities, are already emerging in various regions, and we undertake to describe the varied paths of development that such institutions might take. We maintain that Aboriginal nations have an inherent right to determine their own future within Canada and that the governments of Aboriginal nations should be recognized as a third order of government in the Canadian federation. Treaties and agreements that provide for the orderly evolution of relations between Aboriginal governments and their federal and provincial counterparts will be advantageous for Aboriginal nations and for Canadian society as a whole. Resolution of long-standing questions about land will require new approaches to conceptualizing land title and managing land use. We introduced some of these approaches in our report on extinguishment.6 We develop these further in Volume 2 with a view to achieving redistribution of land and resources between Aboriginal and non-Aboriginal people, as a matter of justice and as a means of re-establishing the economic base for Aboriginal self-reliance. The concluding chapter of Volume 2 addresses various means by which Aboriginal economies can be put on a stable footing through mixed economies that rely in part on traditional modes of harvesting renewable resources and through fuller engagement of Aboriginal individuals and institutions in wage and market economies. We address the requirements for structuring a new relationship in advance of urgent issues of social policy because commitment to changing historical patterns of Aboriginal disadvantage must be reflected in public institutions. Structural change will require time and can be accomplished only with the active participation of healthy, well-educated citizens, nurtured by stable families and supportive communities. Action to establish the political, economic and governmental institutions detailed in Volume 2 must therefore be accompanied by effective action to resolve persistent social problems that undermine the morale and vitality of Aboriginal nations and their communities.

13

In Volume 3, Gathering Strength, we address practical questions of how public policy can help to restore Aboriginal families to wholeness and health, how health and social services can be reorganized to use Aboriginal expertise and Aboriginal support systems, how housing and community infrastructure can be brought up to a standard that supports health and dignity, and how educational effort can be applied more effectively. We also consider the policy implications of a commitment to acknowledging and affirming the importance of Aboriginal languages and cultures in Canadian society. We emphasize that adoption of far-sighted, culturally appropriate policies and initiatives, under the authority of Aboriginal people themselves, cannot and should not await new regimes of selfgovernment. Our social policy recommendations are designed to be implemented in the current environment, to enhance Aboriginal capacity for self-reliance and selfgovernment, and to make inroads immediately on unacceptable social conditions and relative disadvantage. In Volume 4, Perspectives and Realities, we highlight the diversity that characterizes First Nations, Inuit and Métis people in their various regions and communities. We note that Aboriginal people affirm their intention to retain their distinct identities in relation to non-Aboriginal people; they also affirm their distinctive histories, cultures and identities in relation to one another. In Volume 4 we bring together the voices of women, elders and youth speaking on a range of issues in our mandate, and we examine particular challenges confronted by Métis people and by Aboriginal people living in the North and in urban settings. In his report to the prime minister on the mandate and membership of this Commission, Brian Dickson urged "that the government actively address the process and mechanisms for considering, adopting and implementing the Commission's recommendations."7 To assist in this process, in Volume 5, Renewal: A Twenty-Year Commitment, we present a plan for implementation, including a program of public education and an estimate of the financial costs of not taking action. The human costs of maintaining antiquated laws, economic disadvantage and a pervasive sense of powerlessness among Aboriginal people are evident throughout the five volumes of this report and others published earlier.8

3. Imperatives for Change In our review of past commissions and task forces we discovered many well-founded recommendations for improving the situation of Aboriginal people in Canada.9 Yet in the 30 years since a comprehensive survey of Indians in Canada was published in the Hawthorn report,10 the gains that are recognized as widely accepted indicators of wellbeing have been very modest. At the same time the demands of Aboriginal people for recognition as nations and peoples with the right to determine their own place in Canadian society and to shape their own future have become more insistent. We understand the growing support in many parts of Canadian society for greater opportunities for control by Aboriginal people of decisions that affect their collective lives, but we see the need to go beyond a reorganization of existing structures and jurisdictions.

14

We believe firmly that the time has come to resolve a fundamental contradiction at the heart of Canada: that while we assume the role of defender of human rights in the international community, we retain, in our conception of Canada's origins and make-up, the remnants of colonial attitudes of cultural superiority that do violence to the Aboriginal peoples to whom they are directed. Restoring Aboriginal nations to a place of honour in our shared history, and recognizing their continuing presence as collectives participating in Canadian life, are therefore fundamental to the changes we propose. The contributions of Aboriginal people to the richness and diversity of Canadian life are gaining visibility in discussions of environment and northern development, in the arts and education and, as we will see in Volume 3, in leading-edge thinking about the foundations of health. For these contributions to the common good to be realized fully, Aboriginal people require avenues, which have been largely denied by Canadian institutions, for expressing their distinctive world view and applying their traditions of knowledge. The resultant loss has impeded cross-cultural understanding and denied successive generations of Canadians the cultural resources that are part of our shared heritage. Demographic projections, reflecting the fact that Aboriginal people will assume a larger presence in Canada in the next two decades, add to the motivation for embarking on a new course. The well-documented social and economic disadvantage experienced by Aboriginal people as a whole and the increasing urbanization that has occurred in the past generation add other imperatives for change. The social unrest that invariably ensues when a disaffected underclass lives in close proximity to a relatively privileged majority is well known. Redressing social and economic inequities will benefit Aboriginal people in improving living conditions and quality of community life; it will benefit all Canadians as Aboriginal people become full participants in Canadian society, contributing to the productivity and well-being of society as a whole. We make the case, in this and subsequent volumes, not only for more just treatment of Aboriginal people now and in the future but also for restorative justice, by which we mean the obligation to relinquish control of that which has been unjustly appropriated: the authority of Aboriginal nations to govern their own affairs; control of lands and resources essential to the livelihood of families and communities; and jurisdiction over education, child welfare and community services. We also argue for measures to achieve corrective justice, eliminating the disparities in economic base and individual and collective well-being that have resulted from unjust treatment in the past. Making room in institutions of governance for Aboriginal nations to exercise control over their collective lives and safeguard the interests of their citizens is one step on the way to a more just relationship. Correcting negative effects of past treatment is another. Both steps could conceivably be undertaken without a fundamental realignment of relations between Aboriginal and non-Aboriginal people. Even if that happened, the changes would still fall short of the transformation in consciousness that we believe is necessary and desirable. Political, economic and social restructuring is part of the equation, but we also envisage relations characterized by respect and reciprocity, relations in which

15

Aboriginal people exercise their sacred gifts in the service of the whole community, and newcomers and their descendants come to value the wisdom of this ancient land as well as its wealth and beauty.

4. A Matter of Trust We have no illusions about the difficulties standing in the way of negotiations to renew the relationship. Efforts at reform, whether in political relations or social policies over the past 25 years, have failed repeatedly to effect substantial change, because Aboriginal and government stakeholders have frequently reached an impasse on matters of principle or perception even before practical problems could be addressed. Such was the case throughout the 1980s regarding the principle of the inherent right of Aboriginal peoples to govern themselves. Such was the case with extinguishment; Aboriginal people and the Canadian government maintained irreconcilable positions that stalled the settlement of land questions, even though both parties sincerely wanted a resolution. On both these issues the Commission has made proposals designed to find common ground.11 But moving away from entrenched, polarized positions is extremely difficult when one stakeholder or both feel threatened. How do participants move away from a relationship characterized by disparity in power, violations of trust, and lingering, unresolved disputes? How do they move toward a relationship of power sharing, mutual respect and joint problem solving? Much of our final report is devoted to finding answers that are unique to Canadian circumstances, but there is much to be learned from the experience of other countries that are trying to repair troubled relationships between peoples.12 We expect, too, that the analysis and recommendations in our report will add to the repertoire of creative solutions to historical problems being explored by nation-states and Aboriginal peoples around the globe. The starting point for renewing the relationship, urged upon Commissioners by Aboriginal people speaking to us in hearings across the country, must be deliberate action to "set the record straight". With few exceptions, the official record of Canada's past — recorded in government documents, in the journals and letters of traders and colonial officers, in history books and in court judgements — ignores and negates Aboriginal people's view of themselves and their encounters with settler society. Until the story of life in Canada, as Aboriginal people know it, finds a place in all Canadians' knowledge of their past, the wounds from historical violence and neglect will continue to fester — denied by Canadians at large and, perversely, generating shame in Aboriginal people because they cannot shake off the sense of powerlessness that made them vulnerable to injury in the first place. Violations of solemn promises in the treaties, inhumane conditions in residential schools, the uprooting of whole communities, the denial of rights and respect to patriotic Aboriginal veterans of two world wars, and the great injustices and small indignities inflicted by administration of the Indian Act — all take on mythic power to symbolize present experiences of unrelenting injustice.

16

The Commission is convinced that before Aboriginal and non-Aboriginal people can get on with the work of reconciliation, a great cleansing of the wounds of the past must take place. The government of Canada, on behalf of the Canadian people, must acknowledge and express deep regret for the spiritual, cultural, economic and physical violence visited upon Aboriginal people, as individuals and as nations, in the past. And they must make a public commitment that such violence will never again be permitted or supported. Aboriginal people need to free themselves of the anger and fear that surges up in any human being or collective in response to insult and injury, and extend forgiveness to the representatives of the society that has wronged them. In this respect the sacred ceremonies and spiritual traditions of diverse nations can be very instructive, preparing people to let go of negative feelings that can sap the energy needed for more positive pursuits. The purpose of engaging in a transaction of acknowledgement and forgiveness is not to bind Aboriginal and non-Aboriginal people in a repeating drama of blaming and guilt, but jointly to acknowledge the past so that both sides are freed to embrace a shared future with a measure of trust. Because we believe that the restoration of trust is essential to the great enterprise of forging peaceful relations, our recommendations for formally entering into a new or renewed relationship, to be marked by a Royal Proclamation, include an acknowledgement of wrongs inflicted on Aboriginal people in the past. Ensuring that trust, once engendered, is honoured, is a continuing responsibility, one that cannot be left to governments alone, pulled as they are by the tides of events and fleeting priorities. The establishment of institutions to formalize and implement a renewed relationship will lend stability to the commitments we are recommending. In addition, in Volume 5 we set out a proposal for public education to broaden awareness of the heritage that all Canadians share with Aboriginal people. It is our conviction that appreciation of the distinctive place that Aboriginal nations occupy in the Canadian federation and of the mutual, continuing responsibilities engendered by that relationship, must permeate Canadian intellectual and ceremonial life. To this end, some of our recommendations address the need to ensure that Aboriginal history is documented and disseminated and that Aboriginal symbols take their place alongside the symbols of Canada's colonial past in public events. A Métis senior speaking at our Calgary hearings described in personal terms the importance of shared memories and public affirmation in establishing bonds between generations: It is important to us that when we reminisce, the listeners will nod their heads and say, "Yes, that is how it was. I remember." Alice J. Wylie Mawusow Seniors Club Calgary, Alberta, 26 May 199313

17

Let us now begin a walk together through history to establish common perceptions of where the Aboriginal and non-Aboriginal people who share this land have come from and to search out common ground on which to build a shared future.

Notes: 1 Personal communication to Commissioners, May 1994. The Honourable Jim Bourque, PC, is a Métis person who is recognized, particularly in the Northwest Territories and the Yukon, as an elder. His experience and service have included living on the land as a trapper and serving as president of the Metis Association of the Northwest Territories, deputy minister of renewable resources in the government of the Northwest Territories, and chair of the commission on constitutional development in the Western Arctic. 2 Report of the Special Representative respecting the Royal Commission on Aboriginal Peoples (Ottawa: 2 August 1991), p. 3. The Right Honourable Brian Dickson is the former chief justice of Canada. He was appointed by the prime minister as special representative respecting the Royal Commission on Aboriginal Peoples. The quotation is from his report recommending the establishment of the Commission. 3 For a discussion of events surrounding the establishment of the Commission, see Chapter 7 in this volume. 4 The full text of the terms of reference, as set out in the order in council of 26 August 1991 (P.C. 1991-1597), is provided in Appendix A. 5 For an overview of the rest of our report, see the tables of contents for the other four volumes in Appendix C of this volume. 6 Royal Commission on Aboriginal Peoples [RCAP], Treaty Making in the Spirit of Coexistence: An Alternative to Extinguishment (Ottawa: Supply and Services, 1995). 7 Report of the Special Representative (cited in note 2), p. 27. 8 See RCAP,The High Arctic Relocation: A Report on the 1953-55 Relocation (1994); Choosing Life: Special Report on Suicide Among Aboriginal People (1995); Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996). 9 RCAP, Public Policy and Aboriginal Peoples, 1965-1992, 4 volumes (Ottawa: Supply and Services, 1993-1996). 10 Indian Affairs and Northern Development, A Survey of the Contemporary Indians of Canada, ed. H.B. Hawthorn, 2 volumes (Ottawa: Information Canada, 1966, 1967).

18

11 RCAP, Partners in Confederation: Aboriginal Peoples, Self-Government, and the Constitution (Ottawa: Supply and Services, 1993); and Treaty Making in the Spirit of Coexistence (cited in note 6). 12 The government of New Zealand has undertaken a process of reconciliation with the signing of the Deed of Settlement by the Crown and Waikato-Tainui on 22 May 1995 and passage of the Waikato-Tainui Raupatu Claims Settlement Act by the New Zealand Parliament. The act was given royal assent in November 1995. The government of Australia established the Council for Aboriginal Reconciliation in September 1991. It is composed of 25 members — 12 Aborigines from various parts of the country, two Torres Strait Islanders, and 11 non-Aboriginal Australians representing such sectors as government, trade unions, business, mining, agriculture and the media. Its goals are to increase understanding between indigenous and non-indigenous Australians, to provide a forum for discussing issues related to reconciliation and policies for promoting reconciliation, and to consult on whether a formal document of reconciliation would advance relations. See Henry Reynolds, “Aboriginal Governance in Australia”, research study prepared for RCAP (1994). See also Douglas Sanders, “Developing a Modern International Law on the Rights of Indigenous Peoples”, and “Indigenous Peoples and Canada’s Role on the International Stage”, research reports prepared for RCAP (1994); and Joseph Montville, “The Healing Function in Political Conflict Resolution”, in Conflict Resolution Theory and Practice: Integration and Application, ed. Dennis J.D. Sandole and Hugo van der Merwe (Manchester: Manchester University Press, 1993). 13 Quotations from transcripts of the Commission’s public hearings are identified with the speaker’s name and affiliation (if any) and the location and date of the hearing. See A Note About Sources at the beginning of this volume for information about transcripts and other Commission publications.

19

Volume 1 - Looking Forward Looking Back

2

From Time Immemorial: A Demographic Profile THE TERM ABORIGINAL obscures the distinctiveness of the First Peoples of Canada — Inuit, Métis and First Nations. With linguistic differences, for example, there are more than 50 distinct groupings among First Nations alone. Among Inuit, there are several dialects within Inuktitut, and the Métis people speak a variety of First Nations languages such as Cree, Ojibwa or Chipewyan, as well as Michif, which evolved out of their mixed ancestry.

To provide a context for the discussion of relations between Aboriginal and nonAboriginal people, we look briefly at the population size, location and demographic characteristics of Aboriginal peoples in Canada.

1. Historical Population Levels Aboriginal people often say that they have been here since time immemorial and, indeed, evidence of their presence as Indigenous people is well documented. Estimates of the date of human habitation in North America range up to 40,000 years ago, and Olive Dickason reports that By about 11,000 [years ago] humans were inhabiting the length and breadth of the Americas, with the greatest concentration of population being along the Pacific coast of the two continents. ...About 5,000-8,000 years ago, when climate, sea levels and land stabilized into configurations that approximate those of today, humans crossed a population and cultural threshold, if one is to judge by the increase in numbers and complexity of archaeological sites.1 Considerable debate among experts continues with respect to the size of the indigenous population at the point of first sustained contact with Europeans. In the area that was to become Canada, an early scholarly estimate is 221,000 people, a figure derived by compiling published reports, notes of European explorers and other sources to estimate the size of the various nations.2 This estimate has been criticized because it pertains not to initial contact but rather to initial extensive contact — a time when indigenous populations could already have been seriously affected by diseases spread through incidental contact with Europeans, or indeed through indirect contact via diseases spread through indigenous trading networks.

20

Using different methodologies, other experts derive estimates that exceed 2 million people.3 Indeed, Dickason points out that estimates of the size of pre-contact populations in the western hemisphere have been increasing steadily in recent years: They have increased with better understanding of Native subsistence bases and with greater awareness of the effect of imported diseases in the sixteenth century; in some cases these spread far ahead of the actual presence of Europeans, decimating up to 93 per cent of Native populations.... Archaeological evidence is mounting to the point where it can now be argued with growing conviction, if not absolute proof, that the preColumbian Americas were inhabited in large part to the carrying capacities of the land for the ways of life that were being followed and the types of food preferred.4 The figure of 500,000 for the indigenous population at the time of initial sustained contact with Europeans is perhaps the most widely accepted today,5 although many would regard it as a conservative estimate. From Figure 2.1 we see that the territories of the various Aboriginal peoples at the time of contact covered the entire area of what was eventually to become Canada. The diseases brought to North America by Europeans from the late 1400s onward, diseases to which the indigenous inhabitants had little resistance, had an enormous impact on Aboriginal population levels. During 200 to 300 years of contact, diseases such as smallpox, tuberculosis, influenza, scarlet fever and measles reduced the population drastically.6 Armed hostilities and starvation also claimed many lives. The extent of the decline varied from one Aboriginal nation to another and also depended, of course, on the population size before contact. However, a census estimate of the size of the Aboriginal population in Canada in 1871 places the number at 102,000 (Figure 2.2). It would take more than 100 years — until the early 1980s — before the size of the Aboriginal population again reached the 500,000 mark.

21

During the period from the mid-1940s to the present there was a rapid growth in the Aboriginal population. For people registered as 'Indians' under the Indian Act, birth rates ran very high, compared to that of the total population of Canada, until the mid-1960s. At the same time, with improvements in health care delivery on reserves and gradual improvements in community infrastructure, the high rate of infant mortality began a rapid decline in the 1960s. Consequently, the rate of natural increase (the difference between the number of births and the number of deaths) was very high in this period. The birth rate began a rapid decline in the latter part of the 1960s, however, and this decline continued into the 1970s, although the rate never fell as low as the overall Canadian rate did in that period. While equivalent data are sparse for other Aboriginal groups, their age structures appear to match closely that of the registered Indian population, suggesting that they too experienced a demographic transition from high fertility rates to lower ones along with significant declines in mortality rates.

2. Current Population According to the two most recently published data sources, the number of Aboriginal people in Canada in 1991 was between 626,000 and just over 1,000,000, depending on the definition and data source used. The 1991 census reported the latter figure, based on a question that determined cultural origins or ancestry, while the former figure resulted from a 1991 national survey of Aboriginal people known as the Aboriginal Peoples Survey (APS), also conducted by Statistics Canada. Unlike the census, this survey focused on those who identified with their Aboriginal ancestry.7 Both approaches to identifying the Aboriginal population have merit, but the Commission has relied primarily on the count of those who identify with their Aboriginal ancestry. It does so knowing that some portion of the 375,000 who do not do so now may well do so 22

in the future. However, there was some undercoverage in the APS, and Statistics Canada has adjusted the 626,000 figure (at the Commission's request) to compensate for it. Thus, the adjusted figure for the identity-based Aboriginal population is 720,000.8 As noted, a full survey of Aboriginal people was last conducted in 1991. To establish the population size for 1996 and later years, the Commission asked Statistics Canada to develop a population projection model. By 1996 the total Aboriginal population is projected to be just over 811,400 or 2.7 per cent of the total population of Canada (29,963,700).9 The population of the major Aboriginal groups projected for 1996 is shown in Table 2.1. For statistical and other purposes, the federal government usually divides the Aboriginal population into four categories: North American Indians registered under the Indian Act, North American Indians not registered under the Indian Act (the non-status population), Métis people and Inuit. Basic population characteristics of each group are described below using the 1991 Aboriginal Peoples Survey as the source. TABLE 2.1 Estimated Aboriginal Identity Population by Aboriginal Group, 1996 1996 Population (projected) Aboriginal Group

Number

Per Cent

North American Indian

624,000

76.9

Métis

152,800

18.8

Inuit

42,500

5.2

Note: Population counts are rounded to the nearest hundred. Count of people identifying themselves as North American Indian includes registered and non-registered people.

2.1 North American Registered Indian Population The North American Indian (identity-based) population was estimated at 550,700 in 1991, 438,000 of whom were registered Indians.10 While a majority of registered North American Indians (58.1 per cent) lived on reserves and in Indian settlements (254,600), a sizeable minority (41.9 per cent) lived in non-reserve areas (estimated at 183,400), most in urban locations (Figure 2.3). In terms of their geographic distribution, 62 per cent of registered North American Indians lived in what the Commission has defined as southern Canada, while the other 38 per cent lived in the North (32 per cent are in the mid-north and 6 per cent in the far north). Within the mid-north zone, two-thirds of the population lived on reserves and in settlements.11 In the south, the population was more likely to live in non-reserve areas than on reserves (Table 2.2).

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TABLE 2.2 Aboriginal Identity Population Percentage Distribution by Zone of Residence and Aboriginal Identity Group, 1991 North American Indian Zone of Residence Registered Non-Registered Métis Inuit Total Far North

5.9

2.1

4.5 88.8

Mid-North

32.2

17.4

25.0

0.8

26.4

On-reserve

20.7

1.7

2.0

0.1

12.4

Non-reserve

11.6

15.7

22.9

0.8

14.0

South

61.8

80.5

70.5 10.3

63.9

On-reserve

24.5

1.5

Non-reserve

37.3

79.0

0.6

9.7

0.1

14.2

69.9 10.3

49.7

Notes: 1. Based on unadjusted 1991 APS data. 2. Total includes North American Indian population with unknown registration status and population reporting multiple responses to the Aboriginal identity question in the 1991 Aboriginal Peoples Survey. Source: Statistics Canada, Aboriginal Peoples Survey, custom tabulations (1991).

Perhaps the most important issue raised during the Commission's hearings was maintenance of cultural identity. In Table 2.3, estimates for the North America Indian population are presented by linguistic/cultural affiliation.12 For example, the Cree make up the largest linguistic group (31 per cent of this population), followed by the Ojibwa (about 22 per cent).

24

TABLE 2.3 Estimated Adjusted Registered North American Indian Identity Population Distribution by Linguistic/Cultural Grouping, 1991 Adjusted Identity

Adjusted Identity

number percentage

number percentage

Abenaki

1,385

0.3 Iroquois Confederacy (35,910)

Algonquins

6,635

1.5 -Mohawks

25,175

5.7

Attikameks

3,320

0.8 -Cayugas

3,770

0.9

Beavers

1,390

0.3 -Onéidas

4,395

1.0

0.2 -Onondagas

780

0.2

2.7 -Sénécas

530

0.1 0.3

Bella-Coolas Blackfoot

890 11,845

(7.3)

Carriers

6,260

1.4 -Tuscaroras

1,260

Tsilhqot'n

2,060

0.5 Kaskas

1,050

0.2

Coast Tsimshian

4,990

1.1 Kutenais

580

0.,1

Comox Cree Dakotas Delawares

0.3 Kwakwa ka'wakw

4,440

1.,0

137,680

1,210

3.,4 Lillooets

3,790

0.9

10,570

2.4 Malecites

3 ,490

0.8

1,400

0.3 Micmacs

16,965

3.9

10,530

2.4

Dene Nation

(20,100)

-Chipewyans

9 230

2.1 Nisg_a'as

3,705

0.8

-Dogribs

2,545

0.6 Nootkas

5,090

1.2

-Gwich'ins

1,970

0.4 Ojibwas

94,350

21.5

-Hares

1,170

0.3 Okanagans

2,605

0.6

-Slaveys

5,185

1.2 Potawatomis

140

0.03

Gitksan

4,210

1.0 Sarcee

900

0.2

Haida

2,560

0.6 Sechelt

695

0.2

Haisla

1,090

0.2 Sekani

745

0.2

Halkomelem

9,725

2.2 Shuswap

5,500

1.3

,445

Han

(4.6) Montagnais/Naskapis

0.1 Squamish

2,235

0.5

Heiltsuk

1,465

0.3 Straits

1,855

0.4

Huron

2,155

0.5 Tahltan

1,410

0.3

Thompson

4,170

1.0

Tlingit

1,425

0.3

Tutchone

2,290

0.5

Wet'suwet'en

1,705

0.4

438,000

99.6

Total

Notes: 1. Information on the methodology and data sources used to prepare this table is found in note 24 at the end of this chapter. 2. Totals may not add because of rounding. All population counts have been rounded to 0 or 5. 3. Grand total does not include the Innu of Labrador, who were not registered under the Indian Act. The 1991 census reported 1,165 persons as Montagnais/Naskapi (or Innu) in Newfoundland and Labrador. Source: See note 24 at the end of this chapter.

25

2.2 Non-Status Population A significant share of the North American Indian population is not registered under the Indian Act. In 1991 this population was estimated to be about 112,600. Geographically, the non-registered Indian population is distributed quite differently from the registered Indian population. About 80 per cent live in southern Canada, 17 per cent live in the midnorth and two per cent live in the far north, with a large proportion living in non-reserve areas (Table 2.2). The non-status Indian population will continue to grow not only through natural increase, but also because of the effects of Bill C-31, which amended the Indian Act in 1985. This change allowed a large number of persons who had lost their status under the act's old provisions to regain status, but it also has resulted and will continue to result in certain children not obtaining status under the amended Indian Act.13 Thus, by the year 2041, in the absence of action to address this situation, it has been predicted that the absolute size of the status Indian population will begin to decline, based on assumptions about future rates of marriage between people with status and those without it.14 In other words, within two generations, the ranks of the non-status population will swell at the expense of the status Indian population.

2.3 The Métis Population The 1982 constitutional amendments included the Métis people as one of the three Aboriginal peoples of Canada. The government has not kept records of this population. Before 1981, the term 'halfbreed' which no doubt included many Métis, was used in a limited number of censuses.15 In 1901, the census reported 34,481 'halfbreeds', and in 1941 the number reached 35,416.16 It was not until 1981 that the term Métis was used in the census, at which time approximately 126,000 persons gave their origin as Métis (as a single category response or as part of a multiple response on the ethnic origin question).17 As of 1991, the population self-identifying as Métis was estimated at 139,000.18 Regionally, most Métis people are concentrated in the prairie provinces, with an estimated population of 101,000 (Table 2.4). About 24,000 live in Ontario, Quebec and the Atlantic provinces, and a total of 14,000 in British Columbia, the Northwest Territories and the Yukon. The majority of Métis people reside in urban areas (65 per cent), while the remainder live in rural areas (32 per cent) and on reserves (about 3 per cent). TABLE 2.3 Estimated Adjusted Registered North American Indian Identity Population Distribution by Linguistic/Cultural Grouping, 1991 Adjusted Identity

Adjusted Identity

number percentage

number percentage

26

Abenaki

1,385

0.3 Iroquois Confederacy (35,910)

Algonquins

6,635

1.5 -Mohawks

25,175

5.7

Attikameks

3,320

0.8 -Cayugas

3,770

0.9

Beavers

1,390

0.3 -Onéidas

4,395

1.0

0.2 -Onondagas

780

0.2

2.7 -Sénécas

530

0.1 0.3

Bella-Coolas Blackfoot

890 11,845

(7.3)

Carriers

6,260

1.4 -Tuscaroras

1,260

Tsilhqot'n

2,060

0.5 Kaskas

1,050

0.2

Coast Tsimshian

4,990

1.1 Kutenais

580

0.,1

Comox Cree Dakotas Delawares

0.3 Kwakwa ka'wakw

4,440

1.0

137,680

1,210

3.,4 Lillooets

3,790

0.9

10,570

2.4 Malecites

3,490

0.8

1,400

0.3 Micmacs

16,965

3.9

Dene Nation

(20,100)

10,530

2.4

-Chipewyans

9,230

2.1 Nisg_a'as

3,705

0.8

-Dogribs

2,545

0.6 Nootkas

5,090

1.2

-Gwich'ins

1,970

0.4 Ojibwas

94,350

21.5

-Hares

1,170

0.3 Okanagans

2,605

0.6

-Slaveys

5,185

1.2 Potawatomis

140

0.03

Gitksan

4,210

1.0 Sarcee

900

0.2

Haida

2,560

0.6 Sechelt

695

0.2

Haisla

1,090

0.2 Sekani

745

0.2

Halkomelem

9,725

2.2 Shuswap

5,500

1.3

Han

(4.6) Montagnais/Naskapis

0.1 Squamish

2,235

0.5

Heiltsuk

1,465

445

0.3 Straits

1,855

0.4

Huron

2,155

0.5 Tahltan

1,410

0.3

Thompson

4,170

1.0

Tlingit

1,425

0.3

Tutchone

2,290

0.5

Wet'suwet'en

1,705

0.4

438,000

99.6

Total

Notes: 1. Information on the methodology and data sources used to prepare this table is found in note 24 at the end of this chapter. 2. Totals may not add because of rounding. All population counts have been rounded to 0 or 5. 3. Grand total does not include the Innu of Labrador, who were not registered under the Indian Act. The 1991 census reported 1,165 persons as Montagnais/Naskapi (or Innu) in Newfoundland and Labrador. Source: See note 24 at the end of this chapter.

TABLE 2.4 Adjusted Aboriginal Identity Population by Region and Aboriginal Group, 1991

27

Registered Region

No.1

Non-Registered Métis

%

No.

%

Atlantic

15,800

3.6

Quebec

43,700

10.0

9,800

Ontario

91,500

20.9

39,600

Manitoba

65,100

14.9

8,500

Saskat-chewan

59,900

13.7

6,500

Alberta

60,400

13.8

British Colombia

87,900

Yukon4 Northwest Territoiries4

2

Total

4,800

No. 4.3

Inuit3 %

Total

No.

%

No.

%

2,500

1.8

4,800

12.7

27,700

8.7

9,100

6.5

7,200

19.0

69,300

9.6

35.2

12,800

9.2

900

2.2 143,100

19.9

7.5

34,100

24.5

500

1.3 107,100

14.9

5.8

27,500

19.7

200

0.4

93,200

12.9

18,400

16.3

39,600

28.4

1,400

3.7 118,200

16.4

20.1

23,800

21.1

9,400

6.7

500

1.4 120,700

16.7

4,400

1.0

500

0.4

200

0.1

9,300

2.1

800

0.74

200

3.0 22,200

_ 0.2 5 58.7

3.8

100

0.7

36,200

5.0

438,000 100.0 112,600 100.0 139,400 100.0 37,800 100.0 720,600 100.0

Notes: — population count is less than 100.

1. 2.

All counts are rounded to the nearest hundred.

3.

To obtain estimated counts for the Inuit population (3,560) in regions other than Labrador, Quebec and the Northwest Territories, the 1991 APS unadjusted counts were used to derive the shares of the adjusted Inuit population in each remaining region.

4.

The Inuit count for the Atlantic region is actually for Labrador. The APS reported an unadjusted Inuit count of 55 in Nova Scotia and in New Brunswick. These counts were flagged to be used with caution because of sampling variability.

The adjusted count of non-registered North American Indian and Métis populations in the Yukon and Northwest Territories were derived using their respective percentage shares in each territory based on unadjusted 1991 APS data.

Source: M.J. Norris, D. Kerr and F. Nault, "Projections of the Aboriginal Identity Population in Canada, 1991-2016", research study prepared for RCAP (1995).

2.4 The Inuit Population Unlike the Métis people, Inuit have been counted in censuses since early in this century. In 1921 the count was approximately 3,000,19 and by 1971 the population had reached just over 25,000.20 By 1991 the Inuit population was estimated at nearly 38,000. The vast majority (89 per cent) live in the far north — Labrador, northern Quebec, the Northwest Territories and the Yukon, and only 10 per cent live in southern Canada (Table 2.2). Most Inuit live in rural locations or small urban areas. In 1991 an estimated 18,000 Inuit were living in what will be the new territory of Nunavut, in what is currently the eastern portion of the Northwest Territories (see Volume 4, Chapter 6).

3. Projected Population Growth A population grows as a result of three factors: births, deaths and migration. It is well known that the Aboriginal population has been growing more rapidly than the Canadian population as a whole, mainly because of much higher fertility rates. Mortality is also higher than in the general population. However, a significant decline in the infant mortality rate in the 1960s, coupled with a fertility rate, particularly among registered 28

Indians,21 that did not decline rapidly until the late 1960s, produced rapid growth in the Aboriginal population during the 1960s and early '70s. During the 1980s, both fertility and mortality rates continued their decline, and they are expected to maintain this decline throughout the 1991-2016 projection period. Net migration among Aboriginal people has been relatively minor and is not expected to affect the overall growth of the Aboriginal population. As a result of the rapid decline in infant mortality rates during the 1960s, a period when fertility rates remained high, a large generation of Aboriginal children was born and survived. This boom continued for several years after the general post-war baby boom and for different reasons. Nevertheless, the demographic and societal effects of this large generation of Aboriginal children are being felt and will continue to be felt for many years to come. Using the adjusted APS data, the Aboriginal identity population is expected to grow from an estimated 720,000 in 1991 and a projected 811,000 in 1996 to just over 1,000,000 in the year 2016 under a low- and medium-growth model, or possibly to 1,200,000 under a high-growth model.22 The Commission selected a medium-growth model as its preferred projection (Figure 2.4), since it is based on recent trends in fertility, mortality and net internal migration patterns.23 24 Accordingly, the North American Indian population registered under the Indian Act is expected to increase from the 1991 figure of 438,000 to 665,600 by 2016; the non-status North American Indian population from 112,600 to 178,400; the Métis population from 139,400 to 199,400; and the number of Inuit from 37,800 to 60,300. Regionally, the share of Aboriginal people is not expected to shift dramatically from the distribution in 1991 (Table 2.5). The minor shifts are attributable mostly to differences in regional fertility rates, which tend to be higher in Manitoba and Saskatchewan and lower in the east and remaining western provinces. A significant increase is predicted in the Aboriginal share of the population in some provinces. In Saskatchewan, for example, the proportion of the provincial population that is Aboriginal in origin is expected to increase from 9.5 per cent in 1991 to 13.9 per cent in the year 2016 according to our projections (Table 2.5). The share of the Saskatchewan population made up of Aboriginal persons under 25 years of age is projected to be 20.5 per cent by the year 2016. TABLE 2.5 Adjusted Aboriginal Identity Population as a Percentage of Total Population by Region 1991, 1996, 2006 and 2016

Region

1991

1996

2006

2016

Number %

Number %

Number %

Number

%

Atlantic

27,700

1.2

30,300

1.3

33,900

1.4

37,300

1.5

Quebec

69,300

1.0

76,400

1.0

87,300

1.1

97,300

1.1

Ontario

143,100

1.4 159,500

1.4 183,800

1.4

203,300

1.3

Manitoba

107,100

9.9 119,500 10.6 138,700 11.7

29

155,400 12.5

Saskatchewan

9.5 105,300 10.5 124,800 12.4

142,400 13.9

Alberta

118,200

4.7 137,500

4.9 171,300

5.4

203,300

5.8

British Columbia

120,700

3.7 135,500

3.6 161,900

3.6

186,900

3.6

Yukon Northwest Territories Total

93,200

5,100 18.4

6,300 18.2

7,800 20.0

8,900 21.7

36,200 63.0

41,200 62.0

49,700 62.4

58,700 62.4

720,600

2.7 811,400

2.7 959,000

2.8 1,093,400

2.9

Note: All population counts are rounded to the nearest hundred. Source: M.J. Norris, D. Kerr and F. Nault, "Projections of the Aboriginal Identity Population in Canada, 1991-2016", research study prepared for RCAP (1995).

Further detail about the Commission's projections of the Aboriginal population, including information about the changing age and sex composition and its implications for issues such as dependency rates, employment, housing, and income support, is found in Volumes 2 and 3 of the Commission's report. It is clear that, despite declining fertility rates, Aboriginal people will be a continuing presence in Canadian society; indeed, their population share is projected to increase. Demographic projections thus reinforce the assertion of Aboriginal people that they will continue as distinct peoples whose presence requires a renewed relationship with the rest of Canadian society.

30

Notes: 1 Olive P. Dickason, Canada’s First Nations: A History of Founding Peoples from Earliest Times (Toronto: McClelland & Stewart Inc., 1992), pp. 25, 34, 28. 2 J. Mooney, “The Aboriginal Population of America North of Mexico”, in Smithsonian Miscellaneous Collections 80/7 (1928), pp. 1-40. 3 R. Thornton, American Indian Holocaust and Survival: A Population History Since 1492 (Norman, Oklahoma: University of Oklahoma Press, 1987), p. 32. 4 Dickason, Canada’s First Nations (cited in note 1), pp. 26-27. 5 Dickason, Canada’s First Nations, p. 63. See also Margaret Conrad, Alvin Finkel and Cornelius Jaenen, History of the Canadian Peoples: Beginnings to 1867, volume 1 (Toronto: Copp Clark Pitman Ltd., 1993), p. 12. 6 Recent writings place particular emphasis on disease as the major factor decimating indigenous populations. See, for example, Georges E. Sioui, Pour une auto-histoire amérindienne (Quebec City: Presses de l’Université Laval, 1989), also published as For An Amerindian Autohistory (Montreal and Kingston: McGill-Queen’s University Press, 1992); and Ronald Wright, Stolen Continents: The New World Through Indian Eyes Since 1492 (New York: Viking Penguin, 1992). 7 There is some evidence that the population not identifying with their Aboriginal roots demonstrate socio-economic characteristics quite similar to those of Canadians as a whole, while those who do identify as Aboriginal have quite different socio-economic characteristics. Recent testing of questions for the 1996 census revealed that when an Aboriginal identity question was asked, the resulting count was within 2 per cent of the 1991 APS count, providing further evidence that the identity-based count may be a more appropriate count for examining Aboriginal conditions. 8 No data collection vehicle is perfect. With regard to the Aboriginal Peoples Survey, there was undercoverage. First, a number of reserves and settlements were enumerated incompletely for a variety of reasons, including some band councils’ refusal to admit survey takers to reserves. Second, the survey was not able to enumerate all the Aboriginal populations living on reserves that did participate in the survey or in non-reserve areas. Approximately 220 reserves and settlements were enumerated incompletely in the 1991 census and APS combined. This represented an estimated missed population of 53,000 or 23 per cent of the on-reserve population. Some of the undercoverage issues in the APS were inherited from the 1991 census. The APS drew its sample of Aboriginal respondents from the 1991 census forms. Any undercoverage problems in the census were passed along to the APS. Statistics Canada has estimated the extent of this undercoverage and taken it into account in establishing a 1991 base year population for the projection period (1991-2016). A full description of this adjustment for undercoverage appears in the report

31

prepared for RCAP: Mary Jane Norris, Don Kerr and François Nault, “Projections of the Aboriginal Identity Population in Canada, 1991-2016”, prepared by Statistics Canada (Population Projections Section, Demography Division) for RCAP (February 1995). (For information about research studies prepared for RCAP, see A Note About Sources at the beginning of this volume.) Taking into account the three types of population undercoverage in the APS shifts the published unadjusted count in 1991 from 626,000 to an adjusted 720,000. Other results of this adjustment include, for example, an increase in the percentage of the total Aboriginal population living on reserves and settlements, from 29 per cent (unadjusted) to 35 per cent (adjusted), and the share of total Aboriginal population living in non-reserve urban areas falls from 49 per cent (unadjusted) to 44 per cent (adjusted). To avoid confusion, tables and charts specify whether adjusted or unadjusted population data are being used. The general rule is that we use the adjusted 1991 base year population when presenting results of the population projections from 1991 to 2016. In most other cases unadjusted data are used, particularly in examining socio-economic conditions. Where other sources of data on Aboriginal people are used in this report, they are identified. There is much debate about the population of the various Aboriginal peoples. The debate is largely a function of the limited number of data sources and collection systems for basic demographic information. Even where sources or systems exist, the possibility of obtaining valid counts is limited by the way Aboriginal groups are defined for data collection purposes; this in turn tends to be determined by the legislation or government programs for which information is being gathered. 9 This projection is based on the extension of recent trends in birth, death and migration rates among Aboriginal groups before 1991. A full description is found in Norris et al. (cited in note 8). The population count for each Aboriginal group shown in Table 2.1 contains a small number of persons who reported multiple Aboriginal identities in the APS on which the projections are based (e.g., those who reported identifying as both North American Indian and Métis). Therefore, the counts shown in Table 2.1 do not add to the total Aboriginal count of 811,400, a figure that does not contain double counting. The source for the total population is Statistics Canada, “Projection No. 2: Projected Population by Age and Sex, Canada, Provinces and Territories, July 1, 1996”, unpublished tables. 10 The Indian register, a population register maintained by the federal department of Indian affairs and northern development (DIAND), has a count of 511,000 registered Indians in 1991. For the sake of consistency, however, the Commission relies primarily on the adjusted population counts derived from the 1991 APS. The population of 438,000 includes only those who reported North American Indian identity in the 1991 APS and excludes persons who are Métis and Inuit by identity, but who had Indian status under the Indian Act. Since the Commission’s major focus is the cultural identity of Aboriginal peoples, these two groups have been included in their respective identity groups, rather

32

than in the registered North American Indian count. This reduces the amount of double counting among the groups. Also excluded from the 1991 APS (and therefore from projections based on it) is the Aboriginal population residing in institutions, such as prisons or chronic care institutions, and Aboriginal persons with Indian status who were living outside Canada at the time of the survey. These factors (although not exhaustive) account for about 45 per cent of the difference between the Indian register count and the APS adjusted count. 11 The Commission divided Canada into three zones for analytical purposes. The Far North consists of the Yukon, Northwest Territories, northern Quebec (using the Census Division #99) and Labrador (Census Division #10). The Mid-North consists of the northern portions of British Columbia, Alberta, Saskatchewan, Manitoba and Ontario, and a zone in Quebec consisting of Abitibi-Témiscamingue in the west to the North Shore in the east. The South consists of the remainder of the provinces not included in the two northern zones and all of Prince Edward Island, Nova Scotia, New Brunswick, and the island of Newfoundland. See Volume 4, Chapter 6, for further discussion of these divisions. 12 It is not known with any accuracy how many North American Indians who are not registered under the Indian Act (i.e., non-status Indians) affiliate with one of the linguistic groups listed in Table 2.3. 13 Children are not entitled to status if one parent is classified as a ‘section 6(2) Indian’ (under the amended Indian Act) and the other parent does not have Indian status. For a more detailed discussion of the impact of Bill C-31, see Chapter 9 in this volume. 14 S. Clatworthy and A.H. Smith, Population Implications of the 1985 Amendments to the Indian Act (Ottawa: Assembly of First Nations, 1992). 15 An extensive discussion of historical counts of Aboriginal populations in what is now Canada appears in the introduction to a government publication entitled Censuses of Canada, 1665 to 1871, Statistics of Canada, volume IV (Ottawa: Queen’s Printer, 1876), pp. xiv-lxxv. Various references are made to ‘halfbreeds’, but without definition. The term Métis is used in the French version of the publication, however. Counts of ‘halfbreeds’ appear to be included with counts of non-Aboriginal people and not shown separately. Nevertheless, it is an explicit acknowledgement of a population with mixed Aboriginal and non-Aboriginal origins. The province of Manitoba undertook a census of its “half-breed inhabitants” in November 1870 and reported a figure of 9,800 persons (34 Victoria Sessional Papers (20), pp. 74-96). 16 Not everyone who identified as ‘halfbreed’ would necessarily consider themselves Métis. 17 G. Goldmann, “The Aboriginal Population and the Census, 120 Years of Information “1871 to 1991”, paper presented at the International Union of Scientific Studies in Population Conference, Montreal, September 1993, pp. 6, 7.

33

18 It should be noted that about 17,000 Métis persons are also registered under the Indian Act, although they still identified as Métis on the APS questionnaire. Nevertheless, for statistical purposes, the Commission has given precedence to reported Métis identity, as opposed to legal Indian status, and therefore the Métis count includes this registered population. Indian registration before 1985 was likely acquired through marriage to a status Indian male; the female spouse gained status, as did her offspring. Others and their children would have regained Indian status more recently as a result of reinstatement under Bill C-31. For whatever reasons, this group of 17,000 still chose to self-identify as Métis in the 1991 APS. 19 Inuit in Labrador were not counted in the 1921 census, because Newfoundland was not part of Canada until 1949. 20 Norris et al. (cited in note 8). 21 Fertility and mortality data on Aboriginal groups other than registered Indians are rather sparse. 22 Four projection scenarios were developed based on various assumptions about future trends in fertility, mortality and migration rates. These scenarios were applied to Aboriginal groups in various regions of Canada. For a detailed description see Norris et al. (cited in note 8). 23 Norris et al. (cited in note 8). 24 The starting point for Table 2.3 was information provided by Statistics Canada, which has assigned bands or First Nations to broader linguistic/cultural groups, mainly on the basis of their linguistic and cultural affiliation. For details on this methodology, see Statistics Canada, “1991 Census List of Indian Bands/First Nations by Indian Nations”, Social Statistics Division, unpublished table and related methodological notes. The number of registered Indians belonging to each band or First Nation and each linguistic/cultural group was calculated, based on data in Indian Register Population by Sex and Residence, 1991 (Ottawa: Indian and Northern Affairs Canada, March 1992). Since the Commission prefers to use the Aboriginal identity population derived from the 1991 APS rather than the population derived from the Indian Register, we estimated the size of the status identity population belonging to each linguistic/cultural group by calculating the percentage of the total registered Indian population accounted for by each linguistic/cultural group, then applying that percentage to the APS adjusted status Indian identity population. For example, if a particular linguistic/cultural group made up 5 per cent of the registered Indian population, then 5 per cent of the total status identity population was taken as the size of that linguistic/cultural group as reported in Table 2.3. The size of the identity population is derived from Norris et al. (cited in note 8).

34

The Commission made some changes in the grouping of bands or First Nations into linguistic/cultural groups, based on information supplied by the Canadian Museum of Civilization, in order to show the groups that make up the Dene Nation and the Iroquois Confederacy. The Commission recognizes that individual First Nations may not necessarily group themselves into these linguistic/cultural categories and that such affiliations continue to evolve. Other forms of affiliation beyond the band or community level are based on criteria such as common treaty affiliation or political groupings in the form of tribal councils or province-wide political organizations.

35

Volume 1 - Looking Forward Looking Back PART ONE The Relationship in Historical Perspective

PART ONE The Relationship in Historical Perspective 3

Conceptions of History in the Commission's terms of reference (see Appendix A), the first was the instruction to investigate and make concrete recommendations on "the history of relations between Aboriginal peoples, the Canadian government and Canadian society as a whole." OF THE 16 SPECIFIC POINTS

Indeed, it is impossible to make sense of the issues that trouble the relationship today without a clear understanding of the past. This is true whether we speak of the nature of Aboriginal self-government in the Canadian federation, the renewal of treaty relationships, the challenge of revitalizing Aboriginal cultural identities, or the sharing of lands and resources. We simply cannot understand the depth of these issues or make sense of the current debate without a solid grasp of the shared history of Aboriginal and non-Aboriginal people on this continent. In this respect, the past is more than something to be recalled and debated intellectually. It has important contemporary and practical implications, because many of the attitudes, institutions and practices that took shape in the past significantly influence and constrain the present. This is most obvious when it comes to laws such as the Indian Act, but it is also evident in many of the assumptions that influence how contemporary institutions such as the educational, social services and justice systems function. An examination of history also shows how the relationship between Aboriginal and nonAboriginal Canadians has assumed different shapes at different times in response to changing circumstances. In fact, it is possible to identify different stages in the relationship and to see the different characteristics of each. This allows us to reflect more deeply on the factors that have contributed to a relationship that has been more mutually beneficial and harmonious in some periods than in others. It also permits us to understand how the relationship has come to serve the interests of one party at the expense of the other with the passage of time. Commissioners have had an unparalleled opportunity to hear from Aboriginal and nonAboriginal people all across Canada. All Commissioners — those new to the study of 36

these issues and those whose professional lives have been devoted to grappling with them — learned a great deal from the experience and were moved by what they learned. One of the clearest messages that emerged is the importance of understanding the historical background to contemporary issues. Commissioners believe it is vital that Canadians appreciate the depth and richness of this history as well as its sometimes tragic elements. But Commissioners also concluded that most Canadians are simply unaware of the history of the Aboriginal presence in what is now Canada and that there is little understanding of the origins and evolution of the relationship between Aboriginal and non-Aboriginal people that have led us to the present moment. Lack of historical awareness has been combined with a lack of understanding on the part of most Canadians of the substantial cultural differences that still exist between Aboriginal and nonAboriginal people. Together these factors have created fissures in relations between the original inhabitants of North America and generations of newcomers. They impede restoration of the balanced and respectful relationship that is the key to correcting our understanding of our shared past and moving forward together into the future.

1. Aboriginal and Non-Aboriginal Approaches to History Rendering accurately the history of a cross-cultural relationship is not simple or straightforward. History is an not an exact science. Past events have been recorded and interpreted by human beings who, much like ourselves, have understood them through the filter of their own values, perceptions and general philosophies of life and society. As with all histories, therefore, it is clear that how an event or a series of events is chronicled over time is shaped by the perceptions of the historian. Even among historians of the same period and cultural outlook, substantial differences of interpretation may exist. Consider how much greater such differences in interpretation must be when it comes to perspectives rooted in radically different cultural traditions. Important differences derive from the methodology of history — how the past is examined, recorded and communicated. The non-Aboriginal historical tradition in Canada is rooted in western scientific methodology and emphasizes scholarly documentation and written records.1 It seeks objectivity and assumes that persons recording or interpreting events attempt to escape the limitations of their own philosophies, cultures and outlooks. In the non-Aboriginal tradition, at least until recently, the purpose of historical study has often been the analysis of particular events in an effort to establish what 'really' happened as a matter of objective historical truth or, more modestly, to marshal facts in support of a particular interpretation of past events. While interpretations may vary with the historian, the goal has been to come up with an account that best describes all the events under study. Moreover, underlying the western humanist intellectual tradition in the writing of history is a focus on human beings as the centrepiece of history, including the notion of the march of progress and the inevitability of societal evolution. This historical tradition is also secular and distinguishes what is

37

scientific from what is religious or spiritual, on the assumption that these are two different and separable aspects of the human experience. The Aboriginal tradition in the recording of history is neither linear nor steeped in the same notions of social progress and evolution. Nor is it usually human-centred in the same way as the western scientific tradition, for it does not assume that human beings are anything more than one — and not necessarily the most important — element of the natural order of the universe. Moreover, the Aboriginal historical tradition is an oral one, involving legends, stories and accounts handed down through the generations in oral form. It is less focused on establishing objective truth and assumes that the teller of the story is so much a part of the event being described that it would be arrogant to presume to classify or categorize the event exactly or for all time. In the Aboriginal tradition the purpose of repeating oral accounts from the past is broader than the role of written history in western societies. It may be to educate the listener, to communicate aspects of culture, to socialize people into a cultural tradition, or to validate the claims of a particular family to authority and prestige.2 Those who hear the oral accounts draw their own conclusions from what they have heard, and they do so in the particular context (time, place and situation) of the telling. Thus the meaning to be drawn from an oral account depends on who is telling it, the circumstances in which the account is told, and the interpretation the listener gives to what has been heard. Oral accounts of the past include a good deal of subjective experience. They are not simply a detached recounting of factual events but, rather, are "facts enmeshed in the stories of a lifetime".3 They are also likely to be rooted in particular locations, making reference to particular families and communities. This contributes to a sense that there are many histories, each characterized in part by how a people see themselves, how they define their identity in relation to their environment, and how they express their uniqueness as a people. Unlike the western scientific tradition, which creates a sense of distance in time between the listener or reader and the events being described, the tendency of Aboriginal perspectives is to create a sense of immediacy by encouraging listeners to imagine that they are participating in the past event being recounted. Ideas about how the universe was created offer a particularly compelling example of differences in approach to interpreting the past. In the western intellectual tradition, the origin of the world, whether in an act of creation or a cosmic big bang, is something that occurred once and for all in a far distant past remote from the present except in a religious or scientific sense. In Aboriginal historical traditions, the particular creation story of each people, although it finds its origins in the past, also, and more importantly, speaks to the present. It invites listeners to participate in the cycle of creation through their understanding that, as parts of a world that is born, dies and is reborn in the observable cycle of days and seasons, they too are part of a natural order, members of a distinct people who share in that order.

38

As the example of creation stories has begun to suggest, conceptions of history or visions of the future can be expressed in different ways, which in turn involve different ways of representing time. The first portrays time as an arrow moving from the past into the unknown future; this is a linear perspective. The second portrays time as a circle that returns on itself and repeats fundamental aspects of experience. This is a cyclic point of view. As shown in Figure 3.1, from a linear perspective the historical relationship established between Aboriginal and non-Aboriginal people is a matter of the past. However regrettable some aspects of this relationship may have been, it is over and done with. The present relationship grows out of the past, however, and can be improved upon. So we look to the future to establish a new relationship, which will be more balanced and equitable. From the second perspective, the relationship between Aboriginal and non-Aboriginal groups has moved through a cycle (Figure 3.2). At the high point of the cycle, we find the original relationship established in the early days of contact between Aboriginal peoples and newcomers, especially in the course of the fur trade. Despite some variations, this relationship often featured a rough-and-ready equality and involved a strong element of mutual respect. True, this respect sprang in part from a healthy regard for the military capacities of the other parties and from a pragmatic grasp of the advantages afforded by trade and co-operation. However, it also involved a guarded appreciation of the other's distinctive cultures and a recognition of certain underlying commonalities. From this beginning, there was a slow downturn, as the military strength of the Aboriginal parties gradually waned, as the fur trade dwindled in importance and as non-Aboriginal people increased dramatically in number. Having passed through the low point in the cycle, where adherence to the principles of equality and respect was almost negligible, there is now a slow upswing as efforts are made to renew the original relationship and to restore the balance that it represented. Although it would be wrong to draw hard and fast distinctions in this area, we have found that many Aboriginal people tend to take a cyclic perspective, while the linear approach is more common in the larger Canadian society. Differences of this kind are important, not because they represent absolute distinctions between peoples — cultural worlds are too rich

39

and complex for that — but because they serve to illustrate, however inadequately, that there are different ways of expressing ideas that, at a deeper level, may have much in common. To summarize, the history of the relationship between Aboriginal and non-Aboriginal people is represented quite differently in the two cultures. The contrast between Aboriginal and non-Aboriginal historical traditions suggests different purposes for revisiting the past, different methodologies and different contents and forms. We have chosen to present an account of past events that recognizes and accepts the legitimacy of the historical perspectives and traditions of both Aboriginal and non-Aboriginal peoples.4 What follows is our best effort to be true to both historical traditions as well as to lay the groundwork for the rest of our report.

2. An Historical Framework Some of the old people...talk about the water...and it is really nice to hear them talk about the whole cycle of water, where it all starts and where it all ends up. Chief Albert Saddleman Okanagan Band Kelowna, British Columbia, 16 June 19935

Aboriginal and non-Aboriginal people have had sustained contact in the part of North America that has become known as Canada for some 500 years, at least in some areas. To summarize and interpret the nature of so complex, fluid and interdependent a relationship ("where it all starts and where it all ends up") is a formidable assignment. This is especially the case when one considers the sheer diversity in the nature of the relationship in different areas of the country, populated by different Aboriginal peoples and settled at different periods by people of diverse non-Aboriginal origins.

40

In the Atlantic region, for instance, a sustained non-Aboriginal presence among the Mi'kmaq and Maliseet peoples has been a fact for nearly 500 years, but in most parts of the far north, Inuit have been in sustained contact with non-Aboriginal people only in recent times. In Quebec and southern and central Ontario, the relationship is of almost the same duration as that in the Atlantic region, while in northern Ontario and the prairies, sustained contact and the development of formal treaty relationships has occurred only within the last 150 years. In parts of the Pacific coast, the nature of the relationship has yet to be formalized in treaties, even though interaction between Aboriginal and nonAboriginal people has taken place for some 200 years. In approaching the task of summarizing and interpreting the relationship between Aboriginal and non-Aboriginal people, the Commission has found it useful to divide its own account of the historical relationship into four stages, as illustrated in Figure 3.3 and as described in the next four chapters. The stages follow each other with some regularity, but they overlap and occur at different times in different regions.

2.1 Stage 1: Separate Worlds In the period before 1500, Aboriginal and non-Aboriginal societies developed in isolation from each other. Differences in physical and social environments inevitably meant differences in culture and forms of social organization. On both sides of the Atlantic, however, national groups with long traditions of governing themselves emerged, organizing themselves into different social and political forms according to their traditions and the needs imposed by their environments. In this first stage, the two societies — Aboriginal and non-Aboriginal — were physically separated by a wide ocean. From an Aboriginal philosophical perspective, the separation between the two distinct worlds could also be expressed as having been established by the acts of creation. Accordingly, the Creator gave each people its distinct place and role 41

to perform in the harmonious operation of nature and in a manner and under circumstances appropriate to each people. Aboriginal creation stories are thus not only the repository of a people's distinct national history, but also an expression of the divine gift and caretaking responsibility given to each people by the Creator. By the end of Stage 1 (see Chapter 4), the physical and cultural distance between Aboriginal and non-Aboriginal societies narrowed drastically as Europeans moved across the ocean and began to settle in North America.

2.2 Stage 2: Contact and Co-operation The beginning of Stage 2 (see Chapter 5) was marked by increasingly regular contact between European and Aboriginal societies and by the need to establish the terms by which they would live together. It was a period when Aboriginal people provided assistance to the newcomers to help them survive in the unfamiliar environment; this stage also saw the establishment of trading and military alliances, as well as intermarriage and mutual cultural adaptation. This stage was also marked by incidents of conflict, by growth in the number of non-Aboriginal immigrants, and by the steep decline in Aboriginal populations following the ravages of diseases to which they had no natural immunity. Although there were exceptions, there were many instances of mutual tolerance and respect during this long period. In these cases, social distance was maintained — that is, the social, cultural and political differences between the two societies were respected by and large. Each was regarded as distinct and autonomous, left to govern its own internal affairs but co-operating in areas of mutual interest and, occasionally and increasingly, linked in various trading relationships and other forms of nation-to-nation alliances.

2.3 Stage 3: Displacement and Assimilation In Stage 3 (see Chapter 6), non-Aboriginal society was for the most part no longer willing to respect the distinctiveness of Aboriginal societies. Non-Aboriginal society made repeated attempts to recast Aboriginal people and their distinct forms of social organization so they would conform to the expectations of what had become the mainstream. In this period, interventions in Aboriginal societies reached their peak, taking the form of relocations, residential schools, the outlawing of Aboriginal cultural practices, and various other interventionist measures of the type found in the Indian Acts of the late 1800s and early 1900s. These interventions did not succeed in undermining Aboriginal social values or their sense of distinctiveness, however. Neither did they change the determination of Aboriginal societies to conduct their relations with the dominant society in the manner Aboriginal people considered desirable and appropriate, in line with the parameters established in the initial contact period. (Hence the continuation of the horizontal line in dotted form in Figure 3.3.)

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Non-Aboriginal society began to recognize the failure of these policies toward the end of this period, particularly after the federal government's ill-fated 1969 white paper, which would have ended the special constitutional, legal and political status of Aboriginal peoples within Confederation.

2.4 Stage 4: Negotiation and Renewal This stage in the relationship between Aboriginal and non-Aboriginal societies, which takes us to the present day, is characterized by non-Aboriginal society's admission of the manifest failure of its interventionist and assimilationist approach. This acknowledgement is pushed by domestic and also by international forces. Campaigns by national Aboriginal social and political organizations, court decisions on Aboriginal rights, sympathetic public opinion, developments in international law, and the worldwide political mobilization of Indigenous peoples under the auspices of the United Nations have all played a role during this stage in the relationship. As a result, non-Aboriginal society is haltingly beginning the search for change in the relationship. A period of dialogue, consultation and negotiation ensues, in which a range of options, centring on the concept of full Aboriginal self-government and restoration of the original partnership of the contact and co-operation period, is considered. From the perspective of Aboriginal groups, the primary objective is to gain more control over their own affairs by reducing unilateral interventions by non-Aboriginal society and regaining a relationship of mutual recognition and respect for differences. However, Aboriginal people also appear to realize that, at the same time, they must take steps to re-establish their own societies and to heal wounds caused by the many years of dominance by nonAboriginal people. It is clear that any attempt to reduce so long and complex a history of interrelationship into four stages is necessarily a simplification of reality. It is as though we have taken many different river systems, each in a different part of the country, each viewed from many different vantages, and tried to channel them into one stream of characteristics that would be most typical of the river as it has flowed through Canada. We have attempted to retain a sense of the diversity of the historical experience by presenting numerous snapshots or slices of history. Instead of providing a linear, chronological overview, we have chosen particular societies, particular events or particular turning points in history to illustrate each of the stages and to give the flavour of the historical experience in at least some of its complexity. It is difficult to place each stage within a precise timeframe. In part this is because of the considerable overlap between the stages. They flow easily and almost indiscernibly into each other, with the transition from one to the other becoming apparent only after the next stage is fully under way. Nor is the time frame for each period the same in all parts of the country; Aboriginal groups in eastern and central Canada generally experienced contact with non-Aboriginal societies earlier than groups in more northern or western locations.

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Although reasonable people may legitimately differ on the exact point at which one stage ends and another begins, for descriptive purposes we have chosen the following dates on the basis of important demographic, policy, legislative and other markers that help divide the stages from each other. We would therefore end Stage 1 at around the year 1500, because sustained contact between Aboriginal and non-Aboriginal peoples took place shortly after that date, at least in the east. The period of contact and co-operation comes to a conclusion in the Maritimes by the 1780s, in Ontario by 1830 and British Columbia by 1870. We suggest that the period of displacement and assimilation, the third stage, was concluded by the federal government's 1969 white paper. The reaction it provoked and the influence of certain court decisions shortly thereafter clearly marked the beginning of the negotiation and renewal phase. What follows is an elaboration of events, experiences and perceptions that characterize each of the four stages of the relationship and that form the backdrop to our present situation.

Notes: 1 We use the term western to refer to the traditions of Europe and societies of European origin. 2 Julie Cruikshank, “Oral Tradition and Oral History: Reviewing Some Issues”, The Canadian Historical Review LXXV/3 (1994), pp. 403-418. 3 Cruikshank, p. 408. 4 Oral history, linguistic analysis, documentary records and archaeological sources for the study of Aboriginal history are now regarded as complementary, with one source filling gaps in another source and thereby providing a more complete picture.** Ethnography, which gathers information about culture from living informants, and history, which has usually relied on written sources, have come together to generate the subdiscipline of ethnohistory. The technique of ‘upstreaming’, used in ethnohistory, takes accounts from living informants and applies them in interpreting historical records. For example, a secretary at a treaty council might have recorded that "the three bare words of requickening" were performed at the beginning of the meeting. From ethnographic accounts we know that this is part of an Iroquois ceremonial sequence that affirms certain roles and responsibilities between the two sides participating in the ritual. We therefore have a

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perception of this historical event and of the relationship between the parties that we might not have been able to derive from the written record alone. Similarly, historical records of a fragmentary nature may fit with and confirm oral accounts of events and relations between Aboriginal nations and colonists. Oral and documentary sources are ofren found to complement and confirm each other, giving weight in recent historical work to oral histories. However, when oral accounts are not substantiated by documentary records, they are much more likely to be challenged or dismissed in a culture that relies heavily on the written word. If oral accounts contradict the written record, the latter document is likely to be considered authoritative. Commissioners are aware that colonists making documentary records and Aboriginal historians transmitting oral accounts often perceived events from very different perspectives and conceived of very different purposes for the records they preserved and passed on. We reject the position that written documents of colonial society are, by definition, more reliable than oral accounts by Aboriginal historians. As we noted in our report on the High Arctic relocation, in treating the oral tradition with respect, The object is not to seek validation of the oral history in the written record. Rather, the first step is to ask whether the information...tells a substantially consistent story — taking account of the different perspectives — or whether there is substantial conflict. This involves asking, for example, whether the oral history.. .reflects what is found in the documentary record. It involves asking how the oral history might help us understand and interpret the documentary record. It involves understanding the broader cultural and institutional contexts from which the oral history and the documentary record come. (Royal Commission on Aboriginal Peoples, The High Arctic Relocation: A Report on the 1953-55 Relocation [Ottawa: Supply and Services, 1994], p. 2.) Where different accounts and interpretations are held our by proponents of different cultures, on the basis of oral as opposed to documentary sources, we propose that peaceful coexistence of divergent histories is preferable to a contest over which history will prevail. Where differences in historical interpretation result in contemporary conflict of interest, we propose that the differences be resolved by mutually respectful negotiation. For a fuller discussion of the emergence of ethnohïstoty and the legitimacy of upstreaming, see Anthony EC. Wallace, "Overview: The Career of William N. Fenton and the Development of Iroquoian Studies", p. 11 and following; and Bruce G. Trigger, "Indian and White History: Two Worlds or One?", pp. 17-33, in Extending the Rafters: Interdisciplinary Approaches to Iroquoian Studies, cd. Michael K. Foster, Jack Campisi and Marianne Mithun (Albany: State University of New York Press, 1984).

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5 Transcripts of the Commission’s hearings are cited with the speaker’s name and affiliation, if any, and the location and date of the hearing. See A Note About Sources at the beginning of this volume for information about transcripts and other Commission publications.

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Volume 1 - Looking Forward Looking Back PART ONE The Relationship in Historical Perspective

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Stage One: Separate Worlds between Aboriginal and non-Aboriginal peoples in North America begins, of necessity, with a description of the period before contact. Aboriginal nations were then fully independent; as described by the Supreme Court of Canada, they were "organized in societies and occupying the land as their forefathers had done for centuries."1 THE HISTORY OF THE RELATIONSHIP

Europeans arriving in North America attempted to justify their assumption of political sovereignty over Aboriginal nations and title to their lands on the basis of a reinterpretation of prevailing norms in international law at the time, in particular the doctrine of discovery. This doctrine is based on the notion of terra nullius — a Latin term that refers to empty, essentially barren and uninhabited land. Under norms of international law at the time of contact, the discovery of such land gave the discovering nation immediate sovereignty and all rights and title to it. Over the course of time, however, the concept of terra nullius was extended by European lawyers and philosophers to include lands that were not in the possession of 'civilized' peoples or were not being put to a proper 'civilized' use according to European definitions of the term. The following passage from the sermon of a Puritan preacher in New England in 1609 captures the essence of this re-interpretation of the idea of land empty of civilized human habitation: Some affirm, and it is likely to be true, that these savages have no particular property in any part or parcel of that country, but only a general residency there, as wild beasts in the forest; for they range and wander up and down the country without any law or government, being led only by their own lusts and sensuality. There is not meum and teum [mine and thine] amongst them. So that if the whole land should be taken from them, there is not a man that can complain of any particular wrong done unto him.2 Upon the 'discovery' of the North American continent by Europeans, according to this doctrine, the newcomers were immediately vested with full sovereign ownership of the discovered lands and everything on them. When faced with the fact that the lands were inhabited by Aboriginal peoples, European commentators, such as the preacher Gray, popularized the notion that Aboriginal peoples were merely in possession of such lands, since they could not possibly have the civilized and Christian attributes that would enable

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them to assert sovereign ownership to them. Over time these ethnocentric notions gained currency and were given legitimacy by certain court decisions. The argument made by the attorney general of Ontario in St. Catharines Milling and Lumber Co. v. the Queen, for example, is part of this tradition: To maintain their position the appellants must assume that the Indians have a regular form of government, whereas nothing is more clear than that they have no government and no organization, and cannot be regarded as a nation capable of holding lands. ... It is a rule of the common law that property is the creature of the law and only continues to exist while the law that creates and regulates it subsists. The Indians had no rules or regulations which could be considered laws.3 Despite evidence to the contrary, the argument that Aboriginal people merely roamed over the land and were not in the habit of cultivating the soil, as was the practice in Europe, was picked up and developed in the latter part of the seventeenth century by the English philosopher John Locke. His writings were highly influential in legitimizing in the minds of non-Aboriginal politicians and lawyers the almost complete takeover of Aboriginal lands by Europeans. As summarized by James Tully, professor of philosophy at McGill University, Locke began with the idea that Aboriginal peoples were in a prepolitical state of nature — the first stage in a process of historical development through which all societies go: In the first age there is no established system of property or government and their economic activity is subsistence hunting and gathering. In contrast, the European civilized age is characterized by established legal systems of property, political societies and commercial or market-oriented agriculture and industry. This first set of contrasts makes up the background assumption of the 'stages view' of historical development which tends to be taken for granted in political (and economic) theory down to this day. Second, the Aboriginal people of America, possessing neither government nor property in their hunting and gathering territories, have property rights only in the products of their labour: the fruit and nuts they gather, the fish they catch, the deer they hunt and the corn they pick. Unlike citizens in political societies, anyone in a state of nature is free to appropriate land without the consent of others, as long as the land is uncultivated...4 Illustrating his theory throughout with examples drawn from America, Locke draws the immensely influential conclusion that Europeans are free to settle and acquire property rights to vacant land in America by agricultural cultivation without the consent of the Aboriginal people... Whereas the second set of arguments justifies appropriation by alleging that the Aboriginal people have no rights in the land, the third set of arguments justifies the appropriation by claiming that the Aboriginal people are better off as a result of the establishment of the commercial system of private property in the land. Locke claims that a system of European commerce based on the motive to acquire more than one needs, satisfied by surplus production for profit on the market, is economically superior to the

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American Indian system of hunting and gathering, based on fixed needs and subsistence production, in three crucial respects: it uses the land more productively, it produces a greater quantity of conveniences, and it produces far greater opportunities to work and labour by expanding the division of labour.5 These kinds of arguments, which distorted the reality of the situation and converted differences into inferiorities, have had surprising longevity in policy documents and in court proceedings up to the present day. As modified by the courts, they are at the heart of the modern doctrine of Aboriginal title, which holds that Aboriginal peoples in North America do not 'own' their lands, although they now have the legal right in Canada to demand compensation if they are dispossessed of them by the authorities. Not all courts have endorsed without reservation the self-serving notions created to justify the dispossession of Aboriginal peoples from their lands and the denial of their inherent sovereignty. This was particularly so, for example, in the later judgements of Chief Justice Marshall of the Supreme Court of the United States, such as that in Worcester v. Georgia in 1832:6 America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered which annulled the pre-existing rights of its ancient possessors.7 Centuries of separate development in the Americas and Europe led to Aboriginal belief systems, cultures and forms of social organization that differed substantially from European patterns. Although this is generally accepted now, there is often less recognition of the fact that there was considerable diversity among Aboriginal nations as well. They were as different from each other as the European countries were from each other. Moreover, they often still are. Thus, the use of a term such as Aboriginal obscures real differences among the various indigenous nations. It was not only differences between Aboriginal and non-Aboriginal peoples that shaped relations between them in the post-contact period; it was also differences among Aboriginal nations, and among European societies. These differences remain important to the present day. They are not the dead artifacts of history, of value only to those who choose to study the past. Rather, they speak to the origins of cultural patterns that find (or seek to find) expression in contemporary times, in contemporary forms. These differences are at the heart of the present struggle of Aboriginal peoples to reclaim possession not only of their traditional lands, but also of their traditional cultures and forms of political organization.

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To respect the diversity among Aboriginal nations, we have chosen to illustrate certain distinctive patterns of culture and social organization by selecting five particular instances from different geographic regions. The first account deals with the Mi'kmaq of the east, the people of the dawn. This is followed by descriptions of the distinctive forms of social and political organization among the Iroquois and the Blackfoot. For the discussion of Pacific peoples, our emphasis is on social customs and economic relationships among the nations of the northwest coast. For the North, we have chosen to highlight innovation among Inuit.

1. People of the Dawn: The Mi'kmaq Like other Aboriginal nations, the Mi'kmaq of the present day look back to their roots, seeking to understand from their oral traditions where they came from and how their culture and forms of social organization developed. The word Mi'kmaq means the people who lived farthest east; hence they are often referred to as the people of the dawn. It is appropriate, therefore, to begin this account with a Mi'kmaq creation story in which the power of the sun plays a prominent role. It is one of several versions told in the region, and it outlines the relationship between the Creator, the people and the environment. The account continues with a description of forms of social organization and of other seminal events recorded in the Mi'kmaq oral tradition. In the creation story (see box, next page), the traditional belief system of the Mi'kmaq accounts for the origins of the people and of the earth with all its life forms, providing a vivid image of the Great Council Fire giving out sparks that give life to human form. The Mi'kmaq were taught that the spark of life in living things has three parts: a form that decays and disappears after death; a mntu or spark that travels after death to the lands of the souls; and the guardian spark or spirits that aid people during their earth walk. While the form is different, all mntu and guardian spirits are alike but of different forces. No human being possessed all the forces, nor could human beings control the forces of the stars, sun or moon, wind, water, rocks, plants and animals. Yet they belong to these forces, which are a source of awe and to which entreaties for assistance are often addressed. Since all objects possess the sparks of life, every life form has to be given respect. Just as a human being has intelligence, so too does a plant, a river or an animal. Therefore, the people were taught that everything they see, touch or are aware of must be respected, and this respect requires a special consciousness that discourages carelessness about things. Thus, when people gather roots or leaves for medicines, they propitiate the soul of each plant by placing a small offering of tobacco at its base, believing that without the cooperation of the mntu, the mere form of the plant cannot work cures. Mi'kmaq were taught that all form decays, but the mntu continues. Just as autumn folds into winter and winter transforms into spring, what was dead returns to life. The tree does

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not die; it grows up again where it falls. When a plant or animal is killed, its mntu goes into the ground with its blood; later it comes back and reincarnates from the ground. Each person, too, whether male or female, elder or youth, has a unique gift or spark and a place in Mi'kmaq society. Each has a complementary role that enables communities to flourish in solidarity. Like every generation, each person must find his or her gifts, and each person also needs to have the cumulative knowledge and wisdom of previous generations to survive successfully in a changing environment. In this respect, oral accounts such as the creation story served not only to communicate a particular story, but also to give guidance to succeeding generations on the appropriate way to live — how to communicate with other life forms, how to hunt and fish and respect what is taken, and how to take medicines from the earth. Stories that feature visions and dreams help to communicate lessons learned from the past. A Mi'kmaq Creation Story On the other side of the Path of the Spirits, in ancient times, Kisúlk, the Creator, made a decision. Kisúlk created the first born, Niskam, the Sun, to be brought across Sk•tékmujeouti (the Milky Way) to light the earth. Also sent across the sky was a bolt of lightning that created Sitqamúk, the earth, and from the same bolt Kluskap was also created out of the dry earth. Kluskap lay on Sitqamúk, pointing by head, feed and hands to the Four Directions. Kluskap became a powerful teacher, a kinap and a puoin, whose gifts and allies were great. In another bolt of lightning came the light of fire, and with it came the animals, the vegetation and the birds. These other life forms gradually gave Kluskap a human form. Kluskap rose from the earth and gave thanks to Kisúlk as he honoured the six directions: the sun, the earth, and then the east, south, west and north. The abilities within the human form made up the seventh direction. Kluskap asked Kisúlk how he should live, and Kisúlk in response sent Nukumi, Kluskap's grandmother, to guide him in life. Created from a rock that was transformed into the body of an old woman through the power of Niskam, the Sun, Nukumi was an elder whose knowledge and wisdom were enfolded in the Mi'kmaq language. Nukumi taught Kluskap to call upon apistanéwj, the marten, to speak to the guardian spirits for permission to consume other life forms to nourish human existence. Marten returned with their agreement, as well as with songs and rituals. Kluskap and his grandmother gave thanks to Kisúlk, to the Sun, to the Earth and to the Four Directions and then feasted. As they made their way to understand how they should live, Kluskap then met Netawansum, his nephew, whom Kisúlk had created in his human form from the rolling foam of the ocean that had swept upon the shores and clung to the sweetgrass. Netawansum had the understanding of the life and strength of the underwater realms and he brought gifts from this realm to Kluskap, including the ability to see far away. They again gave thanks and feasted on nuts from the 51

trees. Finally they met Níkanaptekewísqw, Kluskap's mother, a woman whose power lay in her ability to tell about the cycles of life or the future. She was born from a leaf on a tree, descended from the power and strength of Niskam, the Sun, and made into human form to bring love, wisdom and the colours of the world. As part of the earth, she brought the strength and wisdom of the earth and an understanding of the means of maintaining harmony with the forces of nature. They lived together for a long time, but one day Kluskap told his mother and nephew that he and his grandmother Nukumi were leaving them to go north. Leaving instructions with his mother, Kluskap told of the Great Council Fire that would send seven sparks, which would fly out of the fire and land on the ground, each as a man. Another seven sparks would fly out the other way and out of these seven sparks would arise seven women. Together they would form seven groups, or families, and these seven families should disperse in seven directions and then divide again into seven different groups. Like the lightning bolts that created the earth and Kluskap, the sparks contained many gifts. The sparks gave life to human form; and in each human form was placed the prospect of continuity. Like Kluskap before them, when the people awoke naked and lost, they asked Kluskap how they should live. Kluskap taught them their lessons, and thus he is named "one who is speaking to you" or the Teacher-Creator. Source: This segment is based on a story taken from the ancient teachings of Mi'kmaq elders. The ancient creation story was compiled by Kep'tin Stephen Augustine of Big Cove, New Brunswick. See Introductory Guide to Micmac Words and Phrases, compiled by Evan Thomas Pritchard, annotations by Stephen Augustine, observations by Albert Ward (Rexton, N.B.: Resonance Communications, 1991). Another version is recounted by Reverend D. MacPherson in Souvenir of the Micmac Tercentenary Celebration (St. Anne de Restigouche: Frères Mineurs Capucins, 1910).

Internal peace was maintained among the families by dividing up the national territory into seven districts, each with a chief, and by acknowledging family rights to certain hunting grounds and fishing waters. District and territory divisions depended on the size of the family and the abundance of game and fish. These families made up several small gatherings or councils. From each settlement of kinsmen and their dependents, or wigamow, the Holy Gathering, also known now as the Grand Council of the Mi'kmaq (Santé Mawíomi) was created. The Mawíomi, which continues into the present time, recognizes one or more kep'tinaq (captains; singular: kep'tin) to show the people the good path, to help them with gifts of knowledge and goods, and to sit with the whole Mawíomi as the government of all the Mi'kmaq. From among themselves, the kep'tinaq recognize a jisaqamow (grand chief) and jikeptin (grand captain), both to guide them and one to speak for them. From others of good spirit they choose advisers and speakers, including the putu's, and the leader of the warriors, or smaknis. When the birds begin their migration south, lnapskuk, the symbolic wampum laws8 of the Mi'kmaq alliances, are read and explained to the people.

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At the annual meeting, the kep'tinaq and Mawíomi saw that each family had sufficient planting grounds for the summer, fishing stations for spring and autumn and hunting range for winter. Once assigned and managed for seven generations, these properties were inviolable. If disputes arose, they were arbitrated by the kep'tinaq individually or in council. The Mi'kmaq were neither settled nor migratory. The environment of their birth has always been suited best to seasonal use so that, compatible with the rhythms of the earth, families were responsible for a hunting ground, a fishing river or waters and a planting home, and they travelled to other resources throughout the year. They lived within the beauty and cycles of their lands. Given this deep attachment to the land, it is not surprising that all natural features within the Mi'kmaq territory have ancient names in the Mi'kmaq language, names that bear witness to their continuous use and possession of them. The trees, the shore, the mist in the dark woods, the clearings were holy in their memory and experience, recalling not only their lives but also the lives of their ancestors since the world began. This sacred order was never seen as a commodity that could be sold; it could only be shared. The Mawíomi maintained peace and continuity by sharing the history and experiences of the Mi'kmaq through the ceremonies and stories of ancient times and the reading of the wampum laws. The Mi'kmaq continue to honour and receive strength from the seven directions and the seven entities in their gatherings at the great council fires. The honour and feasting are rekindled in the great fire, symbolic of the Great Spirit Creator, the power of the sun, of the earth, and of the lightning that caused the creation of Kluskap. In honour of Nukumi's arrival, the rocks from which she came are heated and water is poured over them in the sweat lodge. Thanks are given for her arrival and for the rebirth of all nations. The burning of sweetgrass honours Netawansum's arrival as thanks is given to the Four Directions and above, and to the ground and to one's heart and soul. In honour of the mother's arrival, the leaf and the bark of a tree and the stems are placed in the carved stones of grandmother, and the tamaqn or pipe is smoked. In these ceremonies and rituals lies the path to the knowledge and wisdom of the spirits of the ancestors.

2. Iroquoians and the Iroquois The Iroquoian peoples encountered at the time of earliest contact with Europeans were made up of many nations speaking related languages and occupying neighbouring territories. They included the Cherokee Nation in what is now Tennessee,9 the Tuscarora, Nottoway and Meherrin nations of North Carolina and Virginia, the Five Nations and Conestoga of New York and Pennsylvania, and the Hurons of central Ontario. Other northern Iroquoian communities were the Wenro, Neutral, Erie and Tobacco nations in the lower Great Lakes area and the Laurentian Iroquois, who occupied substantial settlements at Hochelaga (Montreal) and Stadacona (Quebec City) at the time of Jacques Cartier's explorations in 1535.10 The closeness and duration of relationships between these latter groups and other Iroquoian nations is not clear, because their languages,

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which would normally provide a means of tracing linkages and ancestry, disappeared with little or no documentation.11 The Vision of Three Crosses At the beginning of the cycle of Jenoo, the ice age, Nakúset's spirit came to an elder in a dream. The elder was approached by a young man carrying three crosses. He offered the old man the crosses telling him that each cross had a purpose in the survival of the people and, if used accordingly, the people would benefit by them. One of the crosses would serve the people in times of conflict with nature and with others. Another of the crosses would grant them safety on their long voyages and new experiences. The last cross would serve them in deliberations of councils, to aid them in making proper decisions for future generations. When the elder awoke, he called the village council. The three crosses and their meaning were explained, and he drew the symbols of the vision. This knowledge was widely shared with the other families and as instructions were followed, the famine lifted. Under the vision of the three crosses, the families allied in a nation of Cross-Bearers and adjusted to the hardships of the Jenoo. They survived enormous environmental changes by travelling to the southern and western doors. Their knowledge, language and culture were enriched by their travels, through which they met many other peoples. In addition, their understanding of the life forces and resources of the land and sea was expanded. The people continually reorganized themselves. When the Jenoo retreated, they returned to the eastern door of the tundra by canoe, following the rivers and the herds of animals. Using the seeds they carried with them, they renewed the tundra with many different plants, and many generations since then have aided the tundra in transforming it into many different forests. They have watched the earth, rivers and oceans respond to the force of melting water. As harvesters of the land and experts in manufacturing hunting and fishing equipment, they developed lances, spears, spear throwers, bows and arrows, birchbark canoes and fishing stations. When the people returned to the northern Atlantic coast and tundra, they lived in small families. Slowly these families grew into seven groups of the Nation of CrossBearers, and they became known as the people of the dawn, the keepers of the eastern door. Source: This story is based on unpublished material prepared by Marie Battiste and J. Youngblood Henderson for the Mi'kmaq Grand Council and on material from Father Chrestien Le Clercq, Nouvelle Relation de la Gaspésie (Paris: 1691), chapter X. The French original and an English translation are found in William F. Ganong, trans. and ed., New Relation of Gaspesia with the Customs and Religion of the Gaspesian Indians (Toronto: The Champlain Society, 1910; reprinted New York: Greenwood Press, 1968).

At the time of contact, Iroquoian nations, besides having common language roots, shared a number of cultural features. They lived in semi-permanent villages that they moved every 10 to 20 years, building new homes and clearing fields for the cultivation of corn

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and other crops. They practised a mixed economy of hunting, fishing, and gathering plants, nuts and berries and, in some places, maple sap. The Hurons and the Five (later Six) Nations, whose societies have been documented most extensively, belonged to clans identified with animal or bird totems, traced clan affiliation through the female line and were matrilocal. That is, the man joined the household of the woman he married. Extended families related to a senior woman shared a longhouse and included the elder woman's unmarried sons, her daughters and their husbands and children. Longhouses were typically 15 to 40 metres in length and about five metres in width, constructed of upright poles, with cross poles at about three metres in height and rafters, also made of poles, creating an arched roof. The whole structure was covered with elm or ash bark, rough side out, flattened, dried and cut in the form of boards. Houses were subdivided at intervals of three or four metres, with one compartment on each side of a central passage-way. Entrances to the longhouse were located at each end, with an emblem of the clan featured at one entrance. Two families would occupy each compartment and share a fire in the central passage. One longhouse might accommodate 10 to 20 families, and villages of 100 to 150 houses were common. The largest villages were estimated to house up to 3,000 persons. In earlier times the villages were surrounded by palisades for defence against attacks. Outside the palisades were the corn fields, often consisting of several hundred acres of cultivated land, subdivided into planting lots belonging to different families and bounded by uncultivated ridges.12 The Five Nations — Mohawk, Oneida, Onondaga, Cayuga and Seneca — were known by different names. They were collectively called Iroquois, the Iroquois League, the Iroquois Confederacy and, after the Tuscarora Nation was adopted into the Confederacy in 1715,13 the Six Nations. Their name for themselves was, and continues to be, Haudenosaunee, people of the longhouse. The name derived from the instructions of the founder of the confederacy, who declared that once they had concluded peace among the nations and had adopted a unifying good mind, they would live as one family with a longhouse that stretched from Mohawk territory in the east (the Mohawk River and Schoharie Creek just west of Albany, New York) to Seneca territory in the west (the Genesee River at Rochester, New York).14 The confederacy served not only to suppress conflict among its member nations but also to secure their territory from the intrusion of neighbouring nations. Their environment was rich in all the resources they needed to maintain themselves. They were therefore well positioned politically and economically, as well as geographically, to engage with colonists and colonial governments in trade and politics. In their struggle to gain control of trade and later lands, European powers competed for the allegiance of the Haudenosaunee through the seventeenth and much of the eighteenth century.15 The pivotal role of the Haudenosaunee in colonial history16 made them the objects of intense interest on the part of ethnologists and historians. Additionally, the resurgence of interest

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in their traditional forms of governance among the Iroquois themselves has awakened renewed interest in the origin, structure and effectiveness of this ancient confederacy.17 Just how ancient is a matter of contention. On the basis of archaeological and linguistic evidence and the examination of physical traits, scholars have debated whether the Iroquois culture emerged in northeastern North America or migrated from elsewhere. A number of scholars concur now that Iroquoian culture has existed and evolved continuously in the historical homeland just described for 4,000 to 6,000 years.18 Although there is evidence of rapid and unexplained culture change between ancient times and the time of contact, some scholars argue that these are best explained by culture borrowing, via extensive trade networks and geographic shifts among neighbouring peoples, rather than by displacement of other culture groups by Iroquoian newcomers.19 Continuity can be established between the culture practised at excavated sites, dated around 500 BC, and the culture of the Haudenosaunee as encountered at the time of contact. There is evidence of the introduction of corn cultivation and a shift to a less mobile way of life between 500 and 800 AD. Artifacts at excavation sites and remains of houses indicate that by 1300 the longhouse was the standard dwelling, and the complementary social institutions were almost certainly in place or emerging. Significantly, there is evidence of violent death and cannibalism in this period as well.20 The Haudenosaunee have less concern than non-Aboriginal scholars with establishing a date for the origin of the confederacy. They state simply that the League of Peace was in place before the arrival of Europeans on the eastern seaboard. Since the Haudenosaunee maintain an oral ceremonial culture by choice, written versions of their traditions are at best approximations of the laws and protocols that give substance and cohesiveness to the confederacy.21 To provide a few glimpses of the workings of the confederacy we refer to historical and ethnographic accounts and to a presentation made to the Commission by a highly esteemed historian and ceremonialist, Jacob (Jake) Thomas, a chief of the Cayuga Nation. According to oral tradition the Five Nations at one time were enmeshed in wars and blood feuds: This is what was happening at the time the Creator made mankind. He put us on earth to get along. He gave us love. He gave us respect, appreciation, generosity.... But for the longest time it didn't work. Maybe it worked for a while, but then people began to forget what they were instructed.... He instructed us, this is the way we should be, but we forget. Then we start things that we're not supposed to do on earth, go against one another.... We also had cannibalism, cannibals, in those days. That's what I'm talking about. We never ever hide those stories, what happened in those days, so our children will learn how our people were way, way back. Chief Jacob (Jake) Thomas Cayuga Nation Akwesasne, Ontario, 3 May 199322

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In this period of conflict and bloodletting, a child was born to a Huron woman who lived with her mother on the north shore of Lake Ontario.23 After many signs indicating his special character and mission, the Peacemaker24 set out across Lake Ontario in a stone canoe to bring a message of peace to the warring Five Nations. In Mohawk territory the Peacemaker encountered Hiawatha, an Onondaga who had been driven mad with grief at the loss of his family through sorcery. The Peacemaker condoled Hiawatha, restoring his mind with words that were subsequently incorporated into council proceedings and called variously thereafter the words of the Requickening Address, the Welcome at the Woods' Edge, Rubbing Down of the Body, or the Three Bare Words if spoken without the use of wampum. The Peacemaker and Hiawatha together drafted the Great Law of Peace, which became the constitution of the Haudenosaunee, with each article symbolized by a string of wampum.25 The central message of the law is summarized as Righteousness, Health and Power.26 According to tradition, the Peacemaker said, I carry the Mind of the Master of Life...and my message will bring an end to the wars between east and west. The Word that I bring is that all peoples shall love one another and live together in peace. This message has three parts: Righteousness and Health and Power — Gáiwoh, Skénon, Gashasdénshaa. And each part has two branches. Righteousness means justice practiced between men and between nations; it means also a desire to see justice prevail. Health means soundness of mind and body; it also means peace, for that is what comes when minds are sane and bodies are cared for. Power means authority, the authority of law and custom, backed by such force as is necessary to make justice prevail; it means also religion, for justice enforced is the will of the Holder of the Heavens and has his sanction.27 The rule of peace was to be achieved by persuading leaders of nations to reflect on the good message, for, as the tradition teaches, the power of the good mind could take hold of the most vicious cannibal and transform him into an emissary of peace. The Peacemaker and Hiawatha succeeded in persuading first the leaders of the Mohawk, then in succession the leaders of the Oneida, all but one of the Onondaga, the Cayuga and the Seneca to the way of peace. However, Atotarho, a powerful Onondaga chief, whose head was covered with snakes and whose body and mind were twisted, rejected the good message. Through the combined strength of the chiefs of the Five Nations, who approached his dwelling singing a song of peace, and the eloquence of Hiawatha, who explained how the law would work, and the spiritual power of the Peacemaker, who could make straight both mind and body, Atotarho came to accept the message of peace.

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He was made chairman of the council of the League of Peace, and the central council fire was placed in the territory of the Onondaga. To mark the peace that had been concluded, the Peacemaker uprooted a great white pine tree, and his words establishing the symbol of the tree of peace are recorded in the Great Law: I, Dekanawideh, and the confederate lords now uproot the tallest pine tree and into the cavity thereby made we cast all weapons of war. Into the depths of the earth, down into the deep underearth currents of water flowing into unknown regions, we cast all weapons of strife. We bury them from sight forever and plant again the tree. Thus shall all Great Peace be established and hostilities shall no longer be known between the Five Nations but only peace to a united people.28 The Great Peace was not to be restricted to the Five Nations alone. The law also provided Roots have spread out from the Tree of the Great Peace...and the name of these roots is the Great White Roots of Peace. If any man of any nation outside of the Five Nations shall show a desire to obey the laws of the Great Peace...they may trace the roots to their source...and they shall be welcomed to take shelter beneath the Tree of the Long Leaves.29 The Condolence Ceremony The condolence ceremony to raise up a new chief began with attention to the grief of the family, clan and nation that had suffered loss. The words and ministrations were carried out by the nations and clans, which sat on the opposite side of the council fire. We have met in dark sorrow to lament together over the death of our brother lord. For such has been your loss. We will sit together in our grief and mingle our tears together, and we four brothers will wipe off the tear from your eyes, so that for a day period you might have peace of mind.... This we say and do, we four brothers.* Now hear us again, for when a person is in great grief caused by death, his ears are closed up and he cannot hear, and such is your condition now. We will therefore remove the obstruction [grief] from your ears so that for a day period you may have perfect hearing again... This we say and do, we four brothers. Continue to hear the expression of us four brothers, for when a person is in great sorrow his throat is stopped with grief and such is your case; now, we will therefore remove the obstruction [grief] so that for a day period you may enjoy perfect breathing and speech. This we say and do, we four brothers. The foregoing part of the condolence ceremony is to be performed outside the place of meeting. The practice of memorializing agreements in wampum goes back to the founding of 58

the Confederacy. Wampum belts of varied design are objective representations of the principles of democracy institutionalized in the Great Law of Peace. The Hiawatha wampum belt, for example, depicts the founding of the Confederacy, with two nations represented by rectangles on either side of the Onondaga, the Firekeepers, who are represented by a pine tree. One of the duties of the Onondaga Nation, as Firekeepers, is to care for the belts and strings of wampum that have been preserved as repositories of Haudenosaunee culture and law. The ceremony then moves to the place of meeting. A drink of medicine is offered that, "when taken and settled down in the stomach it will pervade the whole body and strengthen him and restore him to a perfect form of man." The signs of death are wiped away from the seat of the mourners and the dark mood that has settled on the mourners is lifted with these words: When a person is brought to grief by death he seems to lose sight of the sun; this is now your case. We therefore remove the mist so that you may see the sun rising over the trees or forest in the east, and watch its course and when it arrives in midsky, it will shed forth its rays around you, and you shall begin to see your duties and perform the same as usual. This we say and do, we four brothers... We therefore cause you to stand up again, our uncles, and surround the council fire again, and resume your duties... Now we return to you the wampum which we received from you when you suffered the loss by death. We will therefore now conclude our discourse. Now point out to me the man whom I am to proclaim as chief in place of the deceased. * The four brothers' side of the Confederacy Council consisted of the younger brothers, Oneida and Cayuga, together with adopted nations, the Tuscarora and the Tutelo. See Michael K. Foster, "On Who Spoke First at Iroquois-White Councils", in Extending the Rafters (cited in note 11), p. 203. Source: The quotations are from Parker on the Iroquois (cited in note 26), Book III, pp. 110-113.

Although each of the Five Nations retained autonomy in internal affairs, each had chiefs appointed to a central council, which met at least once a year. Fifty titles to denote the rank of chief were established and distributed unequally among the Five Nations. The Mohawk had nine seats in council, the Oneida nine, the Onondaga 14, the Cayuga 10, and the Seneca eight. However, the different weight of representation did not give any nation an advantage, since decisions were made by consensus.30 Consensus decisions were reached by the following process: the Mohawk, Seneca and Onondaga were designated the Elder Brothers; the Oneida and Cayuga were the Younger Brothers. The Elder and Younger Brothers sat on opposite sides of the council fire while the Onondaga, the Firekeepers, took their place on a third side. Counselling began with the Mohawk chiefs conferring together, and having reached a decision, their speaker announced it to the Seneca. If these tribes found they were in 59

agreement, the speaker of the "Three Brothers", who was usually a Mohawk, announced the decision of the "Three Brothers" side to the chiefs of the opposite side. In like manner, the chiefs of the Oneida and Cayuga arrived at a decision, which was then announced by the speaker of the "Two Brothers" side...31 The matter might be passed back and forth across the fire several times before agreement was reached. The Firekeepers would then summarize and confirm the decision. If no agreement could be reached, the Firekeepers might defer a decision or, if it was an urgent matter, they could break the impasse by taking a position. The chiefs of the central council, sometimes called sachems or confederate lords, were nominated by clan mothers, the senior women in families entitled to make these nominations. According to tradition, a woman, Jigonhsasee, was the first person to accept the message of peace and power. The Peacemaker called her the Mother of Nations and declared that women would have the responsibility of naming chiefs to their titles and offices. There was considerable consultation among household members, clan members and coresidents of the village in the choice of a chief. The nominee had to have the support of councils involving both men and women at each stage of consultation, and finally he had to win confirmation for his lifetime position at a general council of the confederacy, where his character from childhood was under scrutiny. Men were the speakers in council but women played an active advisory role. Women were also responsible for warning chiefs who failed to represent the interests of the people and for removing them from office if they did not heed the warnings. A new chief was installed in his position as a sachem of the Confederacy Council in a condolence ceremony, which has been passed down in the oral tradition since time immemorial.32 In addition to the titles of peace chief, which were passed down through families, there were pine tree chiefs who attained non-voting positions on council through merit. There were also speakers designated to bring forward matters specifically on behalf of the women or the warriors, or to announce decisions reached by the sachems. "Speakers were chosen for their ability to grasp principle and fact, for rhetorical gifts, and for retentive memory in a society in which most men and women were walking archives."33 In colonial times, such speakers were very influential, often being identified by recorders when the decision makers for whom the speaker was the voice remained anonymous. The Confederacy Council was responsible for external affairs, which included trade, alliances and treaties. They also made decisions on engagement of the Confederacy in war, although individual nations, villages or families could mount war parties in situations where their own interests were affected. Confederate lords relinquished leadership to war chiefs in times of war, since the lords were selected for their dedication to the ways of peace. The qualities of character required of them are described in the Great Law:

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The Lords of the Confederacy of the Five Nations shall be mentors of the people for all time. The thickness of their skin shall be seven spans — which is to say that they shall be proof against anger, offensive actions and criticism. Their hearts shall be full of peace and good will and their minds filled with a yearning for the welfare of the people of the Confederacy. With endless patience they shall carry out their duty and their firmness shall be tempered with a tenderness for their people. Neither anger nor fury shall find lodgement in their minds and all their words and actions shall be marked by calm deliberation.34 To give substance to the notion that all the nations were of one family, the Great Law established that the clans, which are said to pre-date the founding of the confederacy,35 were to transcend national boundaries. Thus a member of the Bear clan would be related to all members of the Bear clan in any of the Five Nations. When he travelled he could expect to receive hospitality and be treated as a brother by his Bear clan relatives wherever he travelled, and he had to be careful not to fall in love with a sister encountered in his travels, because only marriage outside the clan was permitted. If the Five Nations made war on one another, brothers would be raising their hands to kill brothers. To dampen conflict over trespass and property, the Great Law established common access to hunting grounds: "We shall have one dish," said Deganawidah, "in which shall be placed one beaver's tail, and we shall all have a co-equal right to it, and there shall be no knife in it for if there be a knife in it there will be danger that it might cut someone and blood would thereby be shed."36 The whole of Haudenosaunee society was knit together in bonds of biological and attributed kinship, and each relationship carried with it reciprocal obligations. Matters of common interest were discussed first in the household or extended family, second in the convocation of clans to which the family members belonged, then in the groups of clans that made up a 'side' of the village council house, next by the council of the nation and ultimately, if the matter was of international scope, in the council of the confederacy. Decisions of the confederacy council followed, in reverse order, a similar path of consideration and acceptance or rejection in councils in each unit of society.37 Since the confederacy chiefs had no mandate to enforce decisions within the nations, their power rested solely on the respect their positions commanded and their skill in weaving consensus from the disparate positions represented in council deliberations. Authority to provide for the needy and care for the sick rested with mutual aid and medicine societies, which appear to have been village-based, although the rules of hospitality that bound biological relatives and clan members to share food and shelter with kin ensured that no one was destitute. Family and clan members carried responsibility for resolving disputes, which were more likely to entail offences against the person than violations of property rights. Strenuous efforts were made to reconcile the persons and the families of victim and offender, for the consequences of the blood feuds

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that once prevailed among them were kept fresh in their memories through recitals of the Great Law.38 How the integrity of a wholly oral tradition is maintained over generations is described by Leon Shenandoah, the contemporary holder of the Onondaga title of Atotarho, the most honoured position in the confederacy council. As a small child he was taken to a Seneca man to have a curing ceremony performed. An old man at the ceremony stood up and announced, "You are that boy!" — the one who would have a high position when he grew up. It was already decided, when I was young, what I am doing today. My mother didn't say anything, but that's probably why she pushed me along this path. We made a special point of going to ceremonies. When there was a ceremony in the longhouse, I wouldn't go to school. My mother said, "You're not going to school. You're going to the ceremony". That made me glad. I didn't like school. So I grew up going to the ceremonies all the time, and in time I learned how to run the ceremonies and to be in charge. And now it is getting to be a time when someone else must learn and take over from me. When I was young and I first began to listen to the chiefs, one of the two men I have known in this lifetime who held the title of Tadodaho [Atotarho] stood at council and said, "You must watch what we are doing and listen to what we say. Someday we will not be around and others must succeed us." He met with the group I was with, and it sounded like he was talking to me. Since then I have tried to live that way — as though he were talking to me.39 In his testimony to the Commission at Akwesasne, Chief Jake Thomas also spoke of the long apprenticeship necessary to fulfil the role of sachem: "I have sat, you might as well say, for fifty years, to gain my knowledge." William N. Fenton, a prominent scholar of Iroquoian cultural history, who set the pattern for much of the research conducted since the 1930s,40 has taken a number of carefully grounded positions: (1) that the political structure of the Iroquois League is ancient in origin and that it has remained stable over a long period;41 (2) that "In the crucible of Indian and White relations the patterns that had governed Iroquois life for centuries became compelling and forced the White people to approach the Indian in a highly ritualized way that was completely foreign to European ways of thinking";42 and (3) although versions of the oral tradition differ from one ceremonialist to another, and while some elements of culture have dropped out and others have been inserted, the underlying structure persisted, "so that when one compares the paradigm of the Condolence Council [for installing confederacy chiefs] of today with the protocol of the earliest alliances and treaties, essential parts are recognizable and seemingly identical." Fenton concludes that ethnohistory is best served by applying insights from contemporary accounts of Aboriginal persons knowledgeable in their culture, along with documentary records that are fragmentary and sometimes blatantly biased by the political or economic motives of the colonial participants, to achieve an in-depth understanding of early relations.

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The Haudenosaunee have quite a different test for the authenticity and authority of the traditions that have been passed down orally and that they practise today. As Chief Thomas explained, "That peace is supposed to work. It's the power of the words of the Creator where they came from, of unity, being of one mind, a good mind. That's what makes power."

3. The Blackfoot Confederacy The boundaries of the territories of the Blackfoot Confederacy in the period after 1756 were the Rocky Mountains on the west, the Yellowstone River in the south, easterly into the Cypress Hills, and northward to the North Saskatchewan River. The Siksikawa (Blackfoot), the Kainaiwa (Blood), and the Pikuniwa (Peigan) were members of the confederacy that shared a common language and culture, and they were joined by their allies the Tsuu T'ina (Sarcee) and the Gros Ventres. The confederacy's neighbours on the plains included the Crow and the Dakota, traditional enemies, who were to the south and southwest; the Assiniboine, with whom they shared the Cypress Hills area to the east; and the Cree, with whom they were often at war, to the northeast. Existing as politically distinct nations, the members of the confederacy occupied welldefined territories and were economically self-sufficient. While the confederacy allied them in the protection of their lands and the security of their nations, each member nation was politically independent — laws and protocols did not allow interference in one another's internal affairs except by invitation. Nevertheless, Often their members intermarried; frequently they united to hunt, to fight, or to celebrate as related peoples joined in a common enterprise. This constant intermingling...and the communal reliance upon the buffalo, forged lasting bonds. From this common experience developed a reality, a traditional collective consciousness specific to the Blackfeet.43 The Blackfoot have been referred to as Tigers of the Plains, and certainly there was conflict among the nations inhabiting the plains area and beyond. However, it often took the form of raiding parties to capture horses and take revenge, or to prevent illegitimate incursions on their respective lands, rather than to capture territory. Generally, the nations of the plains were content to live within the territories given them by the Creator as their collective property, and this they defended. The westward advance of the fur trade and non-Aboriginal settlement upset this balance and created conflicts between those who were displaced and those upon whose territories they were forced to relocate. The introduction of the horse in the early eighteenth century greatly increased the mobility of the plains peoples.44 Unlike the more sedentary woodland and agricultural nations, they used large territories to support their hunting and gathering economies. Relations with neighbouring nations for trade and land use were secured through various forms of peace treaties and protocols. Peaceful relations existed as long as these arrangements were respected — wars erupted when they were not. The Blackfoot

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epitomized plains cultures: "Of all the Plains Indians, the Blackfoot were most feared because of their daring, relentless spirit, their skill with weapons, and their amazing horsemanship."45 The land was considered a mother, a giver of life, and the provider of all things necessary to sustain life. A deep reverence and respect for Mother Earth infused and permeated Indian spirituality, as reflected in the Blackfoot practice of referring to the land, water, plants, animals and their fellow human beings as "all my relations".46 Relations meant that all things given life by the Creator — rocks, birds, sun, wind and waters — possessed spirits. According to their beliefs, the Creator had given them their own territory and entrusted them with the responsibility of caring for the land and all their relations. This responsibility to protect their inheritance for future generations was embodied in the Blackfoot creation story: In later times...Na'pi said, "Here I will mark you off a piece of ground," and he did so. Then he said: "There is your land, and it is full of all kinds of animals, and many things grow in this land. Let no other people come into it. This is for you five tribes [Blackfoot, Blood, Peigan, Gros Ventre and Sarcee]. When people come to cross the line, take your bows and arrows, your lances and your battle axes, give them battle and keep them out. If they can get a footing, trouble will come to you."47 In Blackfoot, the word for earth is ksa'a'hko, which means 'touching the earth with the feet'. It meant that the land was an original grant from the Creator, and it was a grant to a specific people — not a grant in terms of individual ownership, but a grant in accordance with their world view and philosophy, for 'all my relations'. These relations among all living things were essential in maintaining the continuity of creation, for if the relational network were interfered with, imbalances would occur and the process of creation could come to a halt.48 Stories, legends and ceremonies transmitted these laws to assure the continuity of the nation and prevent unnecessary destruction of animals and nature: Creation is a continuity, and if creation is to continue, then it must be renewed. Renewal ceremonies, songs and stories are the human's part in the maintenance of the renewal of creation. Hence the Sundance, the societal ceremonies and the unbundling of medicine bundles at certain phases of the year are all interrelated aspects of happenings that take place on and within Mother Earth.49 Sacred sites were located in mountains and hills. Along with rocks, rivers and lakes these sites were designated for various purposes — vision quests, burial sites, recreational or medicinal uses, sundances and meeting (council) places within the Blackfoot territorial domain. Each site was named for its unique quality and special role in the rituals of the nation and became part of the living landscape to be visited and revisited each year. Gifts were left to pay tribute to the spirits that lived there.

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The plains peoples were profoundly spiritual, and each day at sunrise they gave thanks to the Creator for the gifts bestowed upon them. In pipe ceremonies and spiritual ceremonies, all of creation was enjoined in the celebration of life and in supplication lest they be found unworthy. Since the entire universe was believed to be inhabited by spirits, both good and evil, rituals were performed to ward off evil and to keep the world balanced on the side of good. Cosmic forces and celestial bodies were revered as powerful beings, since cosmic forces regulated seasons and migration patterns. Medicine wheels connected the stars and the universe with the earth. Since the spirit (soul) would return automatically to its maker, the people of the plains did not worry about death or the hereafter but concerned themselves with the care of living things around them: ...the entreaties of an Indian's prayer are devoted entirely to his earthly existence. He does not seek to have his sins forgiven, neither does he beseech any deity to make of him a righteous person, so that he may be eligible for the abode of the blessed, because that principle is foreign to his belief. He believes that there is only one specific Hereafter, where all Indians, irrespective of how they have conducted themselves during their sojourn on earth, will go. This Hereafter is called by them the "Big Sands".50 Plains peoples were great believers in the supernatural, and dreams influenced daily movements and decision making. Vision quests provided guidance from the Creator, and medicine men and women, the old and the wise, predicted events and foretold the future through visions. Designs, pictographs and totems received in visions were painted on teepees and other personal articles. The Blackfoot gathered once a year for their annual Many Lodges Gathering (sundance) in June or July: At such gatherings, all the main warrior, religious, women's, children's and police societies held their own special and unique ceremonies. It was a time for spiritual renewal and purification and the fulfilment of spiritual promises made to the Creator for the benefit of a loved one. Such ceremonies were performed in the main Sundance lodge situated in the middle of the huge teepee circle. It was also a time for visiting long missed relatives. It was a courting time for the young adults. Important decisions for the whole nation were made at these gatherings by the Head Chiefs and the Minor Band Chiefs, e.g., whether or not to make peace treaties or war on neighbouring enemy tribes. It was also time for exchanging gifts of all kinds and transfer ceremonies of sacred bundles, teepees, and society memberships. It was a great joyous occasion.51 The Sacred Pipe was given to the Indian nations by the Creator to pray with in search of wisdom, guidance, knowledge, and to bind all the relations together. In prayer and supplication, the ceremonial pipe was offered to the Great Spirit and to the Four Directions — east, south, west and north — to Father Sky, and then to Mother Earth. The

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sacred pipe linked man to his Maker, to the planet, animal, plant and spirit worlds, to his fellow human beings, and to himself. It created unity and harmony between all the powers of the universe and joined them in prayer. Smoke from the Sacred Pipe, which carried prayers and offerings to the Creator, were helped on their way by the thunderbirds, with the eagle at the apex of the thunderbirds. Smoking and touching the pipe were acts of consecration and imparted peace and truth to all who touched it and partook of the ceremony. The pipe invoked the Creator in healing, in deriving wisdom and guidance in times of trouble, in seeking knowledge in councils for decision making, and in obtaining blessings when decisions were made. Nothing but good could come from the pipe; anything bad or negative was banished in the presence of the Creator. The pipe was a testimony to the truth and honour of all sacred pacts undertaken in councils and among indigenous nations and, later, in the making of treaties with the Crown. Natural medicines were carefully gathered at various locations and in different seasons of the year and preserved so that a continuous supply was available year-round. Such medicines served the people well in the normal course of events, but they were not effective when foreign diseases, with which they had no prior experience, made their appearance. Cleanliness, in both mind and body, was practised as part of the daily ritual. For example, water and steam in sweat lodges were used for cleansing the mind, the spirit and the body throughout the seasons. Sweat baths, sweetgrass and other herbs acted to cleanse the mind and body before entering into sacred or healing ceremonies such as the pipe ceremony or the sundance. Diet and their active, outdoor way of life combined to make the people of the plains healthy and robust until the diseases brought by Europeans and the destruction of their food supply, especially the buffalo, destroyed the balance of their societies. Blackfoot land had all the natural elements required to sustain the nation. Theirs was a hunting and gathering economy, and although the buffalo was their staff of life, other big and small game, as well as migratory and other birds, supplemented their diet. The berries, plants, herbs and root crops that grew naturally on the plains were harvested in a routine that was anything but nomadic, a term that has tended to signify a haphazard use of the land.52 The wide variety of meats, fruits and vegetables assured the Blackfoot children of magnificent physical development. Although lesser animals were used for food, the buffalo was considered the superior food by the plains peoples. Seasonal movements were largely synchronized with the movement of the buffalo and other animals and the ripening of plants, foods and medicines. Groups had rather fixed patterns of movements on the plains during the summer and as they moved in their annual cycle from spring to summer and fall to winter. In their wintering sites small

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separate groups lived along sheltered, wooded river bottoms within reach of the buffalo and within reach of other groups to ensure protection against enemies. People of the plains nations were able to preserve and store large quantities of meat (jerky), sometimes mixed with mint and sage, for the long winter months. Pemmican made from sun-dried strips of meat was shredded, mixed with rendered oil from the buffalo and with berries and dried vegetables, and stored. Long forays were made to trade with other nations, a trade in which pemmican, buffalo robes, Blackfoot weapons and other goods were exchanged for shells, beads, pipestone, paint and religious products. Trading with the Ute and Paiute nations for salt at Salt Lake was also frequent. It was the buffalo, however, that remained the basis for their economy because it provided for virtually all their needs. The buffalo supplied working tools, drinking vessels, storage containers, shields, transportation equipment and shelter — the average lodge or teepee required perhaps 15 buffalo hides. Clothing was made from buffalo and other big game hides, tanned and worked until it was soft and pliable leather. Fringes and dyed quill designs were added for decoration. Headwear and footwear were fur-lined in winter and made lighter in summer. Buffalo, bear, elk, mountain goat and other large game provided robes, blankets and clothing for warmth in winter. Because they were the means of ensuring a viable economy, horses became the measure of a person's wealth by the early nineteenth century. Horse trading was extensive throughout the plains, and training and breeding of horses required a great deal of time and energy. Stamina, agility and speed were the attributes of a valuable horse. The relationship between the buffalo and the plains peoples was one of respect and interdependence in the sense that, if the people protected the buffalo, the buffalo would protect them by supplying their most important resources. The buffalo were revered as true soul mates because, like the people who chased them, the buffalo were believed to have a free and indomitable spirit.53 The buffalo is considered sacred by the Blackfoot. In Blackfoot myths, the buffalo was the first animal given to the Blackfoot by the Creator for food. It is the totem of the oldest and continuing sacred societies of the Blackfoot: the Horn Society. The Horns conducted their ceremonies during the annual sundance.54 The destruction of the buffalo and the economy of the plains peoples was unsurpassed in its terrible impact — widespread starvation ensued, and they could no longer produce the food, clothing and shelter they needed. More than anything else, it dealt a mortal blow to the spirit of the plains peoples from which it would take a long time to recover: But now the face of all the land is changed and sad. The living creatures are gone. I see the land desolate and I suffer an unspeakable sadness. Sometimes I wake in the night, and I feel as though I should suffocate from the pressure of this awful feeling of loneliness.55

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In Blackfoot culture, descent was recognized through both the paternal and the maternal line. Men and women contributed to the continuance of the nation in different ways. For example, men were providers of food and protection, while women were responsible for overseeing the domestic side of tribal life. Although women were the backbone of these societies, providing for many of the material needs of the tribe, they were also the teachers, inculcating tribal laws and customs in every facet of tribal life. Where men sought valour and respect in manly deeds, the survival of the nation also depended on the moral and spiritual strength of the women. Like Mother Earth, women were held in high esteem as givers of life and were protected and sheltered by the nation. Some played powerful roles. Among the Blackfoot, for example, women of impeccable character presided over the sundance. Among the Peigan, the term Ninaki was used to indicate a chief woman or favourite wife, who was accorded certain exceptional privileges and prestige in areas typically associated with men. The 'manly hearted women' excelled in every important aspect of tribal life — property, ownership, ceremonialism and domestic affairs.56 As well, the Blood had a society for women called the Motoki, which conducted rituals to honour the importance of the buffalo to their culture. The Blackfoot ethical code was imparted to the young through oral history and traditions. Social and moral codes were rigidly enforced, and premarital social interaction was conducted in public. In addition, children were taught by example. Girls and boys used play modeled after the adults' behaviour and were thus imbued with the values of the society — industriousness for girls and hunting ability and bravery for boys. Young men learned horsemanship and were trained to be equestrians of the plains. Summer and winter games occupied the young, while socializing, tea drinking, visiting and storytelling occupied the adults during long evenings. Blackfoot youth and men enjoyed passing the time with gambling and games of chance. Status was earned by individual achievement and provided the incentive to succeed. Wealth was measured by the ability to provide a plentiful food supply and indirectly by the number and quality of horses in one's possession. Careful management of breeding stock increased the number of horses and, correspondingly, one's wealth. Horses were critical to the economy and defence of the nation, and the material wealth of the individual depended to a great extent on the number of horses at his disposal. Raiding for and breeding horses were the principal means of increasing their numbers. The number of horses available at any given time often meant the difference between life and death in situations that presented a threat. Although it was the exception rather than the rule, men who were good providers had several wives, because many women were war widows and needed a provider, and because the production of food, clothing and shelter was difficult and required the labour of many hands. The families of the chiefs and other good providers extended their largesse to the poor, the old and the indigent. Because of the tradition of sharing and the lack of many types of accumulated wealth (e.g., permanent dwellings), the passing on of

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social status through inheritance was limited. Rather than accumulation, the culture emphasized the exploration and expansion of the spiritual dimension. While land was owned collectively by the Blackfoot people, individual ownership of property existed, aside from land, and could be transferred from one individual to another. No one could appropriate the property of another member, and the right of individuals to defend their property was part of the nation's law. In their social organization, the Blackfoot and allied nations were notable for their use of organized societies to carry out particular administrative, spiritual and other functions. There were at times eight different societies officiating at the various hunting, social, ceremonial and political gatherings of the nation, each with different responsibilities. Police or warrior societies carried out the orders of the political chief and of the war chief if he was in control. These societies served to police tribal life and to settle disputes, being responsible not only for punishing offenders but for rehabilitating them as well.57 Youth served in different societies as they grew older and were given more responsibility according to their age and abilities. By their 20s they served as camp police, patrolled at night, acted as guardians during the hunt, protected the band, and carried out punishment. Absolute governmental authority was exercised only at special occasions such as the annual tribal hunts or the 'Many Lodges Gathering'. The police societies (All Brave Dogs and Black Soldiers Society) were used to the greatest extent by the Chiefs to carry out 'executive orders' and instructions on how to maintain the camp or who was responsible for a number of important government functions and roles of key tribal government officials. The greatest of the Chiefs would not personally or directly command a recalcitrant individual to fall into line. That duty or order was carried out by a member of the police societies.58 The secret Horn society oversaw the buffalo hunt and participated in the sundance. When communal hunts were held in the summer and fall, order and discipline prevailed. Adults who broke the law were held up to public ridicule and embarrassment. Their social standing was so diminished that it sometimes drove offenders into self-imposed exile or battle. The tremendous power of public censure did much in itself to curtail dishonourable conduct, misbehaviour and violence. Transgressions and other deviant behaviour were dealt with by consensus in council with the chief, the war leader and the heads of families.59 Punishment and penalties were meted out for murder, theft, adultery, treachery or treason, cowardice, and greed or selfishness. Although murder was rare, when it occurred the aggressor was stripped of his property and revenge by relations was allowed. Theft required the full restoration of the property after apologies were made. Adultery could sometimes result in death, but divorce was allowed in some cases by returning gifts provided at the time of marriage.60 A woman could leave her husband because of cruelty or neglect, or a family or other type of intervention might occur. There was, however,

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enormous social pressure to preserve the family unit and ensure couples stayed married. Divorce was discouraged and marriage looked upon as permanent, since the inability to preserve them meant that relational networks would break down and weaken the social structure of the nation. Treason, where it involved the security of the nation, meant death on sight. Cowardice was rewarded with ridicule, and greed, when a person acted selfishly against the interests of his people, was dealt with severely. A greedy person, or a person with an acquisitive nature, was quickly ostracized in tribal life. Hunting expeditions were managed carefully and anyone who interfered with the buffalo hunt by disrupting it or contravening orders was dealt with swiftly and effectively by having his horse seized, his riding gear destroyed and his other possessions taken.61 However, taking responsibility for one's behaviour and offering restitution usually allowed the offender to return to the tribal structure. "Conformity, not revenge, was sought, and immediately after a promise to conform was secured from the delinquent, steps were taken to reincorporate him into the society."62 Plains nations tended to be band-centred during most of the year, but nation-centred during the summer months. The band, the smallest political unit, was built upon the extended family. Bands lived separately for most of the year and came together annually for major summer ceremonies and communal hunting. The band had to be small enough to sustain its economic base yet large enough to protect itself. Bands were fluid and mobile political units operating year-round and made up the larger political unit of the nation, which met in council annually. Leaders or headmen of bands held office throughout the year, but those who officiated and acted as spokesmen at the nation level exercised authority at that level only when the nation met in annual council. "The most influential band chief became recognized as the head chief of his tribe. However, his rank was of little significance except during the period of the tribal encampment in summer. Even then his role was more that of chairman of the council of chiefs than of ruler of his people".63 Leaders were not elected to office, but gained recognition for their contributions to the band and the nation and for personal qualities such as wisdom, honesty and strength.64 Two essentials for leadership were an outstanding war record and a reputation for generosity. Leaders had to be warriors of proven mettle with the ability to protect the band and to carry out acts of revenge, or war, against the enemy. Generosity was equally important: A chief could receive and maintain his status only by lavish generosity to the unfortunate. Therefore, charity, next to a fine war record was the basis for achieving and maintaining high standing. Especially among the Blackfoot tribes, a man aspiring to become a leader sought to outshine his competitors by his feasts and presents given to others, even at the cost of self-impoverishment. Once selected, he was expected to give away with one hand what he had obtained with the other. Greed...was not a Blackfoot virtue and was despised

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as a personal trait....Care of the poor was one of the recognized responsibilities of the band chief. Should he fail in this duty, his leadership position was seriously jeopardized.65 Persuasion through oratory played no small role in maintaining leadership. Oratory and the individual's experience and accomplishments frequently determined the stature of a leader: Council meetings were usually attended by the head chief, the war chief, and the heads of leading families. Decisions were made by consensus, rather than by majority vote, and the head chief seldom tried to give direct orders to the other councillors. He knew they were too proud and independent to be intimidated and that they could always withdraw from the camp if they disagreed with him. Instead the head chief tried to win adherents through oratory; when he felt he had enough support, he would announce his own intentions. If there was a dispute as to whether the camp should move north or south, the chief might present his arguments, gain support, and then say that he was going south. He did not order the others to follow, but he knew that they would probably go with him.66 Leaders who lost the respect of their members lost their following: The Blackfoot had a system of informal leadership. The "chiefs" were "leaders only by the consent and will of their people". They had no power except that of personal influence. A head "chief" was not formally selected; he "attained his position simply by a growing unanimity on the part of the head men of the bands as to who should hold the position". If the band headman opposed the desires of the members of his band, the band simply deserted him and got another headman. The tribal councils were likewise informal; they were just gatherings of the band headmen.67 The civil and military system of government of the Blackfoot, described by David Thompson, was orderly and well managed:68 [They] had a civil and a military chief. The first was called Sakatow, the orator, and his office was hereditary in the family. He was responsible for order and discipline throughout the tribe, and had under his command a company of couriers who travelled from one camp to another delivering orders of the day, and collecting news. The information thus gathered was made known to the lodges each day at sunset, somewhat after the fashion of a town-crier. In addition to his couriers, the civil chief had charge of the police force, whose function it was to quell all civil disturbances, keep order in camp, and strictly supervise the nightly games of chance with which the young men entertained themselves. The war chief, on the other hand, concerned himself solely with the training of his young men in the arts of war, and in leading his tribal forces against the enemy.69

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The proliferation of mobile plains cultures increased the range of encounters among nations, leading at times to conflict. War was sometimes seen as a game, with horses the bounty and prestige that could be achieved by carrying out formalized deeds of skill and bravery — for example, through counting coups, which involved touching (not killing) the enemy with a weapon. Trespassing on a nation's territory without previous arrangement or warning often ended in warfare. Intruders, in search of furs and buffalo to supply trading posts, often ventured into the lands of plains peoples, causing them to push the invaders back. The Blackfoot and Cree, who had many altercations, made periodic efforts to settle their differences by making peace treaties.70 Raiding for horses or revenge also created conflict and war. The Blackfoot generally raided for booty, and the booty was usually horses. Revenge, as a system of retribution, was essentially an eye for an eye, a tooth for a tooth, and was customary for Blackfoot and other plains nations. When one of their people was deliberately killed or injured, action was taken against the offending band or nation. Retribution was meted out swiftly to the first persons of the offending nation who were encountered, rather than the specific individuals guilty of misconduct. A fierce love of freedom and independence, balanced by responsibility to the Creator, the nation, the land and the others who inhabited the earth were the dominant characteristics of the plains tribes. They carried out their responsibilities of stewardship of the land for all their relations and for future generations. This stewardship remained intact until the buffalo, their lifeblood and soul mate, disappeared and the plains people were confined to smaller and smaller areas of land by non-Aboriginal settlement. Because of their individualism and independence, the Blackfoot failed to unite with other plains nations to defend and protect their common interests during the spread of settlement to the western plains. The Great Plains Indian was a firm individualist. No single person ever held total influence over any Blackfoot tribe. A Chief ruled by the "will of the people" so long as he remained true to his duties and continued to provide sound leadership. Individualism prevented the Great Plains Indian tribes from forming a great alliance against the armies of the Canadian and U.S. governments. This was fortunate for the soldiers and white settlers alike, for the Great Plains Indian tribes constituted the best light cavalrymen the world has ever known. Had they united, the course of Canadian and American history and politics could indeed be very different today.71 The Blackfoot, like all plains nations, suffered greatly from the crush of settlement and the resulting changes in the social, political and environmental landscape; but throughout they tried to continue to live in the traditions of their ancestors. Despite the Indian Act and constant attempts by governments to destroy their traditional governments and spiritual ceremonies, many Blackfoot people continue to apply traditional values in the selection of their leaders and in the internal and external relations of their governments.

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Over the years the Blackfoot have also been engaged in revitalizing and renewing their traditional forms of government, their ceremonies and all their relations with the physical and spiritual world around them.

4. The Northwest Coast The Pacific coast of present-day Canada is a region rich in food and other resources. In pre-contact times, the environment supported concentrations of population greater than in any other part of Canada, with the possible exception of southern Ontario where various Iroquoian nations practised farming.72 Tribes or nations throughout what is now coastal British Columbia, extending north to Alaska and south to California, shared elements of material culture and social organization. Well-established trade networks throughout the coastal region and into the mountainous interior allowed for easy exchange of prized materials and manufactured goods, while intermarriage between groups served to transfer social and ceremonial practices as well. Despite the commonalities of culture, which we will sketch through specific examples, the distinct identities and origins of at least seven major groups are evident in the distinct language families found in the northwest coast region: Tlingit, Tsimshian (including Nisg_a'a and Gitksan), Haida, Nuxalk (Bella Coola), Kwakwa ka'wakw (formerly known as Kwakiutl), Nootka and Salish. The land and waters of the region not only provide the means of sustenance in abundance, but they also prescribe the boundaries of human habitation. In the north, towering mountains of the Coastal range, cut by deep river canyons with sheer cliffs rising hundreds of feet, make travel difficult, except by water or through a few passes. In the south, river beds follow gentler gradients all the way to the rounded hills of California. Offshore currents moderate the climate and generate water vapour, which is carried to the coastal mountains where it condenses and creates the heavy rainfall characteristic of the region. Vegetation is dense, consisting mainly of thick stands of fir, cedar, spruce, yew and, in the south, redwood.73 Peoples of the northwest coast typically occupied permanent villages during the winter season and migrated to berry grounds and fishing stations during spring, summer and fall. Ancient garbage piles made up largely of shellfish shells preserve clues to village life in ancient times and indicate that people have lived in communities in the region for 5,000 to 8,000 years.74 Permanent houses were fashioned from the plentiful cedars, which yielded planks as large as two metres wide and 10 metres long. Tsimshian houses, for example, were 15 to 20 metres long on each side, with roof plates and floor sills cut into, and securely joined with, huge upright cedar logs. Vertical wall planks were fitted into grooves in the roof plates and sills, and gable roofs were supported by ridgepoles. Planks were removable and were carried on canoes, catamaran-style, to transport household goods to fishing sites in the summer season. Plank houses, or longhouses, accommodated 20 or more related persons and were grouped in villages of 500 or more persons. Houses were situated in a manner that reflected rank and social relationships, with the house of the highest ranking

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chief in the centre. According to legend, the various kinds of animals lived in similar ranked villages, either in the forest or beneath the sea.75 Detailed descriptions of northwest coast material culture and social relations are derived from anthropologists' accounts in the post-contact period, but they illuminate technology and intellectual culture reaching deep into the past. Examples from the Kwakwa ka'wakw are presented by way of illustration. The Kwakwa ka'wakw used cedar wood and bark for purposes other than housing. Canoes ranging in length from two to 20 metres were hollowed out of single logs and steamed to expand their width. Cedar planks were also used to make all manner of containers. Bentwood boxes were made by precisely scoring a plank on both sides, steaming it to make it flexible, and bending it to a ninety-degree angle. The fourth seam was pegged or sewn together and a bottom and lid added. In their roughest form they could be used for temporary storage, but careful crafting to make boxes airtight, and decorating them with family crests, raised the craft to an art form. Boxes were used to store food and ceremonial regalia, to cradle children and to bury the dead. Sheets of bark were stripped from trees, which might be felled or left standing. The smooth inner bark was beaten to make the fibres flexible for loom weaving of material for capes, skirts and blankets. The same bark, separated into even strips, was woven checkerboard style to make mats for serving food or lining sleeping quarters, for house insulation and partitions, and to protect canoes from the hot summer sun. Cedar roots and branches were gathered to sew planks together and to make utility baskets for storage, gathering and washing shellfish. Although the environment was lush, it did not offer sustenance without effort. The Kwakwa ka'wakw used an intimate knowledge of the woods and waters to exploit the wealth around them and sophisticated technology to recover and preserve available foods. Although everyone was expected to acquire the skills to work common materials into products for everyday use, there were also specialists who apprenticed as carvers and artisans or doctors who understood the healing properties of various plants. Tools in use at contact, such as adzes, chisels and knives made of shell, stone or bone, survive today in basically the same design, now made of metal. The surplus commodities generated by the knowledge and technical skills of people of the northwest coast not only provided security and leisure but also supported ceremonial life, centred around the feast or potlatch and trade between neighbouring and distant peoples. The practice of potlatching was intimately tied to the rank-ordered social organization of northwest coast societies. We draw particularly on accounts of the Tsimshian for illustration. In describing the arrangement of houses we noted that households normally included 20 or more members of an extended family. In the northern part of the region these relationships were traced through the mother. In the southern part they were traced more often through both mother and father. In addition, families were related to one another in

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looser groupings sometimes referred to as clans, sometimes as lineages or houses. Segments of several clans might be represented in a single village. Clans traced their origin to an ancestor who was either an animal that could assume human form or a human being who had encountered such a supernatural being. The ancestor was the originator or the recipient of special gifts, which might be represented in names, crests, songs, stories and entitlements to harvest the fish, game and plants of certain places. Only the descendants of the common ancestor could exercise the privileges bestowed, and the relationship with the spirit benefactor had to be maintained by ceremonial observances and correct behaviour. Names were inherited and carried with them different status and prerogatives. Thus, within a clan there would be a principal chief who carried the most prestigious name, while others in the lineage would have varying, lesser ranks. The clans making up a village would occupy different ranks, and chiefs of the various different villages, when represented at ceremonials, would all occupy recognized places in the overall order of prestige. Potlatches provided occasions to acknowledge and confirm this social order ceremonially. They were convened to mourn deaths, bestow names, erase the shame of accidents or ceremonial errors, recognize succession to titles and economic rights, and acknowledge marriages and divorces. The seating of guests and the value of gifts distributed accorded strictly with the prestige of each chief and lineage member. Attendance at the event and acceptance of gifts distributed confirmed that the participant had 'witnessed' the business being conducted. For example, if a chief died and a new chief assumed his name and rights over his territories, the new title holder would convene a feast where the boundaries of the territories would be recited. If the guests from other clans and neighbouring territories considered that the claims being made were wrong, they had an obligation to say so. Claims to territory, when validated through feasts, could not subsequently be overturned, because the memory of witnesses was a record as reliable in an oral culture as a deed in a registry office was in a literate culture. The chief hosting the potlatch had the authority to convene the feast and to collect surplus goods from clan members to feed the guests and distribute presents, but his ceremonial position did not give him authority over members. Being a good host and showing generosity brought respect not only for the chief but also for the members of his clan. The desire to uphold the honour of the clan motivated clan members and their relatives to contribute. Although the chief could not command, he did have influence in decisions about village defence or the well-being of members, but these decisions were normally taken in consultation with other ranking members of the household and/or chiefs of other clans represented in the village. Villages functioned autonomously, although villagers that were related linguistically or connected in trading relationships often came together ceremonially to cement relations. Conflicts within related groups such as the Tsimshian were known to occur over boundaries or the insult or even murder of a chief. Feasts were a means of avoiding or

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resolving such conflicts. Europeans observed that the potlatch was a way of fighting with property rather than with weapons. Obviously, potlatches could be convened only by clans favoured with surplus resources harvested and manufactured from their environment. Accumulating goods for distribution at a potlatch could go on for years if the claims to be validated were of major significance to the clan. Not only the clan members contributed to the preparations. The rule was that persons had to marry outside their clan, with the result that every individual was related to two clans. In a matrilineal society such as the Tsimshian, a chief was a member of his mother's clan. However, his father and his father's relatives contributed to the cost of hosting feasts and were subsequently repaid for their contributions, with interest. The potlatch was so essential to maintaining boundaries, limiting trespass, and securing harvesting rights and social order that Tsimshian and other west coast peoples were willing to risk and endure imprisonment rather than give up potlatching when the practice was outlawed by an 1884 amendment to the Indian Act.76 Gifts distributed to witnesses at potlatches included objects of everyday use and others elaborated and decorated for ceremonial value: utensils, blankets, boxes, canoes and copper plates. One of the most valued items, which might be distributed or ceremonially burned at the feast, was oolichan grease. The oolichan is a member of the smelt family; the fish is harvested in great quantities and pressed to remove its oil, which is valued as a preservative for other foods and as a condiment. The fish is so rich in oil that, after pressing and drying, it can be threaded with a wick and burned as a candle; thus the alternative name 'candlefish'. Oolichan oil was a principal item traded between coastal peoples and others of the interior of what is now British Columbia. The trade highways, called grease trails, over which trading partners carried oolichan grease, furs and other goods, were well known and well travelled. A particular grease trail, stretching more than 300 kilometres from the upper reaches of the Fraser River to villages of the Nuxalk (Bella Coola) on the Pacific coast, became a part of Canadian history with the publication of Alexander Mackenzie's diaries in 1801. Mackenzie was led by his Aboriginal guides across otherwise impassable mountains, along a grease trail marked by the travels of countless Aboriginal traders, though his debt to those who preceded him was not mentioned in his famous inscription on a rock face in Dean Channel commemorating his achievement in being the first European to cross the breadth of the continent.77

5. Inuit Innovation Inuit of the Canadian Arctic are a distinct people, different from other Aboriginal peoples in Canada by virtue of their origins and physical make-up, their language and their technology. For most of their history Inuit, like other Aboriginal peoples, have passed on knowledge to succeeding generations orally. The record of their culture is therefore told in their stories and legends and written in the archaeological remains of the places they have been.

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The archaeological record is pieced together from scattered sites where the remains of houses and communities, tools and other implements of daily activity, as well as the bones of the animals that served as food, provide a picture of life in past times. Remains of pollen, seeds and marine life map the advance and retreat of sea ice and vegetation and variations in climate. Oral history stretching beyond the reach of personal knowledge — "my grandfather's grandfather's time" — is less concerned with precise chronology than with recalling important events that have relevance for people today. Such an approach to the past seeks to explain why things are as they are, thus seeming to merge with a mythical past that is outside ordinary time and yet present today as part of the continuous cycle of death and rebirth. The archaeological record of the Arctic and oral accounts of Inuit support each other in affirming that Inuit inhabiting what is now Alaska, Canada and Greenland — who speak variations of the common language, Inuktitut — descend from a people who migrated from what is now Alaska to Canada and Greenland. These were the Thule people, whose arrival in Canada archaeologists date at approximately 1000 AD.78 However, the Thule did not arrive in an empty land, for there were already people living in these northern regions. These earlier people, called Dorset by archaeologists and Tunit by Inuit, were the descendants of an earlier migration, around 2500 BC, that also originated in Alaska or Siberia.79 Research on the languages and physical remains of circumpolar peoples shows that Inuit share racial and linguistic characteristics with the Aleuts of the islands lying off the Pacific coast of Alaska as well as with the peoples of northeastern Siberia. The exact times and paths of the various migrations are uncertain, although Inuit legends tell of the encounter between their most recent ancestors and the Tunit. The Tunit were said to be a gentle race, great hunters of seals, with whom Inuit lived for a time before quarrels erupted and they were driven away. The Tunit are thought to have occupied most of the present Inuit lands, from the coasts of Hudson Bay, through the central and high Arctic, to northern Greenland and Labrador and beyond that to Newfoundland. The distinguishing characteristic of historical Inuit culture is their way of life, which has enabled them to live year-round on the tundra, north of the tree line, in conditions demanding great resourcefulness, inner strength and quiet patience. Inuit oral tradition links these qualities with the requirements of survival in a harsh environment. Thus, Inuit used snow, animal skins, bone and stone, the elements indigenous to their environment, to fashion "a technology more complex than that of any other pre-industrial culture, which allowed not only an economically efficient but also a comfortable way of life throughout arctic North America".80 Given the extraordinary and characteristic adaptive powers of Inuit, the following brief sketch of Inuit culture focuses on technical adaptations before sustained European contact. The movement of Inuit and their ancestors across the northern landscape was propelled by changes in climate and technology that in retrospect seem quite dramatic. It is

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apparent that there have been successive periods of cooling and warming since 2500 BC, the date ascribed to the earliest sites of human occupation. The Dorset culture flourished between 500 BC and 1000 AD, when the climate was colder than today. Technology uncovered at Dorset sites includes harpoons adapted to hunting walrus and seals in open water, fishing gear, snow knives and ivory plates to protect the runners of sleds (suggestive of hunting on winter ice), and carved soapstone pots and lamps. Decorations on harpoons and other implements, carved wooden masks, and wood, ivory and bone miniatures of animals, birds and human figures suggest a well developed intellectual and ceremonial life, the nature of which is still a mystery. Rectangular winter houses, large enough to accommodate two to four families, had a central cooking area flanked by sleeping platforms. They were constructed of sod and stone, dug partially into the ground and probably covered with skins. The eastward movement of the Thule coincided with a marked warm period between 900 and 1200 AD. The normal climate at that time was similar to the rare warm seasons experienced now, and the boundary of the northern forest was 100 kilometres north of its present location. Sea ice was certainly less prevalent across the high Arctic. Archaeologists associate the rapid expansion of the Thule culture across the Arctic to Greenland with the accessibility of large whales, which were important to their economy and for which their hunting technology had been adapted in Alaska. The development of skin floats attached to harpoons made tracking and retrieval of whales during the hunt more efficient. Skin boats — umiaks eight to 10 metres long and kayaks, which accommodate one person — made their appearance in this period. People of the Thule culture harvested whale, seal, and walrus from the sea and caribou and musk-ox from the land, and they supplemented this diet with waterfowl and fish. They manufactured clothing, houses and implements from the materials at hand, using skills resident in every family. Houses were a variation on those found in Alaska, built of stones and whale bone rather than logs: A Thule winter house is usually an irregular oval in outline, measuring roughly five metres from side to side. At the front is an entrance tunnel built of stone slabs or boulders, and usually sloping downwards to form a cold-trap that prevents cold air from entering the house. The interior of the house is divided into two sections. In the front is a floor area paved with flagstones and with one or two cooking areas in the corners. At the back, raised about 20 centimetres above the floor, is a flagstone platform on which the family members slept side by side, with their feet toward the back wall. Storage lockers are located beneath the sleeping platform, which is covered with a springy mattress made of baleen cut into strips and tied together in loops.... The roof of the house is domeshaped, held up by rafters of whale jaws and ribs set in the stones of the outer wall and tied together at the top. This frame was covered with skins, then with a thick layer of turf and moss, and, finally, probably thickly banked with snow. Such a house must have been almost perfectly insulated and probably required a ventilation hole in the roof. The house was heated with blubber lamps.81

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Food and fuel were stored during summer months in caches surrounding winter village sites. The villages typically contained several houses, accommodating perhaps 50 people in all. Hints of the sociability enjoyed in Thule households are found in the etchings on implements, decorations on the women's combs and needle cases, and small carved birds or bird-women figures used in hand games. Toy bows, toy cooking pots, wooden dolls and spinning-tops made from the discs of whale vertebrae are found in all Thule village sites, indicating the attention that must have been given to the care of children. Technology for harvesting the seals that appeared at breathing holes in the sea ice, together with snow probes and snow knives, which are found often at Thule sites, suggest that hunting on the sea ice was practised in late winter, when periods of daylight lengthened in the high Arctic. Summer hunting involved building fish weirs for trapping and spearing fish and drive fences of piled stones to direct caribou herds to water crossings, where animals could be speared from kayaks. Varied traps were built to catch fox and bear. Thule inventions have been found from Alaska to Greenland. Thus travel, whether by sled or boat, and exchange of technology seem to have been both frequent and relatively easy, indicating the existence of a loose but widespread link among Thule communities. During the warm period when the Thule people were extending their communities eastward across the Arctic, the Norse were moving westward and establishing colonies in Greenland. Inuit and Norse stories seem to agree that the two peoples came into contact and conflict, perhaps as a result of the Thule moving southward. Other evidence of intercultural contact is found in iron artifacts at Thule sites, some of which are thought to be products of trade with the Norse of Greenland. Inuit Snow Houses Snow houses were in use by Inuit at the time of earliest recorded contact, but their emergence as a feature of Inuit life cannot be dated because melted snow houses leave no remains to be excavated. Construction of a snow house requires intimate knowledge of the properties of snow, appropriate tools for preparing the building blocks, and skill in engineering. Edmund Carpenter, an ethnographer of Inuit culture, describes the construction as a personal, even spiritual experience as well as a feat of technology: An Eskimo* doesn't mould his igloo from the outside looking in, but from the inside looking out. Working from the centre, he builds a series of concentric circles, tapering upward conically. When the keystone at the apex has been set in place, Eskimo and structure are one. Only then does he cut the small hole at the base through which he crawls — in effect, doffing his igloo.** A snow house can be constructed by an accomplished builder in a few hours with readily available materials. It offers the minimum resistance to Arctic winds. Snow has insulating qualities, making the dwelling warmer than a tent and equally suited to 79

the lifestyle of a mobile people. The invention of the stone lamp to burn the blubber of sea mammals was essential to provide light and a small amount of heat in fully enclosed snow houses. Snow houses in turn made it possible for people to live on the sea ice and harvest seals during the winter, thereby opening large areas of the central Arctic to human habitation in harsh climatic conditions.*** * 'Eskimo' is no longer used because of its origin as a non-Inuit term with negative connotations. The word 'Inuit' means 'the people' (singular, Inuk) and is the term by which Inuit refer to themselves. (Pauktuutit, The Inuit Way: A Guide to Inuit Culture [Ottawa: Pauktuutit and National Library, 1990], p. 4.) ** Carpenter, Eskimo Realities (cited in note 83), p. 24. *** Ernest S. Burch Jr., "The Eskaleuts — A Regional Overview" and "The Caribou Inuit", in Native Peoples: The Canadian Experience (cited in note 43), p. 112; McGhee, Canadian Arctic Prehistory (cited in note 79), p. 43.

When Europeans began to have contact with Inuit in the eighteenth and nineteenth centuries the commonalities of Thule culture had given way to regional variations that are now explained as adaptations to a 'little ice age' that began to set in around 1200 AD. The tree line receded southward by a hundred kilometres. The re-establishment of sea ice in the high Arctic made settlement there less feasible. In some regions the economy based on whaling was replaced in the harsher winter seasons by dependence on ice-loving marine mammals, especially the small ringed seals that made breathing holes in the sea ice. Communities became smaller and more mobile than they had been earlier, and technology adapted to different harvesting conditions — either devised anew or reminiscent of Dorset innovations — assumed greater prominence. The snow house or igloo, clothing made of caribou, seal, and other animal skins, and the kayak are elements of technology used widely by Inuit in the early years of European contact. The making of snow houses and clothing are described in the accompanying boxes. The kayak, engineered of driftwood and animal skins, was ideally suited to marine hunting and has been adopted virtually without change in design for modern international sporting competition. These familiar expressions of inventiveness have taken on great significance as symbols of Inuit adaptability. Inuit of different regions clearly share many characteristics rooted in their common ancestry. Variations in culture apparently derive from adaptations to local conditions, whether created by changing climate or intercultural contact. Inuit oral history has received little attention in reconstructing the story of the Inuit past, with the result that written reports are erratic in coverage and rely heavily on archaeological finds and on European or southern Canadian perspectives more generally. A publication of the Canadian Museum of Civilization suggests that distinct Inuit culture groups can be identified with nine regions: Labrador, Arctic Quebec, Southern Baffin Island, Northern Baffin Island and Foxe Basin, Southampton Island, Western Hudson Bay and the Barren Grounds, Central Arctic Coast, Mackenzie Delta, and the High Arctic.82 These regions are represented on the accompanying map (Figure 4.1). The 80

culture of each of these groups has been shaped by the land and its particular historical experience. The Labrador Inuit have had the longest sustained contact with European whalers and traders and, from the 1770s, Moravian missionaries. Little is known of the pre-contact culture of Inuit of northern Quebec. Inuit of the high Arctic had disappeared by the time of European contact, possibly starved out or forced to move to open-water areas in northern Greenland. Inuit of southern Baffin Island maintained their traditional way of life until the mid-1800s when European whalers and traders arrived and introduced rapid change. People of the Igloolik area in northern Baffin Island abandoned whaling culture and permanent winter houses for snowhouse villages on the sea ice and dependence on walrus, fish and caribou. They remained independent of European trade until the late 1800s.

Inuit Clothing Inuit women used caribou and seal skins in particular for the manufacture of clothing suited to the rigorous demands of the Arctic climate. Caribou hide was preferred for parkas and leggings. The skin, when worked, was light and soft and had dense, upright hairs, which provided ideal insulation against extreme cold. The seal skin is water repellant and was used for boots, which had to be waterproof, especially in the wet summer season. The transformation of animal skins into clothing is a complex process; simply skinning an animal and using its hide as protection from the cold produces an object that, on drying, becomes as stiff as a board and has less insulation.... The skin must be processed chemically...cleaned, dried, smoked and

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softened to produce a fur or leather from which clothing can be cut... [Arctic Inuit] brought with them [to the New World] patterns of tailored clothing that were developed in Asia during the previous few thousand years. These patterns are similar to those brought to Europe...from the Asiatic steppes about 5,000 years ago... Working with stone knives, bone needles and sinew thread, Inuit women made clothing that is still considered by many Arctic travellers to be finer than any produced by the weaving mills or the chemical factories of the south... Source: Robert McGhee, Ancient Canada (Hull: Canadian Museum of Civilization, 1989), pp. 70-71

.The Sadlermiut of Southampton, said to have spoken a strange dialect, were wiped out by disease in 1900. Their rich hunting grounds were occupied by Inuit of the northwestern coast of Hudson Bay. By the 1800s, Inuit of the Barren Grounds inland from the west coast of Hudson Bay had adopted a way of life based almost entirely on harvesting fish and caribou. They seldom, if ever, visited the coast to practise the marine culture of their ancestors. Occupancy of this territory had shifted over the centuries between ancestral Inuit and Dene, with Inuit moving south in colder periods and Dene moving onto the barren grounds in pursuit of rich caribou herds in summer and retreating to the forests in winter. As the tree line moved north or receded, so did the boundary between Dene and Inuit territory. Copper Inuit and Netsilik of the Central Arctic Coast split their year between the interior, where small bands fished and hunted caribou and musk oxen, and the coast where they gathered in groups of up to a hundred, building snow house villages on the sea ice, where they depended on seals harpooned at breathing holes. Copper Inuit and Netsilik worked copper and soapstone found in their region to make tools, lamps and pots that they traded as far west as northern Alaska. Inuit of the Mackenzie Delta in the western Arctic were separated from their more easterly relations by a stretch of abandoned coast along the southern shore of the Beaufort Sea. They resembled Alaskans in their way of life, spending their winters in large winter houses made of driftwood, and hunting beluga whales in summer. Excavations at the village of Kittigazuit in the Mackenzie Delta indicate that up to a thousand people lived there, participating in a whaling economy that persisted for at least 500 years. The rich variety of adaptations displayed in these regional cultures supports the assessment of contemporary Inuit that, as a people, they have always been resourceful and inventive. The adaptation of carving to the demands of the modern market place is a contemporary expression of sensibility and skill honed with long practice. Everyone in traditional Inuit society was expected to acquire the skills that turned the raw materials of the environment into implements for survival. Going beyond that practical obligation, Inuit turned their hands and imaginations to creating graceful and symbolic objects that established a connection between the human spirit and the spirits that lived in the elements of their environment.

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In the twentieth century ethnographers and art collectors have captured and recorded glimpses of the spirit that infused traditional Inuit culture. Edmund Carpenter, writing in 1973, spoke in the following terms of the Aivilimiuk Inuk who taught him much about Inuit art and philosophy: Ohnainewk held a baby walrus tooth in his palm, turned it slightly, and there, unmistakably! Ptarmigan almost burst through the surface. As he cut lightly here, indented there, he spoke softly, diffidently; he was not passive, yet his act of will was limited, respectful: respectful to the form that was given.83 Knud Rasmussen, a Danish ethnographer who assembled extensive accounts of Inuit life in the early part of this century, recorded and translated the poetry of Iglulingmiut, from which we quote two examples. The Great Sea Has set me adrift, It moves me as the weed in a great river, Earth and the great weather Move me, Have carried me away And move my inward parts with joy. ... I will walk with leg muscles which are strong as the sinews of the shins of the little caribou calf. I will walk with leg muscles which are strong as the sinews of the shins of the little hare. I will take care not to go towards the dark. I will go towards the day.84 Love of the land and the will to face the challenges of an arduous life with optimism, as expressed in these poems, are aspects of culture that the Inuit continue to maintain and value.

6. Conclusion The preceding accounts were chosen in part on the basis of the geographic regions in which the Aboriginal nations described are found. As the accounts illustrate, diversity marked Aboriginal cultures and forms of social organization in the pre-contact period. Some Aboriginal nations were able to accumulate wealth while others were not; some were more hierarchical than others; some had matrilineal rules of descent while others were patrilineal or bilateral; and some developed sophisticated confederal structures that grouped several nations together. That these patterns should vary by geographic region is not, of course, accidental, since the physical environment played a significant role in influencing culture and social organization.

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Although these social, cultural and political differences are substantial, the accounts also suggest patterns that are shared by many, if not all, Aboriginal nations. These similarities begin with understandings of a people's origins, with emphasis on the act of creation. In these accounts, as we have seen, people are placed on the earth by the Creator along with, and in an equal relationship to, other natural elements that have also been endowed with the spark of life and that are therefore worthy of respect. In the Mi'kmaq creation stories, for example, human beings develop from the natural world (a leaf, the foam of an ocean wave, the spark of a fire) and derive much of their knowledge as well as their subsistence from it. Unlike most non-Aboriginal humancentred philosophies, Aboriginal belief systems are cosmocentric, emphasizing the whole of the cosmos, in which human beings are but a small part. They hold that many parts of nature have souls or spirits. Hence there is a reverence for the natural order and a sense of wonder before natural phenomena such as the spark of fire, the sun in Blackfoot cosmology, or the great sea of the Inuit poem. The accounts often reveal elaborate social structures built around the nuclear and extended family. These are grouped into a band, clan, district or community all of which, in turn, may be part of a larger nation that may itself belong to a confederacy of many nations and to a larger language group. Governance is usually decentralized, with local units coming together or sending representatives to the councils of the nation or confederacy. In the councils of decision making, individuals are generally equal, and deliberations typically continue until consensus is reached. Leaders thus tend to guide, counsel and speak on behalf of the people; they typically do not exercise the authority to make unilateral decisions or to impose their will. Where conflict arises, an effort is made to bring the contending parties together and to find a middle ground. This is in keeping with an ethic that respects diversity and acknowledges that there are many different ways to accomplish a particular objective. The accounts also reveal the ultimate importance to Aboriginal societies of their spiritual relationship to the land. This arises not only because of dependence on the natural world for life itself, but also out of the belief that human beings were placed on the earth at Creation and given special responsibilities to serve as stewards of the natural environment. Through a very long history of living in close harmony with the environment, adjusting as required to changing social and environmental conditions, Aboriginal peoples accumulated an enormous amount of knowledge and wisdom and passed it on orally from generation to generation. Across the ocean, the various peoples of Europe also showed themselves to be as diverse as Aboriginal peoples. Their cultures and social structures developed along entirely different lines, however — a story far more familiar to most Canadians than that of Aboriginal peoples. Between 900 and 1400 AD, much of Europe had evolved into highly stratified societies involving a rigid, hereditary social class structure. Monarchs were at the apex of the hierarchy, but a powerful nobility existed as well. They were in charge of vast estates

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requiring large numbers of serfs to contribute their labour or taxes in exchange for tenure on a small plot of land and military protection. By 1400, however, the feudal system was clearly in transition: Throughout Western Europe, in the early "modern" age, roughly from 1400 to 1600, societies were in transition from a social order characterized by agricultural selfsufficiency and rigid hierarchies to a new order in which trade and impersonal marketbased relationships were becoming increasingly important. Although the traditional landowning elite persisted, in cities and towns new leaders emerged whose wealth came from organizing the trade that linked far-flung territories. This new elite was allied with increasingly powerful monarchs whose attempts to constrain the nobles led to the emergence of nation-states, wherein government bureaucracies rather than individual landlords made the rules that ordinary people were forced to obey. Within the cities, too, lived the intellectuals, whose growing curiosity about how the universe worked led them away from the teachings of the church and toward lines of inquiry that produced both the knowledge and some of the incentive to search for undiscovered lands. In this age of transition Europe was a complex continent. Not only did incredible opulence sit side by side with grinding poverty, but religious devotion also co-existed with greed and bloody warfare; humanist interest in scientific advance and new forms of artistic and architectural expression co-existed with religious and racial bigotry; and a willingness to accept female monarchs co-existed with the profound oppression of women in society at large. These contradictory tendencies existed as much within European states as between them.85 The monarchs of the major European countries were becoming increasingly powerful during this time, forging alliances with traders and intellectuals in urban areas while becoming increasingly ascendant over the nobles and their fiefdoms in the countryside. The formation of standing armies under royal control, a council of ministers responsible to the monarch rather than to the lords, centralized bureaucracies to implement royal decrees and courts to enforce them — these were all important features of the new political order. One of the early accomplishments was to facilitate the expansion of trade, both internally by overcoming the local taxation and extortion regimes of nobles and princes, and externally by countering marauders on the high seas. Taken together, these changes set the stage for European expansion overseas: The decay of the old feudal order and its replacement by a social order characterized by centralized and competing monarchical states, increasing emphasis on trade, and growing intellectual curiosity made Europe the likely candidate for overseas expansion. Population pressures provided monarchs with an incentive to search for new resources and later to support the founding of colonies. The trade-oriented capitalists of the rising cities provided encouragement and finance for such ventures. Finally, the Renaissance intellectuals provided both the theoretical speculations and the technological advances

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that made the search for new areas of the globe appear possible and desirable. In sum, the interests of nation-building trade, and science conspired to create an "age of discovery."86 Of course, European expansion into Africa, Asia and the Americas was not unprecedented, for at the same time other far-flung empires dominated by Turks, Hindus, Muslims, Islamics and Chinese existed. For Europe, too, colonial ventures were wellestablished features of European society several centuries before the first recorded transAtlantic voyages of 'discovery' to the 'new world' at the end of the fifteenth century. Trading posts, usually in the form of tiny enclaves inside Muslim cities, had been established during the Crusades and were thriving by the time of Columbus's first voyage in 1492. The Portuguese had also been settling colonies of merchants in West Africa and the Coromandel Coast of western India.87 The motivations of the early European explorers and settlers are, according to one source, "difficult to know and impossible to generalize. In most cases one thing led to another, and initial intentions changed according to new circumstances".88 Portugal's expansion into northwestern and western Africa was driven initially by the crusade against Islam but was then attracted by the profits to be made from the discovery of gold dust, ivory and slaves. By the time Portuguese explorers found an ocean route to the Indies via the Cape of Good Hope, the prospect of acquiring a direct trade route for eastern spices and manufactured goods — thereby countering the Venetian overland trade — became the dominant motive. Similarly with Spain in the Americas, the original motivation for Columbus's voyage was to sail west in search of a northwest passage to India. Once silver and other precious metals were found, however, and it became clear that large haciendas and plantations could be established with forced indigenous and imported labour, economic considerations became increasingly important. It is significant that Spain and Portugal were at the forefront of the first western European expeditions to the Americas. Having just completed a centuries-long struggle to free themselves from the Moors, the people of Spain and Portugal were driven by nationalism and religious fervour to a far greater extent than other European nation-states with less tragic recent histories. Without the Moors as opponents, the discovery of the New World seemed to offer Spain an outlet for adventure and aggression, while the ease of subsequent Spanish conquests indicated, to the Europeans, the superiority of their civilization and religion.89 The 1493 division of the New World between Spain and Portugal by the Pope was ostensibly to secure Christian conversion, but in fact, the papal donation justified in Spanish minds their acquisition of the lands and resources of the peoples found in Central and South America. Thus, for a generation they simply extracted gold, silver and slaves from the indigenous Americans — another infidel people not unlike the Moors in their estimation — using military compulsion, often with gruesome results. The twin notions of peaceful trade under treaties and the assimilation of the Indios into Spanish society

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found their way into official Spanish policy only in the 1550s. They were still poorly realized ideals two centuries later. The earliest Basque, Breton, French and English contacts in North America were aimed initially at extracting fish and other resources from the sea, rather than gold or silver from the ground, and involved considerably less use of force. This early pattern of relatively peaceful and incidental contact gave way by the early seventeenth century to a new system of relations based on treaties and trade with the indigenous inhabitants. In the next chapter, we describe the essential characteristics of this early, often co-operative, relationship.

Notes: 1 Calder v. Attorney-General of British Columbia, [1973] Supreme Court Reports (hereafter S.C.R.) 313 at 328 per Judson J. 2 Robert Gray, “A Good Speed to Virginia”, quoted by H.C. Porter, The Inconstant Savage: England and the North American Indian 1500-1600 (London: Duckworth, 1979), p. 357. 3 St. Catharines Milling and Lumber Company v. the Queen (1887), 13 S.C.R. 577 at 596-597. 4 Locke adds the criterion that “there is enough, and as good left in common for others”. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1970), II, p. 27. 5 James Tully, “Aboriginal Property and Western Theory: Recovering a Middle Ground”, in Property Rights, ed. Ellen Frankel Paul, Fred D. Miller, Jr. and Geoffrey Paul (Cambridge: Cambridge University Press, 1995), p. 159. 6 This decision was the third and most important of the cases referred to as the Marshall Trilogy after the U.S. Supreme Court chief justice under whose leadership they were handed down. In Johnson v. M’Intosh, 21 U.S. (8 Wheaton) 543 (1823), the doctrine of Indian title — later adopted in Canada almost in its entirety — was articulated. In Cherokee

Nation v. Georgia, 30 U.S. (5 Peters) 1 (1831), the phrase “domestic dependent nations” was first coined to describe the self-governing status of Indian tribes within the borders of the United States. In Worcester, aside from debunking the discovery doctrine, Chief Justice Marshall fleshed out his vision of tribal self-government in a more complete and concrete way. A leading text describes that vision as postulating “largely autonomous tribal governments subject to an overriding federal authority but essentially free of state control.” See Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy (New Haven: Yale University Press, 1987), p. 24. The Worcester decision is still an important case. Since 1970, state and federal courts in the United States have cited it more than any other

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case, with the exception of three seminal non-Indian constitutional decisions from the same Marshall court (Wilkinson, p. 159, note 126). 7 31 U.S. (6 Peters) 515 at 542-543. 8 Wampum was made traditionally of quahog (clam) shells, drilled and threaded into strings or woven into belts. Wampum of various colours carried different symbolic meanings. Wampum strings and belts were used as aids to memory and to validate the authority of persons carrying messages between communities and nations. 9 Contemporary place names are used throughout for ease of identification. 10 The Iroquoians on the St. Lawrence had been replaced by Algonquins by the time of Samuel de Champlain’s explorations in 1603. 11 Marianne Mithun, “The Proto-Iroquoians: Cultural Reconstruction from Lexical Materials”, in Extending the Rafters: Interdisciplinary Approaches to Iroquoian Studies, ed. Michael K. Foster, Jack Campisi and Marianne Mithun (Albany, N.Y.: State University of New York Press, 1984), p. 264. 12 Details of Iroquois society are drawn from Lewis Henry Morgan, League of the Iroquois (Secaucus, N.J.: The Citadel Press, 1962), book II, chapter VI, pp. 313-320 and following. 13 Other dates are sometimes cited for the Tuscarora adoption; 1715 is the date given in Morgan, League of the Iroquois, p. 24. 14 William N. Fenton, “Structure, Continuity, and Change in the Process of Iroquois Treaty Making”, in The History and Culture of Iroquois Diplomacy: An Interdisciplinary Guide to the Treaties of the Six Nations and Their League, ed. Francis Jennings, William N. Fenton, Mary A. Druke and David R. Miller (Syracuse, N.Y: Syracuse University Press, 1985), p. 7. 15 For a discussion of the role of another Iroquoian nation, the Wendat (Huron) in the fur trade, see Chapter 5. 16 See Paul Williams and Curtis Nelson, “Kaswentha”, research study prepared for the Royal Commission on Aboriginal Peoples [RCAP] (1995), for a discussion of treaties between the Haudenosaunee and colonial powers. For information about research studies prepared for RCAP, see A Note About Sources at the beginning of this volume. 17 In 1987, the U.S. Senate passed a resolution acknowledging the influence of the Haudenosaunee system of government on U.S. constitutional development, but the extent of that influence is debated. See Elizabeth Tooker, “The United States Constitution and the Iroquois League”, Ethnohistory 35/4 (Fall 1988), pp. 305-336; Donald A. Grinde, Jr., The Iroquois and the Founding of the American Nation (San Francisco: The Indian Historian Press, 1977); and Bruce E. Johansen, Forgotten Founders: How the American Indian Helped Shape Democracy (Boston: The Harvard Common Press, 1982). 18 See Marianne Mithun, “The Proto-Iroquoians: Cultural Reconstruction from Lexical Materials”, and James V. Wright, “The Cultural Continuity of the Northern Iroquoian-Speaking Peoples”, in Extending the Rafters (cited in note 11). 19 Dean R. Snow, “Iroquois Prehistory”, in Extending the Rafters (cited in note 11).

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20 Snow, “Iroquois Prehistory”, p. 256. 21 From 25 June to 6 July 1994, Chief Jacob Thomas gave a public recital of the Great Law of Peace, the foundation of Haudenosaunee law and government. Spoken in English, the recital took place at the Six Nations Territory near Brantford, Ontario, over a 12-day period. It was recorded on videotape, a copy of which is in the archives of the Royal Commission. Access to the videotape can be obtained through the National Archives of Canada. 22 Transcripts of the Commission’s hearings are cited with the speaker’s name and affiliation, if any, and the location and date of the hearing. See A Note About Sources at the beginning of this volume for information about transcripts and other Commission publications. 23 According to tradition, the birthplace of the Peacemaker was the present location of the Tyendinaga Territory on the Bay of Quinte, a place selected by Joseph Brant for resettlement of Mohawks who were allies of the British during the American War of Independence. 24 The name Deganawidah is used throughout some accounts of the founding of the Iroquois Confederacy. The Haudenosaunee themselves use his name only in ceremonies. In deference to this convention, we use the preferred title, the Peacemaker, in this account. 25 Under the articles of the Great Law, anyone speaking while holding wampum was under the strictest obligation to speak the truth. See Michael K. Foster, “Another Look at the Function of Wampum in Iroquois-White Councils”, in The History and Culture of Iroquois Diplomacy (cited in note 14). 26 The Iroquois words evidently do not have exact equivalents in English. “Righteousness, Health and Power” are found in Paul A.W. Wallace, White Roots of Peace (Santa Fe, New Mexico: Clear Light Publishers, 1994), pp. 39-40, a publication endorsed by prominent chiefs of the Haudenosaunee. Arthur C. Parker refers to “the Good News of Peace and Power” in Parker on the Iroquois, ed. William N. Fenton (Syracuse: Syracuse University Press, 1968), Book III: The Constitution of the Five Nations, p. 72. Jake Thomas, introduced earlier in this chapter, translated the principles as “Peace, Power and Righteousness” in his testimony before the Commission at Akwesasne on 3 May 1993. 27 Wallace, White Roots of Peace, p. 39-40. 28 Parker on the Iroquois (cited in note 26), Book III, p. 9. 29 Parker on the Iroquois, p. 9. 30 Consensus meant that all the council agreed to support the decision taken. It did not necessarily mean that all nations were unanimous in their opinion. Rather, for the good of the community, members would refrain from pressing dissenting views, knowing that in future councils their commitment to the common good would win respect and deference to their opinions. 31 John A. Noon, Law and Government of the Grand River Iroquois (New York: Viking Fund Publications in Anthropology, Number 12, 1949), p. 39, as quoted in Thomas S. Abler, “The Kansas Connection: The Seneca Nation and the Iroquois Confederacy Council”, in Extending the Rafters (cited in note 11), p. 83. 32 The ceremony for installing chiefs is called a condolence because the death of the chief who has vacated the position must be properly acknowledged. Members of his nation, clan and family

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who are grieving must be comforted and restored to a good mind through the ministrations of the members of the ‘clear-minded’ side of the council — those who have not suffered the same loss. Only when this has been accomplished are the mourners urged to look up and see that the sun still shines, there is work to be done, and the candidate for chief is standing by, ready to take the place that has been left vacant. 33 Fenton, “Structure, Continuity, and Change” (cited in note 14), p. 13. 34 Parker on the Iroquois (cited in note 26), Book III, p. 37. 35 Morgan, League of the Iroquois (cited in note 12), p. 81, is not definite about whether the clan system predated the founding of the Great Law. Chief Jake Thomas was clear on this point: “We talk about the clan system. That’s where it originated, from the time of the Creation.” (Akwesasne, 3 May 1993). 36 Wallace, White Roots of Peace (cited in note 26), p. 72. 37 Fenton, “Culture, Continuity, and Change” (cited in note 14), p. 12. 38 See Fred Voget, “Anthropological Theory and Iroquois Ethnography: 1850 to 1970”, in Extending the Rafters (cited in note 11), p. 350; and Morgan, League of the Iroquois (cited in note 12), pp. 330-334. 39 Chief Leon Shenandoah, Tadodaho [Atotarho], “Foreword”, in Wallace, White Roots of Peace (cited in note 26), pp. 13-14. 40 Fred W. Voget: “Anthropological Theory and Iroquois Ethnography: 1850 to 1970” in Foster et al., Extending the Rafters (cited in note 11), p. 347. 41 William N. Fenton, “Foreword”, in Morgan, League of the Iroquois (cited in note 12), p. xvi. 42 Fenton, “Structure, Continuity, and Change” (cited in note 14), p. 6. 43 William E. Farr, The Reservation Blackfeet, 1882-1945: A Photographic History of Cultural Survival (Seattle: University of Washington Press, 1984), p. 4. The term Blackfeet is common in the United States, but in Canada the preferred usage is Blackfoot. See Hugh A. Dempsey, “The Blackfoot Indians”, in Native Peoples: The Canadian Experience, ed. R. Bruce Morrison and C. Roderick Wilson (Toronto: McClelland and Stewart Limited, 1986). 44 John C. Ewers, The Horse in Blackfoot Indian Culture, Bureau of American Ethnology Bulletin 159 (Washington: Smithsonian Institution, 1955), pp. 2-19, traces the introduction of the horse to the northern plains. Horses were introduced to Mexico by the Spanish in the middle of the sixteenth century and spread gradually from one indigenous nation to another. 45 E.A. Corbett, Blackfoot Trails (Toronto: The Macmillan Company of Canada Limited, 1934), p. 4. 46 The concept of interrelatedness is discussed in Leroy Little Bear, “The Relationship of Aboriginal People to the Land and the Aboriginal Perspective on Aboriginal Title”, research study prepared for RCAP (1993).

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47 George Bird Grinnell, Blackfoot Lodge Tales (published originally in 1892; reprinted, Williamstown, Massachusetts: Corner House Publishers, 1972), pp. 143-144 [footnote omitted]. 48 Little Bear, “The Relationship of Aboriginal People to the Land” (cited in note 46). 49 Little Bear, “The Relationship of Aboriginal People to the Land”. 50 Mike Mountain Horse, My People the Bloods, ed. Hugh A. Dempsey (Calgary and Standoff, Alberta: Glenbow-Alberta Institute and Blood Tribal Council, 1979), p. 53. 51 Andrew Bear Robe, “The Historical, Legal and Current Basis for Siksika Nation Governance, Including its Future Possibilities Within Canada”, research study prepared for RCAP (1994). 52 Nomadic means wandering or roaming, which is misleading, since plains people systematically harvested the land in cycles and moved from site to site, from season to season, to harvest but also to conserve natural resources. Perhaps a more appropriate word might be ‘mobile’, since their homes and material goods were completely portable. 53 In later attempts to domesticate the plains buffalo when it was almost extinct, those that were rounded up and placed in captivity died. The opinion was expressed at the time that the buffalo, unused to captivity, died of a broken spirit. The wood buffalo, on the other hand, fared much better in captivity. 54 Little Bear, “The Relationship of Aboriginal People to the Land” (cited in note 46). 55 The words of an old plains Indian of the Omaha Nation lamenting the life he and his people had once known along the western banks of the Missouri, in what is now Nebraska. Peter Nabokov, ed., Native American Testimony: A Chronicle of Indian-White Relations from Prophecy to the Present, 1492-1992 (New York: Viking Penguin, 1991), p. 184. 56 Beatrice Medicine, “‘Warrior Women’: Sex Role Alternatives for Plains Indian Women”, in The Hidden Half: Studies of Plains Indian Women, ed. Patricia Albers and Beatrice Medicine (Lanham, Maryland: University Press of America, 1983), pp. 267-280. 57 Symmes C. Oliver, Ecology and Cultural Continuity as Contributing Factors in the Social Organization of the Plains indians (Berkeley: University of California Press, 1962), p. 62. 58 Bear Robe, “The Historical, Legal and Current Basis for Siksika Nation Governance” (cited in note 51). 59 This material draws on information in Bear Robe, “The Historical, Legal and Current Basis for Siksika Nation Governance”. 60 Contrary to some accounts, gifts were not for dowry purposes, but rather signified the establishment of a new and permanent relationship between families. 61 Bear Robe, “The Historical, Legal and Current Basis for Siksika Nation Governance” (cited in note 51). However, a person who took his punishment well usually had his property replaced. 62 Oliver, Ecology and Cultural Continuity (cited in note 57), p. 62.

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63 John C. Ewers, The Blackfeet: Raiders on the Northwestern Plains (Norman: University of Oklahoma Press, 1958), p. 97. 64 Marie Smallface Marule, “Traditional Indian Government: Of the People, by the People, for the People”, in Pathways to Self-Determination, Canadian Indians and the Canadian State, ed. Leroy Little Bear, Menno Boldt and J. Anthony Long (Toronto: University of Toronto Press, 1984), pp. 36-37. 65 Bear Robe, “The Historical, Legal and Current Basis for Siksika Nation Governance” (cited in note 51). 66 Dempsey, “The Blackfoot Indians” (cited in note 43), p. 388. 67 Oliver, Ecology and Cultural Continuity (cited in note 57), pp. 58-59. 68 David Thompson was a British Hudson’s Bay Company trader who arrived in Blackfoot territory in 1787 and lived near the Blackfoot for many years. See Bear Robe, “The Historical, Legal and Current Basis for Siksika Nation Governance” (cited in note 51). 69 Corbett, Blackfoot Trails (cited in note 45), pp. 6-7. 70 In 1867 an historic peace was made between the Cree and Blackfoot at Peace Hills, near Wetaskiwin on the Battle River. Hostilities broke open again when the Cree made incursions into Blackfoot lands and continued until Crowfoot and Poundmaker were able to make peace again in the 1870s. 71 The Great Plains extended south to Texas and northeast and northwest to northern Saskatchewan. The number of Great Plains Indians was estimated at 200,000 around 1800, with the Blackfoot Confederacy numbering 30,000. See Bear Robe, “The Historical, Legal and Current Basis for Siksika Nation Governance” (cited in note 51). 72 Olive P. Dickason, Canada’s First Nations: A History of Founding Peoples from Earliest Times (Toronto: McClelland and Stewart, 1992), p. 63. 73 Philip Drucker, Indians of the Northwest Coast, Anthropological Handbook Number Ten (New York: McGraw-Hill Book Company, Inc., for the American Museum of Natural History, 1955), pp. 3-4. 74 Robert McGhee, Ancient Canada (Ottawa: Canadian Museum of Civilization, 1989), p. 132; Peter Macnair, “From Kwakiutl to Kwakwa ka’wakw”, in Native Peoples: The Canadian Experience (cited in note 43), p. 502. 75 McGhee, Ancient Canada, p. 128. 76 Margaret Seguin, “Lest There Be No Salmon: Symbols in Traditional Tsimshian Potlatch”, in The Tsimshian, Images of the Past: Views for the Present, ed. Margaret Seguin (Vancouver: University of British Columbia Press, 1984). 77 In the 1970s there was extended discussion between Parks Canada, the British Columbia government and communities represented by the Union of British Columbia Indian Chiefs regarding the designation of the Alexander Mackenzie Grease Trail as a conservation and recreational corridor. First Nations communities located in or near the proposed corridor were interested in having acknowledgement of the contribution of their forebears to mapping of the

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continent. They were equally interested in protecting the terrain from uncontrolled incursions by logging and development companies. The Alexander Mackenzie Heritage Trail, which includes the grease trails, was designated in 1987 as a heritage trail under the Heritage Conservation Act and as a designated forest recreation trail under the Forest Act. Consideration is being given to expanding the official name of the trail to incorporate the concept of the grease trail. B.C. Ministry of Forests, Ministry of Tourism and Ministry Responsible for Culture, Alexander Mackenzie Heritage Trail: Management Plan for Trail Portions on Public Forest Lands, Appendix 1, “Memorandum of Agreement” (9 June 1987, published June 1993). 78 The Thule people are named after a Greenland site where the archaeological remains of a Thule camp were first excavated. 79 Robert McGhee, Canadian Arctic Prehistory (Ottawa: Canadian Museum of Civilization, 1990), p. 22. Much of the general information in the next few pages is drawn from this work. 80 McGhee, Canadian Arctic Prehistory, p. 79. 81 McGhee, Canadian Arctic Prehistory, p. 95. 82 McGhee, Canadian Arctic Prehistory, pp. 105-106. 83 Edmund Carpenter, Eskimo Realities (New York: Holt Rinehart and Winston, 1973), p. 61. 84 Knud Rasmussen, “Intellectual Culture of the Iglulik Eskimos”, in Report of the Fifth Thule Expedition, 1921-24 VII/1 (1929, reprinted by AMS Press Inc., 1976), pp. 123, 166. 85 Margaret Conrad, Alvin Finkel and Cornelius Jaenen, History of the Canadian Peoples: Beginnings to 1867, volume 1 (Toronto: Copp Clark Pitman Ltd., 1993), p. 49. 86 Conrad, Finkel and Jaenen, History of the Canadian Peoples, p. 76. 87 D.K. Fieldhouse, The Colonial Empires: A Comparative Survey from the Eighteenth Century (London: Weidenfeld and Nicolson, 1966), p. 3. 88 Fieldhouse, The Colonial Empires, p. 5. 89 Thomas R. Berger, A Long and Terrible Shadow: White Values, Native Rights in the Americas, 1492-1992 (Toronto/Vancouver: Douglas & McIntyre, 1991), pp. 2, 13.

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Volume 1 - Looking Forward Looking Back PART ONE The Relationship in Historical Perspective

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Stage Two: Contact and Co-operation of separate social, cultural and political evolution, Aboriginal and non-Aboriginal societies entered into a period of sustained and intense interaction that was to have profound and long-lasting effects on both. Although a few Aboriginal persons were, willingly or unwillingly, taken to Europe over the years, contact occurred almost exclusively on North American soil as transplanted Europeans began to arrive in ever-increasing numbers after the late 1400s. FOLLOWING CENTURIES

First contacts between Aboriginal peoples and Europeans were sporadic and apparently occurred about a thousand years ago when Norsemen proceeding from Iceland and Greenland are believed to have voyaged to the coast of North America. There is archaeological evidence of a settlement having been established at L'Anse aux Meadows on the northern peninsula of what is now Newfoundland. Accounts of these early voyages and of visits to the coast of Labrador are found in many of the Norse sagas. They mention contact with the indigenous inhabitants who, on the island of Newfoundland, were likely to have been the Beothuk people, and on the Labrador coast, the Innu. These early Norse voyages are believed to have continued until the 1340s, and to have included visits to Arctic areas such as Ellesmere and Baffin Island where the Norse would have encountered Inuit. Inuit legends appear to support Norse sagas on this score. The people who established the L'Anse aux Meadows settlement were agriculturalists, although their initial economic base is thought to have centred on the export of wood to Greenland as well as trade in furs. Conflict with Aboriginal people likely occurred relatively soon after the colony was established. Thus, within a few years of their arrival, the Norse appear to have abandoned the settlement and with it the first European colonial experiment in North America.1 Further intermittent commercial contacts ensued with other Europeans, as sailors of Basque, English, French and other nationalities came in search of natural resources such as timber, fish, furs, whale, walrus and polar bear. Little is known of this very early period of contact. By the late 1400s, explorers were commissioned to find a route to the Orient by sailing west from Europe, thus providing an additional motive for European contact with North American Aboriginal peoples. These subsequent explorations included the voyages of Christopher Columbus to several islands in the Caribbean sea and those of John Cabot, who was seeking a more northerly route. Cabot's voyages began as early as 1494, and by 1497 he landed in a place he referred to as New Found Land.2

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These first voyages of natural resource exploitation and exploration developed into initially brief, but then longer, encounters with Aboriginal peoples. By the time of Cartier's visits in the 1530s to the Maritimes, Stadacona (Quebec City) and Hochelaga (Montreal), patterns of trade between the newcomers and the indigenous inhabitants were already becoming established features of the relationship between them. Europeans initially came armed with assumptions similar to those of the Spanish further south. Thus, the letters patent issued to John Cabot by King Henry VII gave the explorer instructions to seize the lands and population centres of the territories "newely founde" in order to prevent other, competing European nations from doing the same: And that the aforesaid John and his sonnes...may subdue, occupie, and possesse, all such townes, cities, castles, and yles, of them founde, which they can subdue, occupie and possesse, as our vassailes and lieutenantes, getting vnto vs the rule, title, and iurisdiction of the same villages, townes, castles and firme lands so founde...3 Nonetheless, in general, contacts between Aboriginal and non-Aboriginal peoples in this part of North America were marked less by these European pretensions and open conflict with Aboriginal peoples than by a mixture of mutual curiosity, halting efforts at friendship and some considerable apprehension. Each side struggled to interpret the behaviour and motives of the other in the light of their respective cultural traditions. Frequently this led to negative judgements on both sides. While some Aboriginal groups retreated from contact, others moved quickly to establish firm trading relationships and to solidify their monopoly on trade with the newcomers. Relations were established in a context in which Aboriginal peoples initially had the upper hand in population and in terms of their knowledge of the land and how to survive in it. These factors contributed to early patterns of co-operation and helped to overcome the colonial attitudes and pretensions the first European arrivals may originally have possessed. The newcomers, far from their home ports and scattered in a vast land of which they had little practical knowledge, of necessity had to develop friendly relations with at least some original inhabitants.4 Political and economic accommodations soon followed. In the economic realm, both sides benefited from the commerce that took place. Europeans gained access to valuable resources such as fish and furs and also realized to varying degrees their ambitions to gain new territories. Both societies exchanged technologies and material goods that made their lives easier in their common environment. Some Aboriginal nations, too, profited from serving as commercial intermediaries between the Europeans and other Aboriginal nations located further in the interior. The links between Aboriginal and non-Aboriginal societies in this initial period of contact were primarily commercial and only secondarily political and military. Thus they placed additional pressure on natural resources and contributed to rivalries among all participants in the trading economy. However, by the same token, they did not interfere

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in a major way with long-standing Aboriginal patterns of pursuing their livelihood and actually tended to build on Aboriginal strengths — hunting, fishing, trapping, trading, canoeing or transportation — rather than undermine them. It is clear that the newcomers badly needed the co-operation of the indigenous inhabitants if they were to realize the objectives that attracted them to North America. Referring to the French, J.R. Miller writes as follows: From the time of Champlain's voyages till the dawn of the eighteenth century, the French came for fish, fur, exploration, and evangelization. The Indian was an indispensable partner — frequently a dominant as well as a necessary partner — in all these activities. To preserve fish, to gather fur, to probe and map the land, and to spread the Christian message, cooperation by the Indians was essential. For their part the Indians found it acceptable, and occasionally desirable, to humour the newcomers. To a minor degree the explanation could be found in Indian traditions of sharing and avoiding coercion of others. A more important reason for their toleration of and cooperation with the French was that the newcomers' activities were compatible with the continuation of Indian ways. Fishing boats were no threat, given the rich stocks of fish and the brief landfalls by fishermen. Fur traders were a source of valued goods, and their activities did not require much change in Indian economic activities. Explorers and cartographers were less obviously useful...[b]ut cooperation with them was necessary to maintain the commercial relationship. The same consideration explained the grudging acceptance of missionaries in Indian villages.5 Politically, the initial period of contact was also one of mutual recognition, whereby Aboriginal and non-Aboriginal societies appear, however reluctantly at times, to have determined that the best course of action was to treat the other as a political equal in most important respects. As our more detailed accounts will illustrate, however, it was a time when the European powers were developing great ambitions for North America. These ambitions would drive them to claim these lands as their own, to proclaim their exclusive sovereignty over the Aboriginal inhabitants, and to issue instructions either to drive the Aboriginal peoples farther inland or to subdue them entirely, as given in the original instructions carried by John Cabot and other voyagers to the new world. However, the existence of relatively strong, organized and politically active and astute Aboriginal nations caused the Europeans to recognize in practice, and later in law, the capacity of Aboriginal nations not only to govern their own affairs and to possess their own lands, but also to conclude treaties with them of a type similar to those the European nations were accustomed to making with each other. In the many ensuing struggles between France and Britain, as well as in the later ones between the American colonists and the British, Aboriginal nations were also greatly valued as military allies. Since victory or defeat in any particular military contest might hang in the balance, strenuous efforts were often made by the warring colonial powers either to enlist the support of Aboriginal nations or, at least, to assure their neutrality. Neither support nor neutrality could be demanded at this stage in the relationship, however; it could be achieved only by persuasion and diplomacy.

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At this point it is important to state that, by highlighting areas of co-operation, recognition and mutual benefit, it is not our intention to minimize the hardship, the diseases and the sheer racial and religious prejudice that were also characteristic of the initial period of contact. For example, historical accounts make clear that the newcomers suffered greatly and, indeed, many died from illness, exposure and other challenges presented by a land they regarded at the outset as foreign and inhospitable. Undoubtedly they would have suffered even greater hardships had not the Aboriginal peoples helped them with food, medicines and survival techniques. Much more devastating, though, was the impact of imported diseases on the Aboriginal population, whose numbers are estimated to have declined by at least 50 per cent, if not more, in the first three hundred years of sustained contact.6 With declining Aboriginal populations and ever-increasing European immigration to the New World, the numerical balance between the two groups gradually shifted during this first period of relations between them. By the latter part of the 1700s, in fact, it is estimated that Aboriginal and non-Aboriginal people were roughly equal in numbers. On the eastern seaboard the imbalance in favour of the newcomers quickly became pronounced and resulted in the rapid loss of Aboriginal nations' relative autonomy in that area. Many chose to move away from non-Aboriginal settlements to preserve their independence — a tendency that would increase during the next stage in the relationship: displacement. At this early stage, however, neither society seemed to know what to make of the other. Much debate occurred within each, as well as between them, about the new people they were encountering and their strange habits. Representatives of the Haudenosaunee Confederacy would later say that, as time went on, it was decided that the appropriate relationship was one of some distance: [W]hen your ancestors came to our shores, after living with them for a few years, observing them, our ancestors came to the conclusion that we could not live together in the same way inside the circle. ...So our leaders at that time, along with your leaders, sat down for many years to try to work out a solution. This is what they came up with. We call it Gus-Wen-Tah, or the two-row wampum belt. It is on a bed of white wampum, which symbolizes the purity of the agreement. There are two rows of purple, and those two rows have the spirit of our ancestors; those two rows never come together in that belt, and it is easy to see what that means. It means that we have two different paths, two different people. The agreement was made that your road will have your vessel, your people, your politics, your government, your way of life, your religion, your beliefs — they are all in there. The same goes for ours. ...They said there will be three beads of wampum separating the two, and they will symbolize peace, friendship, and respect.7 Interpretations of cultural difference often take the form of racist stereotypes. Nonetheless, and despite the often vast cultural differences between them, not all Europeans shared such xenophobic and self-serving views on the nature of the Aboriginal

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inhabitants of the newly 'discovered' lands. The diversity of views on the Aboriginal inhabitants of the New World is captured in the famous debate between Bartolomé de las Casas and Juan Ginés de Sepúlveda, which took place in 1550 in the presence of the Holy Roman Emperor at Valladolid, Spain; an excerpt from a dramatization of the debate is reproduced in the accompanying box. Las Casas was a Roman Catholic priest and ardent advocate of Aboriginal rights who had spent much time in the Spanish colonies in the Americas. Sepúlveda was a respected jurist and imperial official, close to the emperor and his court. At that time, some Spaniards had begun to question the cruelty as well as the legal and philosophical underpinnings of colonial policy. Las Casas was the leader of those opposed to official policy. As the extract from the Valladolid debate shows, a strong and enduring component of European conceptions of the inferiority of Aboriginal peoples was the conviction that they were heathens — "worshipping stones", as Sepúlveda put it. As a result of this conviction, Europeans determined that it was their religious duty to convert Aboriginal peoples to Christianity. This intolerant view led to sustained efforts at missionary proselytization by the various Christian denominations, efforts that reached their peak during the next stage of relations, when the power imbalance between Aboriginal and non-Aboriginal societies permitted religious campaigns that undermined Aboriginal cultures and social structures. The Debate at Valladolid Sepúlveda: The Indians of the New World are, by the rudeness of their nature, natural slaves. Natural law provides a justification for those people motivated by pure generosity who undertake to rule over barbarous peoples. By making the barbarians change their lives, they comply with a duty of mankind to rout out customs contrary to natural laws. As Aristotle teaches us, from the hour of their birth some are marked for subjection and others for rule. They are not slaves by the strength of armies or by the laws of nations, but by their nature. They are persons of inborn rudeness and of inhuman customs. Thus one part of mankind is set aside by nature to be slaves, slaves in the service of masters who are born for a life free of manual labour. Prudent and wise men have been given dominion over them for their own welfare. If inferior beings refuse this overlordship, they may be warred against justly, as one would hunt down wild beasts. Las Casas: God has deprived [Sepúlveda] of any knowledge of the New World. Long before the Indians heard the word "Spaniard", they had properly organized states, states wisely ordered by excellent laws, religion and custom. They cultivated friendships, came together in common fellowship, lived in populous cities. In fact, they were governed by laws that surpass our own at many points. They would certainly have won the admiration of the sage of Athens. Now, we Spanish have ourselves been called wild barbarians by the Romans. They thought we were led to a more civilized life by Caesar Augustus. I would like to hear Doctor Sepúlveda in his 98

cleverness answer this question: Does he think that the Roman war against us was justified in order to free us from barbarism? Did we Spanish wage an unjust war when we defended ourselves against the Romans?... Sepúlveda: But worshipping stones as God is contrary to natural reason, and thus forbidden by the nature of things. The Indians cannot be invincibly ignorant, and they cannot be here so easily excused! Las Casas: The ultimate intention of those who worship idols is not to worship stone, but to worship the planner of the world. Although they venerate stones, they understand there is something greater than themselves. Thus, they show they have wisdom! It is clear that the intention of those who worship idols is to honour and adore the true God, whoever he may be. Source: "On the Just Causes of War: The Debate at Valladolid", dramatization of the debate between Bishop Don Fray Bartolomé de las Casas and Doctor Juan Ginés de Sepúlveda, historiographer to His Majesty Charles V, Holy Roman Emperor, at Valladolid, Spain, 1550 (The Canadian Broadcasting Corporation, "Ideas", 1985).

However, while prejudices and stereotypes abounded, during this first period of relations between culturally divergent Aboriginal and non-Aboriginal societies, there is also evidence of a relationship of mutual respect that developed among those individuals and groups who worked, traded and sometimes lived together over longer periods of time. Outside the salons of Europe and the discourse of élites, ordinary people adopted each other's foods, clothing, hunting or transport technologies as they proved useful. Those brought together by the fur trade often intermarried and, as a result, enriched both cultures. The offspring of these unions would eventually form a new people with a distinct identity, the Métis people. And at the same time as missionaries were seeking to convert Aboriginal peoples to Christianity, there is also evidence that Europeans, especially young men working on the frontiers of contact with Aboriginal peoples, found much not only to admire but also to emulate, especially their quiet determination and independent attitudes.8 Indeed, many Europeans were adopted and assimilated into Aboriginal nations. This stage in the relationship between Aboriginal and non-Aboriginal societies was, in short, a tumultuous and often confusing and unsettled period. While it established the working principles that were to guide relations between them, it also brought substantial changes to both societies that, at times, threatened to overwhelm them. A snapshot of this turbulent and important time is given by the following three accounts. The first illustrates patterns of contact and trade between the French, on the one hand, and the Wendat and Innu on the other. The second focuses on patterns of political relationship, with particular attention to the seminal Royal Proclamation of 1763. The early history of treaty making between European nations and First Nations is the subject of the third account. Treaties and the rights they reflect remain an important strand in the Canadian constitutional fabric, as do the Aboriginal rights that developed over time and were referred to in the Royal Proclamation. The principles of relationship first established so long ago continue to have relevance for the relations between Aboriginal and non99

Aboriginal people in Canada even today, despite the turbulence and often unsettled nature of our own times.

1. The Innu, the Wendat and the Fur Trade When Europeans first arrived in northeastern North America they encountered a diversity of indigenous nations belonging to two linguistic families, the Algonquian and Iroquoian. The former included the Mi'kmaq, and the latter included the Haudenosaunee peoples described earlier. The Algonquian-speaking peoples who inhabited the region immediately north of the St. Lawrence and east of the Saguenay River were called Montagnais by the French, but they refer to themselves as Innu ('human being'). The Innu lived and continue to live in the boreal forest zone of the Canadian Shield. It is a region where the small number of frost-free days each year makes agriculture difficult, if not impossible. The Innu economy, therefore, was one of hunting and gathering in which small groups of some 50 people obtained river eels in the fall, porcupine, beaver, moose, and caribou in the winter, and bear, beaver and fowl in the spring. During the summer these groups congregated in larger gatherings of 150 to 300 people at the mouths of rivers flowing into the St. Lawrence to fish, trade, attend festivals, and renew their social and political bonds. Each fall, they broke up to start a new cycle of hunting and gathering in the interior. Because the Innu were organized into mobile forager groups, they lived in small, temporary dwellings — conical lodges covered with large rolls of birch bark. From the perspective of their own culture the French had difficulty appreciating and comprehending the Innu lifestyle. The Recollet missionary Gabriel Sagard, for example, referred to the Innu in disparaging terms as the "poorest, most wretched and neediest of all", since they seemed obliged to "range the fields and forests in small bands, like beggars and vagabonds, in order to find something to eat".9 For their part, the Aboriginal peoples recognized the difference in lifestyles between themselves and the Europeans. Algonquian peoples remarked that their people were like caribou because they were continually on the move, while the French remained stationary like the moose.10 The sedentary newcomers, who were "tilling the earth at the place where they make their abode" appeared to have more in common with the Iroquoian-speaking peoples further south.11 The Iroquoians living in the region between Georgian Bay and Lake Simcoe called themselves Wendat ('Islanders' or 'Dwellers on a Peninsula'12), while the French referred to them as Huron — perhaps an adaptation of the Old French term hure, a figurative expression for a rustic or hillbilly.13 At the time of European contact, the Wendat Confederacy had a population of more than 20,000 people inhabiting an area of less than 2,000 square kilometres.14 The Wendat in this early period consisted of four distinct nations living adjacent to one another in large, heavily fortified villages of 1,500 to 2,000 people, as well as in smaller satellite communities surrounded by fields. These settlements were occupied year-round but were moved once every 10 to 15 years. The Wendat organized themselves into

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matrilineal extended families and, like their Haudenosaunee relatives, lived in longhouses. Although the soil conditions and annual growing season were not ideal for farming, they were sufficient to permit a few important crops. The women tended the fields of corn, beans and squash, while the men hunted, fished, traded, and carried out military and diplomatic missions. Throughout much of the sixteenth century the Europeans were interested primarily in whaling and the cod fishery. Thus, during this initial phase of contact the fur trade constituted only a modest supplement to these industries and was restricted to the eastern seaboard and the Gulf of St. Lawrence. By the turn of the seventeenth century, however, the Europeans were lingering for extended periods on North American soil and coming into more intensive contact with the Aboriginal peoples, a tendency that accelerated with the arrival of traders and missionaries. This extended contact was to have a profound effect on both societies and would lead to many cultural and political innovations. Religious and culturally based misinterpretations and misconceptions were inevitable in the earliest periods. According to an oral account recorded in 1633, recalling an incident in the early sixteenth century, the first time the Innu saw a French ship arrive upon their shores they thought it was a moving island. Their astonishment only increased at the sight of men on deck. As was their custom when visitors arrived, the Innu women immediately erected shelters for them while the men ventured out in canoes to meet the new arrivals. For their part, the French offered them biscuits. The Innu took the biscuits ashore, examined them, tasted them, then threw them into the river, reporting that the Frenchmen drank blood and ate wood — thus naming the wine and biscuits they had seen.15 Nonetheless, it did not take long for the Innu to recognize that the newcomers had goods that could be adapted to their own requirements. Initially, the Algonquian and Iroquoian peoples regarded European metal objects and glass beads much as they viewed native copper and quartz crystals, seeing them as sources of supernatural power. In other cases they modified novel goods so that they conformed more closely to their own cultural preferences. For example, many of the European beads were produced through a process of building up successive layers of coloured glass; when given these polychrome beads, the Wendat ground off the dark blue and white outer coatings to reveal the desired red layer underneath. The scarcity of some symbolically charged items, as well as the utilitarian nature of others, made them particularly desirable. By the early seventeenth century the Innu were routinely using copper kettles and iron axes as replacements for bark baskets, clay pots and stone adzes. Some individuals also adopted woollen garments and purchased dried peas and sea biscuits. Since the Innu were seasonally nomadic, they were not in a position to accumulate large quantities of European goods; hence, there was little desire to maximize the trade. Nevertheless, many goods were accumulated for the purpose of giving them away, whether to relatives, neighbours or allies, thereby enhancing the prestige of the givers.

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Europeans also realized many benefits in the early contact experience. For example, the North American practice of pipe smoking was enthusiastically appropriated by sixteenthcentury Europeans, at first for purely medical reasons. According to prevailing European ideas of that era, smoking seemed to dry out superfluous 'humours', thereby adjusting imbalances caused by inappropriate diet and climate. By the first decade of the seventeenth century tobacco had become a panacea prescribed for every malady from flatulence to the plague. Within a short time the tobacco trade became the economic lifeline of Jamestown, Virginia, the first permanent English settlement in the New World. Although some European traders obtained Aboriginal clothing, canoes, snowshoes and other items for themselves, the most sought after goods were beaver pelts. They could be sold in Europe as the raw material for felt hats, then in vogue among the middle class and the nobility. The traders were especially interested in procuring pelts that had already been worn as clothing for fifteen to eighteen months. Wearing them during the winter wore off the long guard hairs, thereby rendering them most valuable for the manufacture of high-grade felt. For Aboriginal people, hunting the then-abundant beaver and selling used clothing was an economical means of obtaining European goods. The fur trade thus served as an additional incentive for the Innu to gather along the St. Lawrence. Once the trade became firmly established, however, the sheer volume of furs required by French trading companies to cover their costs resulted in the expansion of the trade to other Aboriginal groups further inland. Because of their seasonal rounds and strategically located summer camps, the Innu enjoyed a middleman status between the French traders who came to Tadoussac at the mouth of the Saguenay and other Algonquin trappers in the interior. The furs obtained north of the St. Lawrence were not only greater in number but also of superior quality to those collected to the south. This was one of the factors that pushed the French to establish ties with the Innu, rather than with groups such as the more southerly Mohawk who lived in what is now New York state. By the first decade of the seventeenth century the French were granting trading monopolies to wealthy merchants in hopes of promoting year-round European settlement in the St. Lawrence region. This necessitated good relations with the Innu who controlled trade at Tadoussac. In 1600, Pierre de Chauvin left 16 men to spend the winter; only five survived, despite the generous help of the Innu. Several years later, François Gravé Du Pont took three Innu to spend a winter in France, where they were treated with equal generosity. To maintain cordial trade relations, the French offered to assist the Innu in their hostilities with the Mohawk, a decision that was to lead to decades of enmity between the French and the Haudenosaunee Confederacy. When the French built a post at Quebec in 1608, the Innu welcomed the additional protection from Mohawk raids, and the French saw it as an opportunity to safeguard their interests from competing groups of traders and as a means of promoting free use of the St. Lawrence by their indigenous trading partners. The post was also to serve as a springboard for expeditions into the interior. The Innu, likely in an effort to maintain their middleman position in the fur trade, prevented Samuel de Champlain from travelling up

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the Saguenay River. The following year, however, they encouraged him to accompany them up the St. Lawrence and Richelieu rivers on a joint raiding expedition against the Mohawk. Unfortunately for the Innu, this allowed the French to establish closer ties with another Aboriginal nation that had joined the raiding party, the Wendat. Their interior location meant that from this point on, much of the trade bypassed Tadoussac, leaving many Innu to return to their traditional lifeways in the hinterlands. Aware of the advantages of trade with a populous and relatively sedentary society located deep in the interior and away from competing traders, Champlain aspired to bring the Wendat into the fur trade. By that time the Wendat had already become the hub of the intertribal trading network in the Great Lakes region. Although the beaver had become virtually extinct in Wendat territory by 1630, they were nevertheless able to obtain a sufficient number of furs from their trading partners in return for corn surpluses and European goods. The furs were then traded to the French in return for iron knives, awls, axes, copper and brass kettles, and glass beads. For many years, a flotilla of 60 canoes and 200 men from Huronia came to Quebec via the French, Mattawa, Ottawa and St. Lawrence rivers. As many as 15,000 pelts were traded annually. This commerce appears to have strengthened Wendat social organization, enhanced the power of hereditary chiefs, and generally enriched their culture. It also brought substantial profits for the French. Enhanced contact through the fur trade also had destructive consequences, however, the most serious being epidemics of European origin which, by the 1630s, were decimating the Innu and beginning to affect the Wendat. Less obviously destructive, at least in the short term, was the impact on traditional Aboriginal societies of missionary proselytization. Recollet missionaries had already attempted to persuade the Innu to turn to farming, convert to Christianity, abandon 'uncivilized ways', and settle in Europeanstyle villages. However, the extensive seasonal movements of the Innu and their frequent changes in group affiliation made it difficult for missionaries to accomplish this task. After his attention focused on Huronia, Champlain insisted that there would be no trade without missionaries. The Recollet missionaries in Wendat territory refused, however, to live with 'pagan' Wendat families, erecting cabins on the outskirts of Wendat settlements instead. The Jesuits who arrived a few years later believed that conversion was best achieved by keeping Indigenous peoples away from the vices of European settlements. They therefore pursued a different course from their predecessors, living among the Wendat and learning their language. During this period many Aboriginal people regarded the missionaries as shamans, interpreted their baptismal rites as curing rituals, and generally tolerated their presence for fear of jeopardizing trade and political alliances with the French. To the Jesuits their mission was akin to a war against satanic forces and was intended to reap a rich harvest of souls. In their battle, the missionaries were armed with formidable intellectual weapons, since all had studied and taught a variety of academic subjects for at least six years in prestigious French colleges. What ensued was a remarkably sophisticated philosophical discourse, in which some of the most educated men of Europe

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engaged in long arguments deep in the Canadian wilderness with shamans and village elders equally adept at debating metaphysical issues from their own cultural perspective. Although the benefits of trade were easily understood on both sides of the cultural divide, belief systems were an entirely different matter. European intellectualism and religious intolerance led to many misunderstandings. For example, confronted with a Wendat understanding of the afterlife, Father Jean de Brébeuf felt obliged to exclaim, "God of truth, what ignorance and stupidity!"16 Responding to Paul Le Jeune's inquiries on the same subject, an Innu elder retorted, "Be silent; thou hast no sense; thou askest things which thou dost not know thyself."17 At issue was the composition and fate of the soul. Steeped in the traditions of classical philosophy and Christianity, the Jesuits argued that only human beings had a soul, and that the soul itself was a single entity that could not be separated into parts. The Wendat, on the other hand, along with other Aboriginal peoples, believed that other animate beings and even inanimate objects also had souls. Moreover, they also held that each human being had at least five different souls, not just one. Recognizing that Indigenous peoples were interested in French technology and regarded legerdemain as a sign of spiritual power, the Jesuits employed written texts, iconographic imagery, magnets, magnifying glasses, clocks and even their ability to predict eclipses in an effort to provide empirical demonstrations of their own supernatural superiority. The Wendat were also made aware that converts were given more gifts by the French, offered better prices for their beaver pelts and, eventually, supplied with firearms. Wendat religion, similar to the views of other Aboriginal peoples, permeated all aspects of life and made no distinction between the secular and the sacred. Upon conversion to Christianity, therefore, Wendat converts were obliged to give up more than their Wendat religion. They also gave up much of what had given them their overall sense of identity as Wendat. As the number of converts rose, this had profoundly negative consequences for Wendat social and political cohesion. For example, converts were led to believe that even after death they could not rejoin their fellow villagers in the land of the souls, but would end up instead in the Christian Heaven illustrated in Renaissance woodcuts. Thus, by the 1640s tensions between Christian converts and Wendat traditionalists resulted in factionalism, further undermining a confederacy already weakened by the loss of much of its population to European diseases. In 1649, the Mohawk and Seneca nations took advantage of the debilitated and divided Wendat people, attacking their settlements and dispersing them from their traditional homelands. Many Wendat fled to the west and established themselves in lands now part of Michigan and Ohio; others moved east to the settlement at Lorrette near Quebec City; still others were adopted into Iroquois villages in what is now New York state. In summary, there is little doubt that contact between Aboriginal and non-Aboriginal peoples in the late sixteenth and early seventeenth centuries was mutually beneficial in many important ways. The cultures of both groups were altered, and unique forms of commercial and political association were developed that will be discussed in subsequent

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chapters. Contact also had tragic consequences with long-term effects, however, many of which are still felt in modern Canadian society. It is also clear that the patterns of relationship varied significantly from one Aboriginal group to another. Since Algonquian and Iroquoian nations, for example, had different modes of subsistence and social organization and unique and well established patterns of political and trade relations before European contact, it is not surprising that they experienced the effects of contact differently. Pursuing different strategies of accommodation and compromise, the many diverse Aboriginal nations on the northern half of the continent that came into contact with non-Aboriginal peoples did not all experience the effects of that contact in the same way.

2. The ROYAL PROCLAMATION OF 1763 As illustrated by the extract from the letters patent issued to John Cabot cited earlier in this chapter, both France and Great Britain initially had far-reaching plans for imperial adventures in North America that took little account of the rights of the Aboriginal inhabitants. Nonetheless, as the history of French relations with the Innu and Wendat shows, in the early days of colonization the French were usually compelled to seek Aboriginal nations as trading partners and military allies, in that way recognizing the autonomy and independence of the Aboriginal nations with which they sought association. This paradoxical blend of imperial pretension and cautious realism was reflected not only in the actions they took in relation to Aboriginal societies, but also in official documents of the era. A good example is the royal commission issued in 1603 by the French Crown to Sieur de Monts, giving him the authority to represent the King within a huge territory running along the Atlantic coast from modern New Jersey, north to Cape Breton Island and extending indefinitely inland. Excerpt from the Royal Proclamation of 1763 And whereas great Frauds and Abuses have been committed in the purchasing Lands of the Indians, to the great Prejudice of Our Interests, and to the great Dissatisfaction of the said Indians; in order therefore to prevent such Irregularities for the future, and to the End that the Indians may be convinced of Our Justice, and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of Our Privy Council, strictly enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians, within those Parts of Our Colonies where We have thought proper to allow Settlement; but that if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, the same shall be purchased only for Us, in Our Name, at some publick Meeting or Assembly of the said Indians to be held for that Purpose... Source: Brigham, British Royal Proclamations (cited in note 27), volume 12, pp. 212-218. This is the most accurate printed text of the Proclamation, and it is reproduced in full in Appendix D of this volume. A less accurate version is reproduced in the Revised Statutes of Canada 1985, Appendix II, No. 1. The original text, entered on the Patent Roll for the regnal year 4 George

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III, is found in the United Kingdom Public Record Office, c. 66#3693 (back of roll).

The document makes no attempt to disguise its imperial ambitions. It gives de Monts the power to extend the King's authority as far as possible within the stated limits and to subdue the local inhabitants. Nevertheless, in the same breath, it acknowledges the independent status of indigenous American peoples and recognizes their capacity to conclude treaties of peace and friendship. The commission portrays treaties as a principal means for enlarging the King's influence in America and mentions the possibility of "confederation" with the Indigenous peoples. De Monts is told to uphold and observe such treaties scrupulously, provided the Indigenous peoples and their rulers do likewise. If they default on their treaty obligations, De Monts is authorized to resort to war in order to gain at least enough authority among them to enable the French to settle in their vicinity and trade with them in peace and security. Aboriginal nations viewed their relations with the French from a different perspective. While outlooks varied from nation to nation, as a rule Aboriginal peoples tended to characterize these relations at the outset more in terms of friendship and alliance and less in terms of sovereignty or protection in the European sense.18 As demonstrated by our earlier discussion of the Haudenosaunee Great Law of Peace, this was in keeping with their own traditions and clan- and family-oriented approach to nation-to-nation matters. For example, in 1715 when the British tried to persuade the Mi'kmaq to swear allegiance to the British Crown after the French cession of Acadia, the Mi'kmaq replied that the French Crown could not have ceded away their rights since they had always been independent peoples, allies and brothers of the French. Likewise, in 1752 the Abenakis pointedly informed a representative of the governor at Boston as follows: We are entirely free; we are allies of the King of France, from whom we have received the Faith and all sorts of assistance in our necessities; we love that Monarch, and we are strongly attached to his interests.19 Evidently, the reality of relations between Aboriginal and European nations in these early periods was remarkably complex, fluid and ambiguous. Thus, while the French, for instance, clearly wanted to assert some form of sovereign control over neighbouring Aboriginal peoples, in practice they often had to settle for alliances or simple neutrality. And while Aboriginal nations sometimes wished to assert their total independence of the French colony, in practice they often found themselves reliant on French trade and protection and increasingly overshadowed by European armed might. The French policy of cultivating the friendship and alliance of Aboriginal peoples was replicated, with less success, by the burgeoning British colonies to the south. Like New France, these colonies would have preferred to be in a position to dominate and control their Aboriginal neighbours. However, they often had little alternative but to solicit Indigenous peoples as trading partners and as allies in the struggles with France. So, as with French-Aboriginal relations, treaties were a common and important feature of 106

British relations with indigenous North American peoples. And as illustrated by the earlier account of the Haudenosaunee, treaties and other formal acts between Aboriginal and European nations were usually conducted in accordance with an adapted form of the ceremony appropriate to the Aboriginal nation concerned. The treaty relationship is discussed further later in this chapter. There was one important difference between British and French practice in this context that would have long-term effects on the overall relationship between Aboriginal and non-Aboriginal peoples in this part of North America. The French colony, whose population remained small, was planted along the shores of the St. Lawrence River, in an area no longer inhabited by the Iroquoian peoples of Stadacona and Hochelaga. Thus, there was no need for the French to obtain lands from their Aboriginal neighbours. By contrast, from an early period the British colonists found their Aboriginal neighbours in possession of lands they wanted themselves for purposes of expanding their settlements and economic activities. In the opening stages of British settlement in North America, this collision of interests resulted in warfare and led to the forcible dispossession of Aboriginal nations in Virginia and New England. Many Aboriginal nations allied themselves with the French or retreated before the advance of the British colonists. Over time, however, and to avoid further hostilities, a policy developed whereby lands required for settlement would ordinarily be secured from their Aboriginal owners by formal agreement. Thus, treaties specifically involving land cessions by Aboriginal nations soon became a common feature of the British-Aboriginal relationship. Relations between the British colonies and Aboriginal peoples during this period were complex and diverse, with strong elements of contradiction and paradox that often defy understanding even today. This is one reason the history of relations between them is so crucial to understanding contemporary disputes between Aboriginal and non-Aboriginal peoples. Nevertheless, by 1763, when New France was ceded to the British Crown in the Treaty of Paris, Aboriginal/English relations had stabilized to the point where they could be seen to be grounded in two fundamental principles. Under the first principle, Aboriginal peoples were generally recognized as autonomous political units capable of having treaty relations with the Crown. This principle was established at an early stage of British settlement. It is reflected, for example, in royal instructions to the governor of Nova Scotia in 1719: And whereas we have judged it highly necessary for our service that you should cultivate and maintain a strict friendship and good correspondence with the Indians inhabiting within our said province of Nova Scotia, that they may be induced by degrees not only to be good neighbors to our subjects but likewise themselves to become good subjects to us; we do therefore direct you upon your arrival in Nova Scotia to send for the several heads of the said Indian nations or clans and promise them friendship and protection in his Majesty's part; you will likewise bestow upon them in our name as your discretion shall direct such presents as you shall carry from hence for their use.20

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This provision recognizes the autonomous status of Indian peoples, organized in nations or clans, with their own leaders, and envisages the establishment of treaty relations. This inference is spelled out in revised instructions sent to the Nova Scotia governor in 1749, which directed him explicitly to enter into a treaty with the Indian people, promising them the Crown's friendship and protection.21 A second principle emerged from British practice. This acknowledged that Aboriginal nations were entitled to the territories in their possession unless, or until, they ceded them away. Although this proposition may seem self-evident, it was not always so from the colonists' self-interested perspective, and it required periodic restatement. It was articulated, for example, by royal commissioners appointed by the Crown in 1664 to visit the New England colonies. The commissioners had the power, among other things, to hear Indian people's complaints of ill-treatment.22 One of the matters considered by the commissioners was a Massachusetts law providing that Indian people had a just right to any lands they possessed, so long as they had improved these lands "by subduing the same".23 The latter restriction — reminiscent of preacher Gray's views (quoted in Chapter 4) that "these savages have no particular property in any part or parcel of that country" and supported by biblical citations — suggested that Indian title would be recognized only over lands that had actually been cultivated or otherwise 'improved' in the European fashion. Under this proviso, the traditional hunting and fishing grounds of Indian peoples would not have qualified. The royal commissioners censured this provision, commenting that it implied that Indian people "were dispossessed of their land by Scripture, which is both against the honor of God & the justice of the king." In conclusion, the commissioners reaffirmed the title of Indian peoples to all their lands, both 'improved' and 'unimproved', stating broadly, "no doubt the country is theirs till they give it or sell it, though it be not improved."24 When New France fell to British forces and was ceded to the Crown in 1763, Great Britain was confronted with the twin problems of winning the friendship and trust of France's former First Nations allies and dealing with the mounting dissatisfaction of some of its own indigenous allies over incursions by American colonists on their lands. Although the war with France was over, there was a grave danger that a new war with First Nations might break out. The British government decided that the best course was one of conciliation, as an official memorandum sent by Lord Egremont makes clear: Tho'...it may become necessary to erect some Forts in the Indian Country, with their Consent, yet His Majesty's Justice & Moderation inclines Him to adopt the more eligible Method of conciliating the Minds of the Indians by the Mildness of His Government, by protecting their Persons & Property & securing to them all the Possessions, Rights and Priviledges they have hitherto enjoyed, & are entitled to, most cautiously guarding against any Invasion or Occupation of their Hunting Lands, the Possession of which is to be acquired by fair Purchase only...25

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Events quickly proved that the fears of conflict were far from groundless. During the summer of 1763, a widespread war — led by the Odawa chief, Pontiac — erupted over unresolved grievances, engulfing the American interior. This underscored the need for a sound, comprehensive and enforceable Indian policy. In response, the British government adopted the somewhat unusual measure of issuing a royal proclamation declaring in resounding terms the basic tenets of British policy toward the Indian nations. At the same time it made provision for the territories recently ceded to Great Britain by France and Spain. By giving the Proclamation widespread publicity throughout the colonies, it was hoped to reassure Indian peoples of the good intentions of the British government. This document, issued on 7 October 1763, is a landmark in British/Indian relations (see Appendix D). It has been described by Mr. Justice Hall of the Supreme Court of Canada as the Indian Bill of Rights. "Its force as a statute", he writes, "is analogous to the status of Magna Carta which has always been considered to be the law throughout the Empire. It was a law which followed the flag as England assumed jurisdiction over newly discovered or acquired lands or territories."26 The Proclamation is a complex legal document, with several distinct parts and numerous subdivisions, whose scope differs from provision to provision. It resists easy summary, but it serves two main purposes. The first is to articulate the basic principles governing the Crown's relations with Indian nations. The second is to lay down the constitutions and boundaries of several new settler colonies, one being the colony of Quebec. The basic viewpoint informing the Proclamation's Indian provisions is summarized in the preamble as follows: And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds...27 This passage portrays Indian nations as autonomous political units living under the Crown's protection while retaining their internal political authority and their territories. These territories should not be granted or appropriated by the British without Indian consent. The preamble thus incorporates the two basic principles of British/Indian relations referred to earlier. Paradoxically, however, it refers to Indian lands as being "such Parts of Our Dominions and Territories". In short, Indian lands were, from the perspective of the Royal Proclamation, already Crown lands, despite their prior occupation by Aboriginal nations. Thus, while setting out new rules for Indian land cessions, the Proclamation also seems to adopt the discovery doctrine, discussed in Chapter 4. The implications of this paradoxical approach to Indian lands are discussed further in Chapter 9, in the context of the Indian Act. In any event, the King goes on in the Proclamation to refer to the "great Frauds and Abuses" perpetrated in the past by individuals engaged in doubtful land speculation

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involving Indian lands, "to the great Prejudice of Our Interests, and to the great Dissatisfaction of the said Indians". The King expresses his determination to prevent such irregularities in the future, so that "the Indians may be convinced of Our Justice, and determined Resolution to remove all reasonable Cause of Discontent". To implement this policy, the King forbids private individuals to purchase any lands from the Indians and lays down a procedure requiring the voluntary cession of Indian lands to the Crown in a public assembly of the Indians concerned. The land cession is thus to be effected by mutual agreement or treaty. In short, the Proclamation portrays Aboriginal nations as autonomous political units living under the Crown's protection and on lands that are already part of the Crown's dominions. Aboriginal nations hold inherent authority over their internal affairs and the power to deal with the Crown by way of treaty and agreement. In a word, it portrays the links between Aboriginal peoples and the Crown as broadly 'confederal'. Relations between the Crown and Aboriginal peoples differed from those between the Crown and its settler colonies. This difference is reflected in the structure of the Proclamation, which deals in a separate part with the constitutions of Quebec and several other new colonies. Here, the King directs the colonial governors to summon representative assemblies as soon as circumstances permit. The governors are given the power, together with their councils and assemblies, to make laws "for the Public Peace, Welfare, and Good Government" of the colonies. In the meantime, and until representative assemblies can be called, the inhabitants of the colonies "may confide in Our Royal Protection for the Enjoyment of the Benefit of the Laws of Our Realm of England", a provision that seemed, in Quebec, to repeal the existing laws derived from France. For this purpose, the governors were authorized to set up courts of public justice to hear both criminal and civil cases, "according to Law and Equity, and as near as may be agreeable to the Laws of England". These provisions established the basic constitutional framework of the colony of Quebec. They did not interfere with the separate provisions dealing with Indian nations. On the contrary, the segmented structure of the Proclamation reflected the established practice under which Aboriginal nations were treated as distinct entities, with internal constitutions and laws differing from those of the settler colonies and holding particular relations with the Crown through local representatives. This state of affairs is reflected in royal instructions to the governor of Quebec a few months later. The King states: And whereas Our Province of Quebec is in part inhabited and possessed by several Nations and Tribes of Indians, with whom it is both necessary and expedient to cultivate and maintain a strict Friendship and good Correspondence, so that they may be induced by Degrees, not only to be good Neighbours to Our Subjects, but likewise themselves to become good Subjects to Us; You are therefore, as soon as you conveniently can, to appoint a proper Person or Persons to assemble, and treat with the said Indians, promising

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and assuring them of Protection and Friendship on Our part, and delivering them such Presents, as shall be sent to you for that purpose.28 The King directs the governor to gather information about these bodies of Indians, "of the manner of their Lives, and the Rules and Constitutions, by which they are governed or regulated", thus recognizing their particular governmental structures and laws. The instructions go on to state: "And You are upon no Account to molest or disturb them in the Possession of such Parts of the said Province, as they at present occupy or possess".29 There was a basic difference between the constitutions of Aboriginal nations protected by the Crown and the constitutions of the settler colonies. The latter stemmed largely, if not entirely, from explicit grants, in the form of royal charters, proclamations, commissions, instructions, or acts of Parliament, as supplemented by basic unwritten principles. By contrast, the constitutions of Aboriginal nations sprang from their own internal arrangements and philosophies and were nourished by their inherent powers as selfgoverning nations. These powers were modified over time by relations with the Crown and by certain customary principles generated by Aboriginal/Crown practice. Nevertheless, through all these changes, Aboriginal constitutions retained their original roots within the communities concerned. The Royal Proclamation seemed to have the effect of introducing English law into the colony of Quebec, thus sweeping away the original laws of the province. This drastic effect was largely reversed by the Quebec Act of 1774, which restored the "Laws and Customs of Canada" in all matters relating to property and civil rights. This provision allowed the modern civil law system of Quebec to develop. The act also repealed the Royal Proclamation's constitutional provisions relating to Quebec.30 However, the act did not affect the Indian provisions of the Proclamation, which remained in force. Looking back, we can see that the vision embodied in the Royal Proclamation of 1763 was coloured by the imperial outlook of Great Britain. Nevertheless, it is also possible to see it as having certain points of correspondence with the traditional Haudenosaunee image of the tree of peace. This image was expressed by the Onondaga sachem, Sadeganaktie, during negotiations with the English at Albany in 1698: ...all of us sit under the shadow of that great Tree, which is full of Leaves, and whose roots and branches extend not only to the Places and Houses where we reside, but also to the utmost limits of our great King's dominion of this Continent of America, which Tree is now become a Tree of Welfare and Peace, and our living under it for the time to come will make us enjoy more ease, and live with greater advantage than we have done for several years past.31 There is no question that the political arrangements entered into by the Crown and the Aboriginal nations with which it was associated were unique for the times. While reminiscent in many ways of the established practices of European nations among themselves, in important respects the arrangements reflected the unusual and unforeseen circumstances in which Aboriginal and non-Aboriginal societies found themselves on the

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North American continent. As shown by the account of first contact with the Innu and Wendat, policy was often made on the spot in response to the concrete conditions encountered by two different societies sharing a common environment and with shared commercial and military aspirations. The Royal Proclamation of 1763 was itself yet another creative response to the actual conditions in North America. It should not be surprising to learn, then, that treaties between the Crown and Aboriginal nations were also just such a creative and mutually adaptive process for regulating their overall relationship. Not all treaties were the same, and not all were made at the same time or for the same purposes. Nonetheless, all have some common characteristics — especially from the perspective of the Aboriginal nations that entered into them. It is to this aspect of the relationship that we now turn.

3. Early Patterns of Treaty Making Treaties between the Aboriginal and European nations (and later between Aboriginal nations and Canada) were negotiated and concluded through a treaty-making process that had roots in the traditions of both societies. They were the means by which Europeans reached a political accommodation with the Aboriginal nations to live in peaceful coexistence and to share the land and resources of what is now Canada. The treaties negotiated over the years are not uniform in nature. In this section, we refer briefly to the treaty-making experience of Aboriginal and European societies before they began to treat with each other and then discuss the types of treaties that emerged in the seventeenth and eighteenth centuries. In Chapter 6, later in this volume, the account of treaty making continues with a description of some major treaties signed in the nineteenth and early twentieth century in Ontario and western and northern Canada. In both accounts, we seek to clarify differences in perspective between treaty nations and the Crown with respect to the substance of the treaties and the nature of treaties as instruments of relationship.

3.1 Prior Traditions of Treaty Making — Confederacies in North America When the Europeans arrived on the shores of North America they were met by Aboriginal nations with well-established diplomatic processes — in effect, their own continental treaty order. Nations made treaties with other nations for purposes of trade, peace, neutrality, alliance, the use of territories and resources, and protection. Since interaction between the nations was conducted orally, and the peoples involved often had different languages and dialects, elaborate systems were adopted to record and maintain these treaties. Oral traditions, ceremonies, protocols, customs and laws were used to enter into and maintain commitments made among the various nations. Aboriginal nations formed alliances and confederacies that continued into the contact period, with treaties serving to establish and solidify the terms of the relationship. 112

Protocols between nations were maintained conscientiously to ensure that friendly and peaceful relations prevailed. The Wendat Confederacy, for instance, dates to 1440 and was made up of four Huron clans that were culturally and linguistically related and already shared similar political institutions. The Wendat Confederacy was a great trading alliance that carried on extensive trade with neighbouring nations such as the Algonquin, Montagnais and Ojibwa. Confederacies often facilitated interaction among member nations and united them for political and military purposes, as well as curbing intertribal aggression and settling grievances. With respect to the Huron, for example, The suppression of blood feuds was supervised by a confederacy council made up of civil headmen from the member tribes, which gathered periodically for feasts and consultations, judged disputes, and arranged for reparations payments as the need arose. ...There is no evidence that the member tribes of a confederacy were bound to help one another in case of attack or to aid each other in their wars; often the foreign policies of the member tribes were very different from one another. Nevertheless, the confederacies did serve to restrain violence among neighbouring tribes and to this degree promoted greater security for all their members. ...Once formed, these confederacies were strengthened by the demands of the fur trade, and became mechanisms for dealing with European colonists. ...While the forging and maintaining of these confederacies are evidence of great political skill, the confederacies themselves were extensions of political institutions already existing at the tribal [nation] level and did not require the formulation of new principles of political organization. These developments encouraged more emphasis on ritualism to promote political and social integration.32 Among nations occupying overlapping territories, confederacies were formed in part to protect boundaries on all sides33 and to regulate resource use within the common area. This was the case for the plains nations, which used large territories for their hunting economies and whose alliances created relationships based on mutual respect and noninterference. One nation could not interfere in the internal affairs of another but might intervene at the request of a member nation. Thus, while confederacies oversaw the external affairs of nations, they respected the internal autonomy of their members. They fostered trade and communications networks that were later adapted for trading purposes with the Europeans. Confederacies shaped treaty arrangements as well.34 Concepts of treaty making were reflected in the languages of the Indian nations. The term used to describe the concept of treaty usually comes from the long history of laws and protocols applied to relations between the Indian Nations. In the Ojibwa language, for

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example, there is a difference between Chi-debahk-(in)-Nee-Gay-Win, an open agreement with matters to be added to it, and Bug-in-Ee-Gay, which relates to 'letting it go'. The Lake Huron Treaty of 1850, according to the oral tradition of the Ojibwa, was to be 'added to'.35

3.2 Prior Traditions of Treaty Making — The European Experience As the political power of the church dwindled and feudal aristocratic hierarchies crumbled, the leaders of the emerging nation-states struggled for survival and trade by making alliances among themselves. Many European treaties of this early nation-building period were constitutive in nature — that is, they secured recognition of the independence and sovereignty of nations both from one another and from the pope. In a process of national consolidation that also involved trading territories and establishing new boundaries, Europe was reorganized from one vast network of small communities, linked by the marriages of princes or nobles and obedience to one church, into a group of large and legally distinct states linked mainly by treaties. The treaties of Westphalia (1648) and the Pyrenees (1659), for example, recognized France and Spain as separate kingdoms with agreed upon borders, while the Treaty of Utrecht (1713) relinquished the succession claims of the French, Spanish and British sovereigns to each other's throne. European jurists began to systematize their understanding of treaty law in the seventeenth century, drawing on Roman legal treatises as well as a growing body of European diplomatic precedents. From Roman law they adopted the essential principle pacta sunt servanda — treaties shall be honoured in good faith. From the struggle to build new, independent nations and the spirit of Renaissance humanism, Europeans drew the conclusion that all nations were to be treated as equal in status and rights, regardless of differences in their wealth, culture or religion. Since all nations were equal, it followed that treaties must be entered into freely, could be terminated only by mutual consent, and could not affect any third parties. Since European nations wished to protect their newly won independence, jurists decided that treaties should be given the interpretation that is least restrictive of the parties' sovereignty. Although both Aboriginal and European nations had used treaties to facilitate arrangements with neighbouring states and nations before sustained contact with each other, they drew upon different traditions of treaty making, reflecting substantial differences in political theory. As will become evident, these were to colour the subsequent history of relations between Europeans and Indigenous peoples in the Americas. The legacy of these differences continues to the present day.

3.3 Pre-Confederation Treaties in Canada The earliest treaty making between Aboriginal and non-Aboriginal peoples in Canada was undertaken in the context of small groups of settlers living on a small portion of the

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land mass of the continent and involved such matters as trade and commerce, law, peace, alliance and friendship, and the extradition and exchange of prisoners. It took place in a time of intense diplomatic and military competition among European powers to claim territory, trade and influence in North America. In this context, economic and strategic ties with Indian nations became important, for the Europeans needed treaties to justify their competing territorial claims and to garner allies for their struggle. As long as their colonies were small and vulnerable, they eagerly entered into treaties with due consideration to the terms, and according to such protocols, as Indian nations wished. The principal alliances of the French with the Innu (Montagnais), Algonquin and Wendat (Huron) were economic and military in nature. As we have described earlier, the basis for the economic alliance was the fur trade, which developed as a mutually beneficial enterprise. Trade, friendship and alliance were the foundations upon which this new relationship was built.36 The military aspect of the alliances originated with the French helping their allies in conflicts with the Haudenosaunee in return for commercial privileges. The French, however, soon came to rely heavily on their partners to counter British expansionism.37 In this case, the interests of the French and their allies were common, because the expanding territorial aspirations of the burgeoning settler population of New England were also a threat to Aboriginal interests. Less numerous than the Aboriginal people and...the British settlers, the French could do nothing without the support of the Indian nations from which they drew their strength. And this strength rested on the ability of the French to exercise their leadership so as to maintain consensus about their objectives. Onontio [the Aboriginal name for a viceroy of New France] could not force his allies to make war, and indeed, those allies often opted for peace or neutrality, against the wishes of the French. [translation]38 These alliances were concluded and renewed through formal protocols involving oral pledges and symbolic acts and were sometimes recorded on wampum, but they were usually not written down. Like written treaties, however, the alliances created reciprocal obligations for the parties. These obligations were accepted through protocols such as gift giving, which acted as a form of ratification of the obligations outlined orally.39 Although these agreements addressed matters of economic and military alliance, the first written treaties were signed in the interests of making or renewing peace between nations at war. Thus the first written treaties between the French and the Haudenosaunee, in 1624, 1645 and 1653, were essentially non-aggression pacts that had little lasting success. French conflicts with the Haudenosaunee, which began in 1609, would last until 1701, when both parties, along with the Aboriginal members of the French alliance, signed the Great Peace of Montreal, which established Haudenosaunee neutrality in any conflict between England and France. The British view of treaties was that once a treaty was signed it would remain in effect — more or less in a steady state — until definite action was taken by one or both sides to

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change it. In contrast, the Iroquoian view was that alliances were naturally in a constant state of deterioration and in need of attention. Wampum belts, given and received to confirm agreements, depicted symbols of the dynamic state of international relationships. The path and the chain were recurring symbols of relationship in Iroquois treaty making. Speeches recorded by colonial officials in their accounts of treaty councils made frequent reference to clearing obstructions from the path and polishing the covenant chain that bound the treaty participants together in peace.40 According to Iroquois oral tradition, a belt consisting of two rows of coloured wampum (discussed in the previous chapter) recorded a treaty between the Mohawk and Dutch colonists in 1613,41 as well as subsequent agreements concluded with the French and the British. A description of the Two Row Wampum, symbolizing peace and friendship, appeared in Indian Self-Government in Canada, the report of a special parliamentary committee. It read, in part: There is a bed of white wampum which symbolizes the purity of the agreement. There are two rows of purple, and those two rows have the spirit of your ancestors and mine. There are three beads of wampum separating the two rows and they symbolize peace, friendship and respect. These two rows will symbolize two paths or two vessels, travelling down the same river together. One, a birch bark canoe, will be for the Indian people, their laws, their customs and their ways. The other, a ship, will be for the white people and their laws, their customs and their ways. We shall each travel the river together, side by side, but in our own boat. Neither of us will try to steer the other's vessel.42 Although the minutes of councils recorded by colonists often mentioned the point at which belts and strings of wampum were passed across the council fire, the wampum themselves were seldom described in sufficient detail to make it possible to identify a link between a specific string or belt and a particular historical occasion.43 The first full description of Iroquois treaty processes in which presentation of wampum formed a central part of the protocol dates from 1645.44 The familiarity of French participants with the reciprocal behaviour required in the course of ceremonies where wampum was presented indicated that wampum protocols were well established by this time. The Silver Covenant Chain is another wampum belt that figured large in the history of relations between colonists, the Iroquois and Iroquois allies. The belt shows two figures, one dark and one white, joined by a strand of purple shells on a white ground. The colonists and the Indians are said to be joined by a silver covenant chain that is sturdy and does not rust but requires periodic 'polishing' to remove tarnish and restore its original brightness. References to the Covenant Chain became prominent in treaty history after the negotiation of accords at Albany in 1677, signifying "a multiparty alliance of two groupings of members: tribes, under the general leadership of the Iroquois, and English

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colonies, under the general supervision of New York. As in the modern United Nations, no member gave up its sovereignty."45 For the Iroquois and their allies, the covenant chain terminology, the recollection of an honourable relationship between nations, and reminders that friendship requires attention and care continued as part of their diplomatic discourse long after the particular alliances memorialized in the wampum belt had dissipated. The complexity of Aboriginal/European diplomacy during this period is further exemplified by the Mi'kmaq treaties. It is believed that Jacques Cartier made the earliest recorded contacts with Mi'kmaq leaders in 1534. At first, the Catholic church (along with some private traders granted monopoly rights) managed diplomacy with Aboriginal nations on behalf of France's Catholic king, just as it did for Catholic Spain in much of South America. This led to the baptism of the influential Mi'kmaq leader Membertou in 1610 and to an alliance or treaty between the Catholic church and the Mi'kmaq Nation, apparently recorded on wampum. The importance of these events is upheld by Mi'kmaq oral tradition and lies at the root of the continuing faith of the Mi'kmaq in Catholicism. As the English colonies gradually dislodged France from the east coast and the future province of Quebec, the British Crown replaced the French sovereign in a new round of alliances. To the south, English colonists were entering into treaties with Aboriginal nations in the early seventeenth century in Virginia, Massachusetts Bay and Pennsylvania. By 1725, this evolving treaty network was extended, through treaties negotiated by representatives of the colony of Massachusetts, to the southern-most members of the Wabanaki Confederacy — an alliance that stretched from Maine to the Maritimes and included members such as the Penobscot, Passamaquoddy, and Wuastukwiuk (Maliseet) nations.46 The Mi'kmaq were allies of the Confederacy with strong political, economic and military links to it. In the negotiation of the 1725 treaty, which addressed matters of peace and friendship, representatives of the Penobscot acted as spokespersons for other nations. Representatives of the Mi'kmaq then ratified the treaty in several subsequent councils between 1726 and 1728. The treaty-making tradition between representatives of the British Crown and the Mi'kmaq continued in the middle decades of the 1700s, following a pattern in which some matters addressed in earlier treaties were reaffirmed while changing conditions gave rise to agreement on new issues. Thus, after the British established themselves in Halifax in 1749, new treaty discussions began, and in 1752 an important treaty was signed by the influential Mi'kmaq chief, Jean Baptiste Cope. This treaty is notable for its provisions concerning liberty of trade and British promises to establish a truck house for that purpose. The parties also agreed to come back on an annual basis to discuss matters of mutual concern and to come to new agreements — a provision that has been revitalized in contemporary times by the Mi'kmaq, who invite representatives of the Crown and of the governments of the day to join them for Treaty Day celebrations on the first day of October each year. Issues of trade, such as the actual establishment of truck houses and the prices of fur and other items, would figure prominently in a further series of treaties signed in 1760-61.

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It appears that European and Aboriginal interpretations of their agreements, whether written or not, differed on some key issues. The two principal ones were possessory rights to the land and the authority of European monarchs or their representatives over Aboriginal peoples. In general, the European understanding — or at least the one that was committed to paper — was that the monarch had, or acquired through treaty or alliance, sovereignty over the land and the people on it. The Aboriginal understanding, however, recognized neither European title to the land nor Aboriginal submission to a European monarch. As Chief Justice Marshall of the U.S. Supreme Court wrote in 1823 (see Chapter 3), the European nations embraced the principle "that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession."47 This doctrine also gave the discovering European nation the exclusive right "of acquiring the soil from the natives." The European doctrine of discovery resulted in an impairment of the rights of Indigenous peoples. Although they continued to be regarded as "the rightful occupants of the soil", with "a legal as well as a just claim to retain possession", they ceased to be free to dispose of the soil to "whomsoever they pleased" and were compelled to deal with the European power that had, at least in European eyes, 'discovered' their land. Indigenous nations, however, did not regard the arrival of European traders, adventurers, diplomats or officials as altering in any way their sovereignty or their ownership of their territories. Examples of these divergent understandings abound. Thus, while the French symbolically erected crosses emblazoned with the coat of arms of their monarch, and later drew up deeds of possession for Aboriginal lands, a Wendat chief clarified to the governor in 1704 that "this land does not belong to you...it belongs to us and we shall leave it to go where we may please, and no one can object." [translation]48 In 1749, a Mi'kmaq chief made a declaration of principle to the English, who had presumed the right to occupy mainland Nova Scotia under the Treaty of Utrecht. This land, over which you now wish to make yourself the absolute master, this land belongs to me, just as surely as I have grown out of it like the grass, this is the place of my birth and my home, this is my native soil; yes, I believe that it was God that gave it to me to be my country forever. [translation]49 Such differences in interpretation were rooted in the respective historical and cultural backgrounds of the participants. For example, the Aboriginal conception of land and its relationship with human beings was based on the concept of communal ownership of land and its collective use by the human beings, animals and trees put there by the Creator. While people could control and exercise stewardship50 over a territory, ultimately the land belonged to the Creator — who had given the land to the people, to care for in perpetuity — and was thus inalienable. French views, by contrast, were grounded in that country's feudal history, in which the suzerain, or ruler, not only had a form of land ownership but also had political authority over his vassals.

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These incongruities could co-exist without creating conflict because, for the most part, the parties were unaware of the significant differences in interpretation. Indeed, the deep differences in world view may have gone unexpressed simply because they were so fundamental and so different. Europeans may have been literally unable to conceive of the possibility that they were not discoverers who brought light into a dark place, faith into a heathen place, law into a lawless place. Indigenous nations equally could not conceive that their nationhood or their rights to territory could be called into question. They naturally had no concept that their land had been 'undiscovered' before Europeans found their way to it. There was also a considerable discrepancy between official communications and the dialogue with Aboriginal nations. According to Lajoie and Verville, the French claim to sovereignty over the land and its people was confined to their discourse, a discourse destined for their European competitors, recorded only in the accounts and petitions they sent to their principals in the mother country and that they took good care to withhold from the Aboriginal people. Nor was it revealed in their practices.51 The reality is that the French were members of an alliance of independent nations and were economically and militarily dependent on a co-operative relationship. They had no sovereign power beyond the areas of French settlement. To attempt to exert such powers in practice, or to express clearly that they were not just using the land but appropriating it, would have endangered their alliance and might, if the message was understood, "have sufficed to get the small contingent of French colonists hurled into the sea."52 The European claim to sovereignty over the land and the people may have appeared in the written terms of the treaty,53 but it is not clear that this claim was communicated orally. To the contrary, it would appear that the Aboriginal signatories were unaware that such concepts were embodied in written treaties. Land use arrangements between European powers and Aboriginal nations in the early contact period were arrived at orally and, later, through written documents that the Aboriginal parties may not have comprehended fully at the time. A letter from a representative of the Penobscot nation to the lieutenant governor of Massachusetts, for instance, concerning the ratification of the 1725 Boston-Wabanaki Treaty, spoke of a significant divergence between the oral agreement as understood by the Penobscot and the contents of the written treaty: Having hear'd the Acts read which you have given me I have found the Articles entirely differing from what we have said in presence of one another, 'tis therefore to disown them that I write this letter unto you.54 As well, French-speakers in attendance at the treaty ratification indicated that the aspects of the treaty concerning political and legal submission were not articulated. Rather it was emphasized that the Aboriginal participants had "come to salute the English Governor to

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make peace with him and to renew the ancient friendship which had been between them before."55 Although the political discourse between Europeans and Aboriginal nations was based on mutual respect and recognition of their powers as nations, the discourse between the colonial powers embodied their claim to sovereign authority over the Aboriginal nations. It is apparent that Aboriginal people did not infer or accept a relationship of domination, nor did the Europeans, in practice, try to impose one in this early period of interaction. Indeed, their discourse and alliances with the Aboriginal nations were based on principles of equality, peace and mutual exchange.

3.4 Understanding Treaties and the Treaty Relationship We have noted that differences in the interpretation of treaties have arisen because of differing cultural traditions, for example, with respect to the relationship of humankind to the land. Divergent understandings extended to other matters as well. From an Aboriginal treaty perspective, European rights in the Americas — to the use of lands and resources, for example — did not derive legitimately from international law precepts such as the doctrine of discovery or from European political and legal traditions. Rather, the historical basis of such rights came about through treaties made with Aboriginal nations. In this view, the terms of the treaties define the rights and responsibilities of both parties. It is as a result of the treaties that Canadians have, over time, inherited the wealth generated by Aboriginal lands and resources that Aboriginal nations shared so generously with them. Thus, although the term 'treaty Indians' is commonly (if somewhat misleadingly) used to refer to members of Indian nations whose ancestors signed treaties, Canadians generally can equally be considered participants in the treaty process, through the actions of their ancestors and as the contemporary beneficiaries of the treaties that gave the Crown access to Aboriginal lands and resources.56 In the tradition of Indian nations, treaties are not merely between governments. They are made between nations, and every individual member of the allied nations assumes personal responsibility for respecting the treaty. This is why, for example, the putu's — or treaty-keeper — among the Mi'kmaq would read the wampum treaties to the people every year, so that they would behave properly when travelling through the territories of their allies. Treaties among Indian nations specified the ceremonies, symbols and songs that would be used by individuals to demonstrate, at all times, their respect for their obligations. Among Europeans, the average citizen took no part in making treaties and knew little about the treaties that had been made. It was left to heads of state and governments to remember, and implement, national obligations. To the Aboriginal nations, treaties are vital, living instruments of relationship. They forged dynamic and powerful relationships that remain in effect to this day. Indeed, the

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spirit of the treaties has remained more or less consistent across this continent, even as the terms of the treaties have changed over time. Canadians and their governments, however, are more likely to look on the treaties as ancient history. The treaties, to Canada, are often regarded as inconvenient and obsolete relics of the early days of this country. With respect to the early treaties in particular, which were made with the British or French Crown, Canadian governments dismiss them as having no relevance in the post-Confederation period. The fact remains, however, that Canada has inherited the treaties that were made and is the beneficiary of the lands and resources secured by those treaties and still enjoyed today by Canada's citizens. A final source of misunderstanding about treaties lies in the fact that the relationship created by treaty has meaning and precedent in the laws and way of life of the Indian nations for which there are no equivalents in British or Canadian traditions. One aspect of treaty making that is little understood today is the spiritual aspect of treaties. Traditional Aboriginal governments do not distinguish between the political and the spiritual roles of the chiefs, any more than they draw a sharp demarcation line between the physical and spirit worlds. Unlike European-based governments, they do not see the need to achieve a separation between the spiritual and political aspects of governing: Everything is together — spiritual and political — because when the Creator...made this world, he touched the world all together, and it automatically became spiritual and everything come from the world is spiritual and so that is what leaders are, they are both the spiritual mentors and the political mentors of the people.57 This integration of spiritual and political matters extends to treaty making, where sacred wampum, sacred songs and ceremonies, and the sacred pipe are integral parts of making the commitment to uphold the treaty. In affirming these sacred pacts, the treaty partners assured one another that they would keep the treaty for as long as the sun shines, the grass grows and the waters flow. What sacred pacts, symbols and things of concrete value did the Crown bring to treaty making? The Crown's representatives gave their word and pledged to uphold the honour of the Crown. The symbols of their honour and trustworthiness were the reigning king or queen in whose name the treaty was being negotiated and with whose authority the treaty was vested. Missionaries were a testament to the integrity of the vows that were made and witnesses to the promises that were to be kept. Outward symbols, like flags, the red coats, treaty medals, gifts and feasts were also part of the rituals. While European treaties borrowed the form of business contracts, Aboriginal treaties were modelled on the forms of marriage, adoption and kinship. They were aimed at creating living relationships and, like a marriage, they required periodic celebration,

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renewal, and reconciliation. Also like a marriage, they evolved over time; the agreed interpretation of the relationship developed and changed with each renewal and generation of children, as people grew to know each other better, traded, and helped defend each other. This natural historical process did not render old treaties obsolete, since treaties were not a series of specific promises in contracts; rather they were intended to grow and flourish as broad, dynamic relationships, changing and growing with the parties in a context of mutual respect and shared responsibility. Despite these differences, Europeans found no difficulty adapting to Aboriginal protocols in North America. They learned to make condolence before a conference with the Six Nations, to give and receive wampum, to smoke the pipe of peace on the prairies, to speak in terms of 'brothers' (kinship relations), not 'terms and conditions' (contract relations). Whatever may have come later, diplomacy in the first centuries of European contact in North America was conducted largely on a common ground of symbols and ceremony. The treaty parties shared a sense of solemnity and the intention to fulfil their promises. The apparent common ground was real, but under the surface the old differences in world view still existed, largely unarticulated. Fundamentally, the doctrine of discovery guided the European understanding of the treaties. They were to legitimize European possession of a land whose title was already vested in a European crown. The indigenous understanding was different. Indigenous territories were to be shared; peace was to be made and the separate but parallel paths of European and indigenous cultures were to be followed in a peaceful and mutually beneficial way.

4. Conclusion As the accounts in this chapter have illustrated, the relationship that developed in this initial period of contact was far from perfect. It was prompted less by philosophy than by pragmatism and was often coloured by profound, culturally based misunderstandings as well as by incidents of racism and outright hostility between Aboriginal and nonAboriginal people. For these and other reasons, the overall relationship was not uniform in shape throughout the period or in all locations. Nevertheless, it had certain features that are important to highlight. In the political realm, it was a relationship established between representatives of European and Aboriginal nations. Despite their clear imperial ambitions, in practice the colonizing European powers recognized Aboriginal nations as protected yet nonetheless autonomous political units, capable of governing their own affairs and of negotiating relationships with other nations. In the case of the British Crown in particular, it also included the important recognition that Aboriginal nations were entitled to the territories in their possession, unless these were properly ceded to the Crown. In the economic realm, the relationship was characterized by considerable interdependence, a complementarity of roles and some mutual benefit. This is not to say that there was no change in pre-existing Aboriginal patterns, for clearly there was

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substantial change. The new economy drew Aboriginal people into the production of staples for markets using technologies derived from European techniques or resulting from North American innovations. This led to over-exploitation of resource as well as exposure to the boom and bust cycles typical of staples economies. In these respects the new economy diverged from the Aboriginal tradition of more balanced harvesting of natural resources, typical of Aboriginal hunting and gathering economies. Nevertheless, the fur trade and other natural resource harvesting of the time was part of a commercial economy that was more compatible with maintaining traditional Aboriginal ways of life than was the economy of expanding settlement and agriculture that was to replace it. It was an economy of interdependence from which both sides derived benefits through the exchange of foods, clothing, manufactured goods and technologies. Nor were European and colonial societies immune from the effects of the new economy developing in North America. Fish became plentiful and new products — tobacco, potatoes and corn, to name a few — were introduced to European and colonial markets along with an abundant supply of furs that influenced European fashion and lifestyles, making fur affordable and accessible to the middle classes for the first time.58 Commercial activity in Europe was stimulated, with banks, joint stock companies and trading consortiums developing rapidly to raise the capital necessary for North American ventures. Colonial societies profited from this economic expansion, establishing firmer roots in North American soil and leading the way into the interior of the vast continent in search of new opportunities, which repeated the contact and co-operation phase as more Aboriginal peoples were drawn into the colonial economic orbit. Although practical accommodations between Aboriginal and non-Aboriginal societies were reached in the initial contact period, it does not necessarily follow that Aboriginal and European participants had the same perspective on the agreements reached between them. Fundamental differences in outlook between western and Aboriginal societies, rooted in the previous period of separate social, political and cultural development, continued into the period of early contact, influencing the interpretation of events and agreements on both sides. This led inevitably to misunderstandings, many of which continue to have repercussions today. European attitudes of superiority and imperial ambitions often posed challenges to Aboriginal peoples' perception of the nature of the overall relationship, but Aboriginal peoples' relative strength and adaptive capacity permitted them to maintain these ties on a rough basis of equality well into this stage of contact and co-operation. The most pervasive and sustained attack on the respectful, egalitarian, nation-to-nation principles of the relationship was yet to come, however. As the 1700s drew to a close, there were increasing signs of a shift in the relationship. Indeed, the Royal Proclamation of 1763 itself, despite its status as a key document recognizing Aboriginal nations as autonomous political units with rights to the peaceful possession of their lands, shows signs of ambivalence. Its opening paragraph refers to Aboriginal nations but also uses the lesser term "Tribes of Indians". Moreover, while there is reference to the Indian interest in the land ("lands not having been ceded to, or

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purchased by Us"), there is also reference to the provision that they "should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories..." — phrasing that implies that the British claimed sovereign title to lands, including those inhabited by the Indians. The paradoxes and unresolved issues of this period of contact and co-operation could not remain hidden long. Indeed, in the next stage, displacement, they burst out into the open. The relationship between Aboriginal and non-Aboriginal peoples was changing. Confronted with a powerful and growing colonial society, the strength of Aboriginal nations was in decline. The colonial society was ready to test its strength in ways that would have profound implications for the relationship that had served both Aboriginal and non-Aboriginal peoples fairly well up to that point.

Notes: 1 See Robert McGhee, “Contact Between Native North Americans and the Medieval Norse: A Review of the Evidence”, American Antiquity 49/1 (January 1984), pp. 4-26. 2 J.R. Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada, revised edition (Toronto: University of Toronto Press, 1989), p. 24. 3 R. Hakluyt, Voyages Touching the Discovery of America (1582) (London: Hakluyt Society Publications, 1850), pp. 21-22, quoted in L.C. Green and Olive P. Dickason, The Law of Nations and the New World (Edmonton: University of Alberta Press, 1989), p. 19. 4 This did not prevent Europeans from being drawn into existing conflicts (an example was Champlain’s alliance with the Algonquin and Montagnais against the Iroquois) or Indian nations becoming partisans in wars among European nations. For further details on French-Aboriginal relations in this period, see Andrée Lajoie and Pierre Verville, “Treaties of Alliance between the French and the First Nations under the French Regime”, research study prepared for the Royal Commission on Aboriginal Peoples [RCAP], in Andrée Lajoie, Jean-Maurice Brisson, Sylvio Normand and Alain Bissonnette, Le statut juridique des autochtones au Québec et le pluralisme (Cowansville, Quebec: Éditions Yvon Blais, forthcoming); and Denys Delâge, “Epidemics, Colonization, Alliances: Natives and Europeans in the Seventeenth and Eighteenth Centuries”, research study prepared for RCAP (1995). For information about research studies prepared for RCAP, see A Note About Sources at the beginning of this volume. 5 Miller, Skyscrapers Hide the Heavens (cited in note 2), p. 40. 6 Estimates of the Aboriginal population at the time of initial contact and its subsequent decline were discussed in Chapter 2.

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7 Haudenosaunee Confederacy, oral presentation, Minutes of Proceedings and Evidence of the Special Committee on Indian Self-Government, issue 31 (31 May-1 June 1983), p. 13. 8 Miller, Skyscrapers Hide the Heavens (cited in note 2), pp. 44, 45. 9 Gabriel Sagard-Théodat, Histoire du Canada et voyages que les Frères Mineurs Recollects y ont faicts pour la (Paris: 1636), trans. H.H. Langton, University of Toronto Library, manuscript 7, p. 321, quoted in James Axtell, The Invasion Within: The Contest of Cultures in Colonial North America (New York: Oxford University Press, 1985), p. 44.

conversion des infidèlles

10 Eleanor Leacock, “Seventeenth-Century Montagnais Social Relations and Values”, in 6, “Subarctic”, ed. June Helm (Washington: Smithsonian Institution, 1981), p. 190. Handbook of North American Indians, volume

11 Paul le Jeune, in Reuben Gold Thwaites, ed., Travels and Explorations of the Jesuit Missionaries in New France, 1610-1791: The Jesuit Relations and Allied Documents (Cleveland: The Burrows Brothers Company, 1896-1901), volume 29 (1898), “Iroquois, Lower Canada, Hurons, 1646”, p. 221 [translation]. 12 Their own name for themselves alludes to their position as people of Turtle Island. Turtle Island is a term used by many First Nations people to refer to North America. In some origin stories, the continent itself was formed, and is said to be supported still, on the back of a turtle. In other traditions, the physical features of the continent at its extremities are likened to the feet, interior land formations are comparable to the shell, and the groupings of people on distinct territories are similar to the markings on the back of a turtle. The term is favoured by many First Nations people because it signifies the perception of the land as a living entity and is a reminder of the co-operative relationships that support life. 13 Bruce G. Trigger, The Huron: Farmers of the North, second edition (Toronto: Harcourt Brace Jovanovich College Publishers, 1990), p. 12. 14 Trigger, The Huron, p. 19. See also Georges E. Sioui, For an Amerindian Autohistory, An Essay on the (Montreal and Kingston: McGill-Queen’s University Press, 1992), p. 87. Foundations of a Social Ethic

15 Thwaites, Travels and Explorations of the Jesuit Missionaries (cited in note 11), volume 5 (1897), “Quebec: 1632-1633”, pp. 119-121. 16 Jean de Brébeuf, in Thwaites, Travels and Explorations, volume 10 (1897), “Hurons: 1636”, p. 147 [translation]. 17 Paul le Jeune, in Thwaites, Travels and Explorations, volume 6, “Quebec: 1633-1634”, p. 181 [translation]. 18 See Lajoie et al., Le statut juridique des autochtones (cited in note 4).

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19 Quoted in Cornelius J. Jaenan, “French Sovereignty and Native Nationhood During the French Regime”, Native Studies Review 2/1 (1986), p. 100. 20 Text in Leonard W. Labaree, ed., Royal Instructions to British Colonial Governors, 1670-1776 (New York: Appleton-Century-Crofts, 1935; reprinted, Octagon Books, Inc., 1967), volume 2, ¤673, p. 469. This provision remained in force with minor variations until at least the 1770s. 21 Labaree, Royal Instructions, p. 469. 22 Text in E.B. O’Callaghan, ed., Documents Relative to the Colonial History of the State of New York, 11 volumes (Albany: Weed Parsons & Co., 1856-1861), volume 3, pp. 64-65. 23 Text in William H. Whitmore, ed., The Colonial Laws of Massachusetts (Boston: City Council of Boston, 1889), p. 160. 24 Text in Nathaniel B. Shurtleff, ed., Records of the Governor and Company of the Massachusetts Bay in New England, 1628-1686, 5 volumes (Boston: Press of William White, 1853-54), volume 4, part II (1661-74), p. 213 [spelling modernized]. 25 Egremont to the Lords of Trade, 5 May 1763, in Adam Shortt and Arthur G. Doughty, ed., Documents Relating to the Constitutional History of Canada, 1759-1791, second edition (Ottawa: King’s Printer, 1918), part 1, pp. 128-129. Lord Egremont was the secretary of state for the southern department and as such was responsible for the North American colonies. 26 Calder v. Attorney-General of B.C., [1973] Supreme Court Reports 313 at 394-395. This passage was quoted with approval by Lord Denning, M.R., in R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta and others, [1982] 2 All England Law Reports 118 at 124-125, who also stated (p. 124), “To my mind the royal proclamation of 1763 was equivalent to an entrenched provision in the constitution of the colonies in North America. It was binding on the Crown — so long as the sun rises and the river flows’.” 27 Text in Clarence S. Brigham, ed., British Royal Proclamations Relating to America, volume 12, Transactions and Collections of the American Antiquarian Society (Worcester, Mass.: American Antiquarian Society, 1911), pp. 212-218. See Appendix D to this volume. 28 Instructions to Governor Murray of Quebec, 7 December 1763, article 60; text in Shortt and Doughty (cited in note 25), volume I, p. 181 at 199. 29 Instructions, article 61, p. 199. 30 14 George III, chapter 83 (U.K.), sections 8 and 4. 31 Quoted in Donald A. Grinde, Jr. and Bruce E. Johansen, Exemplar of Liberty: Native America and the Evolution of

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(Los Angeles: University of California, American Indian Studies Center, 1991), pp. 11-12, citing “Propositions made by the Five Nations of Indians” [Albany, 20 July 1698], Indian Boxes, box 1, Manuscript Division, New York Public Library.

Democracy

32 Bruce G. Trigger, The Children of Aataentsic: A History of the Huron People to 1660 (Montreal and Kingston: McGill-Queen’s University Press, 1976), pp. 162, 163, 842. 33 Karl N. Llewellyn and E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman, Oklahoma: University of Oklahoma Press, 1941). See also John Henry Provinse, “The Underlying Sanctions of Plains Indian Cultures”, thesis, University of Chicago, 1934; John C. Ewers, The Blackfeet: Raiders on the Northwestern Plains (Norman, Oklahoma: University of Oklahoma Press, 1958); and John C. Ewers, The Horse in Blackfoot Indian Culture, With Comparative Material From Other Western Tribes (Washington, D.C.: U.S. Government Printing Office, 1955). 34 Raymond W. Wood, Contrastive Features of Native North American Trade Systems, University of Oregon, Anthropological Papers, volume 4 (1972), pp. 153-169. 35 James Morrison, “The Robinson Treaties of 1850: A Case Study”, research study prepared for RCAP (1994). 36 Delâge, “Epidemics, Colonization, Alliances” (cited in note 4). 37 Lajoie and Verville, “Treaties of Alliance” (cited in note 4). 38 Delâge, “Epidemics, Colonization, Alliances” (cited in note 4), references omitted. 39 Lajoie and Verville, “Treaties of Alliance” (cited in note 4). 40 Michael K. Foster, “Another Look at the Function of Wampum in Iroquois-White Councils”, in The History and Culture of Iroquois Diplomacy: An Interdisciplinary Guide to the Treaties of the Six Nations and Their League, ed. Francis Jennings, William N. Fenton, Mary A. Druke, and David R. Miller (Syracuse: Syracuse University Press, 1985), p. 110. 41 See the presentation by Onondaga scholar Oren Lyons in RCAP transcripts, Akwesasne, Ontario, 3 May 1993. Transcripts of the Commission’s hearings are cited with the speaker’s name and affiliation, if any, and the location and date of the hearing. See A Note About Sources at the beginning of this volume for information about transcripts and other Commission publications. 42 House of Commons, Special Committee on Indian Self-Government, Indian Self-Government in Canada, Report of the Special Committee (Ottawa: Queen’s Printer, 1983), back cover. 43 Foster, “Another Look at the Function of Wampum” (cited in note 40), pp. 100, 112.

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44 See “Treaty of Peace Between the French, the Iroquois, and Other Nations”. Written originally in French and Latin, the text was translated into English and published in Thwaites, Travels and Explorations (cited in note 11), volumes 27 and 28. The account is reprinted in Jennings, Iroquois Diplomacy (cited in note 40), pp. 137-153. 45 Francis Jennings, “Iroquois Alliances in American History”, in Iroquois Diplomacy, p. 38. 46 Bill Wicken and John G. Reid, “An Overview of the Eighteenth-Century Treaties Signed Between the Mi’kmaq and Wuastukwiuk Peoples and the British Crown, 17251928”, research study prepared for RCAP (1993). Indeed, the treaty relationship involving the Wuastukwiuk people began well before 1725, stretching back to the late 1600s and including their presence at a treaty signing in 1713. 47 Johnson v. McIntosh, 8 Wheaton 543 (1823) at 573 and following. 48 Delâge, “Epidemics, Colonization, Alliances” (cited in note 4). 49 Olive Patricia Dickason, “Louisbourg and the Indians: A Study of Race Relations of France 1713-1760”, History and Archaeology 6 (Ottawa: Parks Canada, 1976). 50 Stewardship is used here to underscore the Indian nations’ rootedness in the land. As we saw in our discussion of the Blackfoot Confederacy in Chapter 4, the Indian nations saw themselves as having a profound connectedness with the land, animals, water and plants, as evidenced by their creation stories (which feature long-ago marriages of human and other beings). 51 Lajoie and Verville, “Treaties of Alliance” (cited in note 4). 52 Lajoie and Verville, “Treaties of Alliance”. 53 Many of the early written treaties contained no such references, however. 54 Loron Sagourrat to Dummer (no date), in Documentary History of the State of Maine, volume 23 (Portland: 1916), p. 208, quoted in Wicken and Reid, “An Overview of the EighteenthCentury Treaties” (cited in note 46). 55 “Traité de paix entre les anglois et les abenakis, 1727”, in Collection de manuscrits, volume 3 (Quebec City: 1884), p. 135, quoted in Wicken and Reid, “An Overview of the Eighteenth-Century Treaties”. 56 The term is misleading to the extent that it implies uniformity, for in fact treaties were signed with different Aboriginal nations at different times and with substantially different provisions. 57 Sakorarewate (Tom Porter), “Men Who Are of the Good”, Northeast Indian Quarterly (1988), pp. 8-12.

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58 For a discussion of the contribution of Amerindian crops to the world’s food economy, see Jack Weatherford, Indian Givers: How the Indians of the Americas Transformed the World (New York: Ballantine Books, 1988), pp. 59-78.

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Volume 1 - Looking Forward Looking Back PART ONE The Relationship in Historical Perspective

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Stage Three: Displacement and Assimilation IN THE WANING DECADES of the 1700s and the early years of the 1800s, it became increasingly clear that a fundamental change was occurring in the relationship between Aboriginal and non-Aboriginal peoples. Confined initially to the eastern part of the country, change in the relationship was soon experienced in central Canada as well. At least three factors were at work.

The first was the rapid and dramatic increase in the non-Aboriginal population, owing to the massive influx of Loyalists after the American Revolution and swelling immigration, especially from the British Isles. Beginning in the 1780s, thousands of Loyalists poured into the Maritimes, sharply increasing pressures on the Aboriginal land and resource base. The landless new immigrants pursued agriculture and the export of timber, and although parcels of land had been set aside for the Indian peoples of the region, squatting and other incursions on the Aboriginal land base inevitably occurred. At that time the Mi'kmaq and Maliseet populations were also declining because of disease and other factors, and colonial governments appeared to have neither the will nor the means to counter illegal occupation of the remaining lands of the indigenous population. Lower Canada, with its long-established reserve land policy, was not drastically affected by in-migration. It was different in Upper Canada, however, where reserves were fewer and population pressures proportionately greater. It is estimated that by 1812 the nonAboriginal population of that colony outnumbered the Aboriginal population by as much as 10 to 1, with the ratio increasing further in the ensuing decades.1 Illegal squatting occurred on Indian lands, as in the Maritimes, but it was more common for purchases of Indian lands to be made through the negotiation of treaties. Purchased lands were then made available by the Crown for non-Aboriginal settlement. In addition to the dramatic shift in population ratios, a second and equally important factor undermining the more balanced relationship of the early contact period was change in the colonial economic base. The fur trade was already declining in eastern Canada by the latter part of the 1700s. The 1821 merger of the two major rivals, the North West Company and the Hudson's Bay Company, signalled the end of the Montreal-based fur trade and with it the relative prosperity of the Aboriginal nations dependent on it. The fur trade continued to be important in the north and west for many more decades — indeed, it did not begin in what became British Columbia until the late 1700s.2 But in eastern

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Canada, the fur trade — and the era of co-operative division of labour between Aboriginal and non-Aboriginal people it represented — were over. It was replaced by a new situation, one in which the economies of the two peoples were increasingly incompatible. More and more, non-Aboriginal immigrants were interested in establishing permanent settlements on the land, clearing it for agricultural purposes, and taking advantage of the timber, fish and other resources to meet their own needs or to supply markets elsewhere. They were determined not to be frustrated or delayed unduly by those who claimed title to the land and used it in the Aboriginal way. In something of a return to earlier notions of the 'civilized' and 'savage' uses of land, Aboriginal people came to be regarded as impediments to productive development. Moreover, as Aboriginal economies declined because of the loss of the land, the scarcity of game and the continuing ravages of disease, relief payments to alleviate the threat of starvation became a regular feature of colonial financial administration. In short order, formerly autonomous Aboriginal nations came to be viewed, by prosperous and expanding Crown colonies, as little more than an unproductive drain on the public purse. The normalization of relations between the United States and Great Britain following the War of 1812 was a third factor in the changed relationship that emerged at this time. No longer courted as military allies, a role they had enjoyed for two centuries, First Nations were forgotten for their major contributions in the many skirmishes and battles that were so important in earlier decades. By 1830, in fact, responsibility for 'Indian policy' — formerly a quasi-diplomatic vocation — had been transferred from military to civil authorities. The preoccupation of policy makers turned to social rather than military concerns, and soon schemes were devised to begin the process of dismantling Aboriginal nations and integrating their populations into the burgeoning settler society around them. In retrospect it is clear that the non-Aboriginal settlers, because of their sheer numbers and economic and military strength, now had the capacity to impose a new relationship on Aboriginal peoples. Their motive for so doing was equally clear: to pursue an economic development program increasingly incompatible with the rights and ways of life of the Aboriginal peoples on whose lands this new economic activity was to take place. To justify their actions, the non-Aboriginal settler society was well served by a belief system that judged Aboriginal people to be inferior. Based originally on religious and philosophical grounds, this sense of cultural and moral superiority would be buttressed by additional, pseudo-scientific theories, developed during the nineteenth century, that rested ultimately on ethnocentric and racist premises. The influx of large numbers of settlers, soldiers, administrators and others into lands inhabited by indigenous populations was not, of course, unique to North America. It was a phenomenon of a period of history when European colonial empires expanded worldwide in the second wave of a movement that began in the late 1400s. Nor was the colonization process a uniform one, for it took different forms in different parts of the world.

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In Brazil, for example, the Portuguese imported African slaves to produce crops such as sugar on large plantations run by small numbers of European settlers. In Mexico and much of the rest of Latin America, 'mixed' colonies developed, where a substantial minority of non-indigenous settlers sought to create societies modelled on the Spanish homeland but with an emphasis on absorbing the indigenous population. In other parts of the world, the colonial presence took the form of small settlements involving few settlers and few claims to territory, but emphasizing the development of trading relationships. And in India, the British governed a vast dependency through a relatively small, alien administration.3 Canada, Australia, New Zealand and the United States represented another model of colonial expansion. As with much of Africa, there were few pre-existing centralized state structures among the indigenous inhabitants.4 In addition, Aboriginal population density was low — or fell precipitously as a result of disease after contact — and geographic conditions were considered ideal for European agriculture and ways of life. These territories were targeted for settlement. Not only were they considered worthless without an increase in the size and 'civilization' of the workforce, they also served as safety valves for the rapidly growing population of European home countries. Europe could usefully shed its poorest citizens by offering them land and work in the colonies. Once installed there, they became low-wage producers and high-price consumers of imports from the home economy. Under this policy, even 'gaol birds' could be made useful; prisons were emptied and their populations shipped by the boat load to Virginia and Georgia in the eighteenth century and Australia in the early nineteenth century. Regardless of the approach to colonialism practised, however, the impact on indigenous populations was profound. Perhaps the most appropriate term to describe that impact is 'displacement'. Aboriginal peoples were displaced physically — they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities. They were also displaced socially and culturally, subject to intensive missionary activity and the establishment of schools — which undermined their ability to pass on traditional values to their children, imposed male-oriented Victorian values, and attacked traditional activities such as significant dances and other ceremonies. In North America they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures and processes in favour of colonial-style municipal institutions. In Canada, the period saw the end of most aspects of the formal nation-to-nation relationship of rough equality that had developed in the earlier stage of relations. Paradoxically, however, the negotiation of treaties continued, but side by side with legislated dispossession, through the Indian Act. Aboriginal peoples lost control and management of their own lands and resources, and their traditional customs and forms of organization were interfered with in the interest of remaking Aboriginal people in the image of the newcomers. This did not occur all at once across the country, but gradually even western and northern First Nations came under the influence of the new regime.

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In this chapter, we begin with a brief description of the early legislation that sought to 'civilize' and 'enfranchise' the Aboriginal population in the period leading up to and immediately following Confederation.5 Second, we turn to a short description of the development of Métis culture, economy and self-government in the 1800s. The period of contact and co-operation described in the previous chapter produced not only a unique relationship between Aboriginal and non-Aboriginal people, but also unique Aboriginal populations of mixed ancestry and culture — the Métis Nation in the west and other Métis communities in the east.6 Pressed by the rapid westward expansion of the Canadian federation, the Métis Nation became part of the Canadian nation-building process in the area that would become the prairie provinces and the Northwest Territories. Third, we describe continuation of the treaty-making process in the 1800s and early 1900s, beginning in Ontario and moving west and north. From the Crown perspective it seemed clear that these treaties were little more than real estate transactions designed to free Aboriginal lands for settlement and resource development. From the Aboriginal perspective, however, the process was broader, more akin to the establishment of enduring nation-to-nation links, whereby both nations agreed to share the land and work together to maintain peaceful and respectful relations. Thus, while the treaty process continued to have the trappings of a nation-to-nation relationship among equals, as before, the intentions and perspectives of the two sides diverged. Sharp differences in perspective about the treaty process continue to divide Aboriginal and non-Aboriginal governments today. The fourth section of this chapter begins with a discussion of Confederation, which was a momentous event for non-Aboriginal society but of little positive significance for Aboriginal peoples. Described as a federation of the provinces or a compact between two peoples, the English and the French, it completely excluded Aboriginal peoples as active participants. They and their rights and privileges seem to have disappeared almost completely from the consciousness of Canadians, except for the provision in section 91(24) of the Constitution Act, 1867 making "Indians, and Lands reserved for the Indians" a federal responsibility, an object of future federal legislation. Through the vehicle of the Indian Act and related legislation, section 91(24) served as the source of authority for federal government intervention in the internal affairs of Indian societies, as it attempted to promote the eventual break-up of Aboriginal societies and the assimilation of Aboriginal people into mainstream — that is, non-Aboriginal — society. From the early nineteenth century until about the end of the 1960s, displacement, the downgrading of the relationship, and an overall devaluing of the shared history of Aboriginal and non-Aboriginal peoples in the northern half of the North American continent was accepted in mainstream Canadian society. It is only recently that the full history of the relationship has begun to come to light and an attempt made to come to grips with the implications of the displacement period. Although the descriptions that follow do not paint an attractive picture, these images must be grasped and understood if the current period of negotiation and renewal is to succeed in restoring a balanced relationship between Aboriginal and non-Aboriginal people in Canada.

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1. The Imposition of a Colonial Relationship The general peace ushered in by the end of the War of 1812 and the Napoleonic wars set the stage for dramatic changes in the relationship between Aboriginal and non-Aboriginal people. As immigrants poured in and as the British home government "swept away the paupers" — its surplus people, no longer needed for military campaigning — the settler population in eastern and central Canada grew rapidly, soon outstripping that of the Aboriginal nations in both areas. The fur trade and traditional harvesting economy declined in importance and the need for Aboriginal nations as military allies waned, and soon Aboriginal people were living on the margins of the new colonial economies, treated less and less as nations worthy of consideration in the political councils of the now secure British colonies. Former enemies of the victorious British, the Mi'kmaq and Maliseet, were simply ignored, left to find their own way in the rapidly changing world. Dispossessed of much of their land, separated from resources and impoverished, they were also ravaged by disease, and in the early 1800s they seemed to be on the road to virtual extinction. In Upper Canada, however, in the potentially rich agricultural heartland of the emerging nation, Aboriginal peoples were treated differently. Thus, the Indian affairs department consistently applied the principles of the Royal Proclamation of 1763, recognizing Aboriginal rights to land and self-government. This led to a series of treaties, signed between 1815 and 1825, that cleared the southern part of the colony for settlement. With the two Robinson Treaties in 1850, further territory north of the Great Lakes was opened for resource exploitation and, later, settlement. Since the Royal Proclamation of 1763, the relationship between Aboriginal nations and the British Crown had been one of co-operation and protection. As described earlier, in exchange for co-operation in the partnership that characterized the relationship between them at that time, the King had extended royal protection to Aboriginal lands and political autonomy. After 1830, however, following the change in the relationship just described, a new policy, designed specifically to help Aboriginal people adjust to the new economic and political realities, took hold. Partly humanitarian, partly pragmatic, its goal was to 'civilize' Aboriginal people through educational, economic and social programs delivered primarily by the Christian churches and missionary societies. Thus, the British imperial government, in association with protestant mission societies in the province of Upper Canada, embarked on the new policy of civilization with the willing assistance of many Aboriginal nations.7 Communities in the southern part of Upper Canada were to be located on their reserves in serviced settlement sites, complete with houses, barns, churches and schools, and given training in agriculture and the other arts and crafts of settler life. Indian reserves were not a new factor in relations between the Aboriginal peoples and the newcomers to North America. The French had established the practice of setting aside lands for their Indian allies in New France, believing that a settled and secure environment would promote adoption of Christianity. The Jesuits established the first true

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reserve in this sense in New France, at Sillery, as early as 1637. Others soon followed.8 Thus, when the British embarked on their own program of attempting to convert and civilize the Indians of what is now southern Ontario, they had a precedent to draw upon.9 Throughout the nineteenth century and into the twentieth, first the British Crown and then the new dominion of Canada entered into treaties in Ontario, the prairie provinces and parts of the north, under which Indians agreed to the creation of reserves (along with other benefits) in exchange for their agreement to share their lands and resources with the newcomers. These treaties, described later in this volume, were modelled to a considerable extent on the Robinson treaties (also discussed later), were in written form, and were quite specific about the amount of land to be included in a reserve and the fact that traditional Indian hunting, fishing and trapping activities were not to be interfered with. Letter to Queen Victoria from Louis-Benjamin Peminuit Paul, received in the Colonial Office, London, 25 January 1841.

To the Queen Madame: I am Paussamigh Pemmeenauweet...and am called by the White Man Louis-Benjamin Pominout. I am the Chief of my People the Micmac Tribe of Indians in your Province of Nova Scotia and I was recognized and declared to be the Chief by our good friend Sir John Cope Sherbrooke in the White Man's fashion Twenty Five Years ago; I have yet the Paper which he gave me. Sorry to hear that the king is dead. I am glad to hear that we have a good Queen whose Father I saw in this country. He loved the Indians. I cannot cross the great Lake to talk to you for my Canoe is too small, and I am old and weak. I cannot look upon you for my eyes not see so far. You cannot hear my voice across the Great Waters. I therefore send this Wampum and Paper talk to tell the Queen I am in trouble. My people are in trouble. I have seen upwards of a Thousand Moons. When I was young I had plenty: now I am old, poor and sickly too. My people are poor. No Hunting Grounds — No Beaver — No Otter — no nothing. Indians poor — poor for ever. No Store — no Chest — no Clothes. All these Woods once ours. Our Fathers possessed them all. Now we cannot cut a Tree to warm our Wigwam in Winter unless the White Man please. The Micmacs now receive no presents, but one small Blanket for a whole family. The Governor is a good man but he cannot help us now. We look to you the Queen. The White Wampum tell that we hope in you. Pity your poor Indians in Nova Scotia. White Man has taken all that was ours. He has plenty of everything here. But we are told that the White Man has sent to you for more. No wonder that I should speak for myself and my people. The man that takes this over the great Water will tell you what we want to be done for us. Let us not perish. Your Indian Children love you, and will fight for you

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against all your enemies. My Head and my Heart shall go to One above for you. Pausauhmigh Pemmeenauweet, Chief of the Micmac Tribe of Indians in Nova Scotia. His mark +. Source: Ruth Holmes Whitehead, The Old Man Told Us: Excerpts from Micmac History 1500-1950 (Halifax: Nimbus Publishing Limited, 1991), pp. 218-219.

Not all reserves in Canada were created by treaty, however. Those in Quebec were established by grants from the French Crown to missionary orders, on the theory that the Crown had all right and title to the lands in question. Some in Ontario were created by the purchase of lands outside the traditional territories of the Indian peoples for whom they were intended. The Six Nations reserve at Brantford falls into this category. Purchased originally from the Mississauga of the Credit in 1784, it was granted to the Six Nations by the Crown in 1788. Other reserves were created by order in council as circumstances required, and a few others were established by trust agreements with missionary societies, which were to hold the lands for the benefit of their Indian charges. There were even a few instances of Indian bands purchasing privately held lands using their own monies, with the reserves then being held by the Crown for their benefit.10 In the Atlantic region there were no treaties under which reserves were created. On the cession of Acadia to Great Britain by France, the British view was that there was no requirement to treat with the Mi'kmaq and Maliseet nations for their lands. Never protected by imperial authorities to the same extent as the western First Nations, the relatively small remaining Aboriginal population in the Maritimes was scattered and isolated and, by the early 1800s, decimated by epidemics and considered to be headed for extinction. Indian administration was decentralized, and there was no imperial Indian department,11 so there was no regular allocation of imperial monies for Indian people and their needs. Reserves were established by colonial authorities as a result of Indians' petitions or their sorry circumstances, rather than the policy of a central authority. Accordingly, a few reserves were set aside in New Brunswick by licences of occupation granted to individual Indians on behalf of them and their families or the band they represented. These licences were then confirmed by order in council. In Nova Scotia, on the other hand, lands were set aside by order in council to be held in trust for Indians as if they were owned by them. In Prince Edward Island, a private benefactor allowed Indians to live on one reserve. Later, private land was purchased using government funds and other reserves were created.12 No reserve was created in Newfoundland until 1984, because that province did not recognize the existence of status Indians within its boundaries following its entry into Confederation in 1949.13 Unlike the reserves in Ontario and western and northern Canada, however, imperial and colonial officials did not feel it necessary in Quebec and the Maritimes to follow the

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surrender requirements of the Royal Proclamation of 1763, so the local Indian commissioners appointed to protect and supervise Indian land transactions also had the power to dispose of reserve land without Indian consent. In all cases, however, and wherever they are located, Indian reserves have been plagued since their creation by illegal non-Indian squatters and the unlicensed use and exploitation of timber and other resources on Indian lands. Thus, as described in our later discussion of the Indian Act, protective legislation was passed in the nineteenth century to deal with these and related problems. Indeed, the Indian Act is itself the classic example of protective legislation. Memorial to His Excellency Sir Edmund Walker Head from the Oneida Indians of Muncey Town and other Bands on the River Thames, 1858

It is with feelings of sorrow that we hear of the act passed for the purpose of allowing the Indian to enfranchise if he feels desirous of doing so, we are sorry that such an inducement is held out to separate our people. If any person availing himself of this enfranchisement act should fail to do well and lose his little piece of ground — he is forbidden to ever return to his tribe. All red men are brethren and our hearts would bleed to see one of our brethren wandering about the highway without the right of returning to his tribe when in distress. Source: National Archives of Canada, Record Group 10 (Indian Affairs) [hereafter NAC RG10], volume 245, part 2, number 11801-11900, microfilm reel C12339.

British Columbia presents an entirely different and still problematic situation. Between 1850 and 1854, William Douglas, governor of the Vancouver Island colony, entered into 14 treaties with the Indian peoples of southern Vancouver Island.14 Under these treaties, provision was made for the creation of reserves on terms similar to those in effect in Ontario and, later, western and northern Canada. A shortage of funds to compensate Indian peoples for their lands and a growing unwillingness among the settler population to recognize Indian rights to land hampered the reserve policy. Later, colonial authorities adopted a policy of allocating very small reserves to Indian bands. Pressured by the federal government to enlarge the reserves, after the province's entry into Confederation in 1871, British Columbia refused, in keeping with Canadian policy. A complicated series of federal/provincial negotiations, commissions of inquiry and parliamentary hearings led eventually to resolution of the issue in 1938. However, except for a portion of Vancouver Island (the Douglas treaties) and the northeastern corner of the province (Treaty 8), most of the land in British Columbia is not covered by treaties.15 In addition to creating reserves, in Upper Canada the policy to civilize the Indians was supplemented by legislation, the 1857 Act to Encourage the Gradual Civilization of the Indian Tribes in this Province. It provided for the voluntary enfranchisement — freedom from Indian status — of individuals of good character as determined by a board of examiners. Upon enfranchisement, volunteers would no longer be considered 'Indians' and would acquire instead the rights common to ordinary, non-Aboriginal settlers. In addition, they would take a portion of tribal land with them. They and such property would no longer be 'Indian' in the eyes of the law. Reformers saw enfranchisement as a privilege, not something to be acquired lightly. 137

The enfranchisement policy was a direct attack on the social cohesion of Aboriginal nations, and it shattered the partnership for development that had existed between the Crown and Aboriginal peoples up to that point. Although Aboriginal people had cooperated with many aspects of the civilization policy — even to the point of financing it in some instances — enfranchisement was wholly unacceptable. Importantly, it was a threat to the integrity and land base of communities, an attempt to "break them to pieces" one leader charged. Aboriginal nations petitioned the imperial government for repeal of the Gradual Civilization Act and were suspected by colonial authorities of organizing a boycott to prevent Indians from seeking enfranchisement. The Six Nations council, for example, declared publicly its opposition to "their people taking the advantages offered" by the act. For their part, Indian affairs officials were determined to move educated Indians away from what they saw as the backward culture of the reserves and were entirely unsympathetic to Indian concerns or complaints. Only one man, Elias Hill, is known to have volunteered for enfranchisement over the two decades following passage of the act. The evident failure of the voluntary enfranchisement policy led the Indian affairs department to campaign throughout the remaining pre-Confederation period for an end to the independence of the Aboriginal governments that the Royal Proclamation of 1763 had apparently promised to protect. "Petty Chieftainship" should be abolished, the government was advised, and a "Governor and a sufficient number of magistrates and officers" put in charge of reserve communities.16 Following Confederation, drastic measures along the lines proposed by Indian affairs officials were enacted through the Indian Act and related legislation. As events would ultimately reveal, these measures also would fail to accomplish their avowed goal of undermining Aboriginal self-government, although they would put reserve governments and Aboriginal cultures under pressures from which they are beginning to escape only now.

2. The Forging of Métis Identity The usual emphasis of Métis history by geographical area and chronological period is on the Red River Settlement and the Canadian prairies for the years between 1869 and 1885 — the time of Louis Riel's leadership. Both emphases have undoubted importance to Canadian history in general and to the history of the people identified as 'the Métis' through most of the twentieth century. A wider, longer view is important, however, to place that population in its broader context. (See Volume 4, Chapter 5 for a fuller account of Métis history.) The first emergence of Métis people was not inadvertent. Intermarriage of newcomers with First Nations people was a deliberate strategy of seventeenth-century church and state officials in New France, as they intended to develop a powerful presence in North America to counter that of their European rivals, the Dutch and the English. From the standpoint of the French state, newcomers intermarrying with Aboriginal women and thus leading them to Christianity and all that was considered superior in French peasant culture, would secure the expanding presence of France by assimilationist influence. And since Aboriginal protocols of diplomacy and trade included the custom of intermarriage

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with allies, the assimilationist project was expected to be helpful with the expanding trade sought by newcomers interested in fur. The British would later experiment with a similar policy in Nova Scotia. France experienced results beyond its capacity to control in two respects. First, its influence expanded over vastly more territory than the French could ever hope to dominate by royal edict or troops. Second, France had to contend with the unexpected phenomenon of reverse assimilation, in the sense that the natives of France who became coureurs de bois to cement the all-important trading connections with Aboriginal people — learning their languages, intermarrying, and living among them — often remained there permanently. Officially, France ceased to sanction intermarriage after the 1670s, but so long as a fur trade was promoted from Montreal, economic incentives encouraged the original dynamic.17 Because promotion of the fur trade continued until 1821, a large Métis population developed throughout the Great Lakes basin. In the interim, of course, the Montreal merchants connected with the basin had become or were replaced by British subjects following the cession of New France to Great Britain in 1763. As early as 1713, the British had gained a significant foothold on French territory in the present-day Maritime provinces by the Treaty of Utrecht, temporarily ending more than a decade of struggle for control of the continent. After 1714, the British tried to transform newly acquired Nova Scotia into an extension of New England, and they discouraged year-round occupation of Newfoundland and Labrador, preferring to see both new acquisitions occupied merely as seasonal adjuncts to the summer fishery launched from the British Isles. Inevitably some year-round communities were established, the largest on the island of Newfoundland. However, some fishermen ventured to Labrador. The people exploiting the cod and salmon fishery from ships were known as 'floaters'. The sojourners who worked onshore through the summer were called 'stationers'. Significant for the ethnogenesis of Métis people in Labrador was the British fishery equivalent of the French fur trade coureurs de bois. Fishermen taking up permanent residence came to be known as 'liveyers'. They were not floaters or stationers — no kind of sojourner — but live-heres, accepted by the Aboriginal people as persons prepared to adapt and for whom there was space as well as resources south of Lake Melville. In subsequent generations of isolation and continuing adaptation, they emerged as another Aboriginal people in their own right, virtually without interference from any but a small stream of assimilable newcomers well into the twentieth century. The destination of Anglo-Europeans seeking to create a new Europe moved further west after the British acquisition of New France in 1763. The Royal Proclamation of 1763 did not mention the Métis people or Métis communities that had developed in the territory that was deemed to be 'Indian' rather than 'settled'. Presumably, if any thought were given to their existence, they were to be dealt with as 'Indians' wherever such persons lived 'with' or 'as' First Nations people or Inuit.18 The matter the British never clarified so long as imperial officials administered Indian policy as an imperial interest, not to be tampered with by colonists (nearly one full century, until 1850), was the defining difference between Aboriginal people so

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apparently European that they were taken to be 'settlers' rather than 'Indians'. The British insisted that Aboriginal people had to be part of a known Indian community to be counted as 'Indians', or, if living apart, as a community of their own, to be recognized by other Indian people as an 'Indian band' in its own right. Aboriginal people who did not meet either test were deemed to be "Half-caste squatters", dubious settlers in advance of legitimate settlement. The number of such cases encountered between 1763 and 1850 is unknown, perhaps unknowable, but the reports of imperial officials in the 1830s and 1840s suggest that the number was large enough to pose "a good deal of trouble to the Government if they had anything to claim under strict Treasury Regulations."19 On this account, it would appear that the Métis population of eastern Canada was truly significant in both numbers and extent. Even so, the usual practice of officials was merely to nudge Métis 'squatters' out of each new district as it came open for 'actual settlement'. Occasionally they persisted, to be absorbed into the general population of later generations of settlers, or they persisted selfconsciously apart, as for example near Peterborough, where the Burleigh Falls community of today traces its beginnings to Aboriginal origins well in advance of legal settlement. More typical were the people who responded to such discouragement by simply moving on, even further into the interior. Centuries of contact in the fur trade deep in the interior of the continent meant that there were many destinations for migrants pushed westward. Dozens of Aboriginal communities existed 'between' the older First Nations societies and the fur trade outposts established by the transient merchants. Near each fur trade post occupied by sojourners were communities of permanent residents. Recent research has documented the development of Métis communities at no fewer than 53 such locations between 1763 and 1830.20 Since pressure on their patterns of settlement and culture was as unrelenting in the wider Great Lakes basin as in southern Ontario, the flow of migration continued and tended to converge at the forks of the Red and Assiniboine rivers, where fur traders from Montreal had established a key transfer point for provisioning their western-most operations with locally procured pemmican, the dried buffalo meat fuel for the human power of the great canoes of the voyageurs. The routes from the Great Lakes country made up one significant set of avenues converging on the Red River community. Another flowed from the north, stemming from the interactions of British traders and Indian people involved in the fur trade organized by the Hudson's Bay Company under a royal charter dating from 1670. The territory under the authority of the Hudson's Bay Company was huge. It extended throughout the entire Hudson Bay drainage basin, extending from the Rocky Mountains in the west and the Mackenzie Delta in the north-west to northern Labrador in the east and as far as presentday North Dakota in the south. Although neither the Hudson's Bay Company (HBC) nor the British Crown was interested in establishing settlements or assimilating First Nations people in the territory of the company's chartered monopoly, the same dynamics of trade and diplomacy that fostered intermarriage between European fishermen and fur traders and First Nations people in the east gave rise to a Métis population in the north-west as well.

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From the standpoint of fur trade history, the ever expanding Hudson Bay-based trade of the HBC spelled certain conflict with the Montreal-based operations of rival companies like the North West Company, even after the change in the Montrealers' connection from France to Britain. The certainty that such conflict would embroil Aboriginal people took a more threatening turn in 1810, when the HBC decided to sanction wholesale migration of farmers from Scotland to develop the agricultural potential of a vast tract astride the Montrealers' pemmican supply line in the Red River Valley. Métis people, whose establishment in the vicinity was attributable in large part to their flight from similar schemes elsewhere, organized with North West Company encouragement to resist this intrusion with force. In the famous Battle of Seven Oaks in 1816, they showed remarkable resolve to retreat no more. Their victory that day in June dramatized their proclamation of a "New Nation" that was no mere rhetorical affirmation. Their success did interfere seriously with the HBC's settlement project, but the company was determined to defeat its Montreal rivals in trade. What followed from 1816 to 1821 was intense competition, with each firm meeting the other post for post and the two sets of employees scrambling for the prize of the trade, occasionally to the point of armed combat. By 1821 the contest between the companies was resolved in a merger. More than 100 posts became instantly redundant. Almost 1300 employees were no longer needed. Most Hudson's Bay Company and North West Company employees were sojourners who chose to return to their own homelands, but about 15 per cent were employees with fur trade families who found it more agreeable to retire to a location in the native land of their spouses and children. The area the HBC designated as the appropriate location for retirement was Red River. The arrival of hundreds of retirees in the early 1820s proved no threat to the Métis Nation developing there already. Indeed, the infusion tended to consolidate the earlier development. There were initially two distinct mixed-ancestry populations in the west, each linked largely to one company or the other. The French-speaking Métis were associated mostly with the North West Company and its Montreal-based predecessors. The Englishspeaking 'half-breeds' were aligned chiefly with the pre-merger Hudson's Bay Company.21 Historians have not reached consensus on how much the two streams of migration — the French 'Métis' and the English 'half-breeds' — merged into one population over the next several decades. They do agree, however, that many paths led to Red River, and what developed there between 1820 and 1870 represented a florescence of distinct culture in which both streams participated. The new nation was not simply a population that happened to be of mixed European/Aboriginal ancestry; the Métis Nation was a population with its own language, Michif (though many dialects), a distinctive mode of dress, cuisine, vehicles of transport, modes of celebration in music and dance, and a completely democratic though quasi-military political organization, complete with national flag, bardic tradition and vibrant folklore of national history.22 At the same time, the paths that led to Red River still had smaller, though similarly selfconscious Métis communities at their more northerly end points. They, as well as the Red River Settlement, faced potential disruption of the continuity of their histories at the end of the 1860s as severe as any that had occurred in the east in the preceding century. This

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arose from two converging developments: the devolution of control over settler/Aboriginal relations from Britain to the colonies in 1850; and the colonies becoming increasingly well poised to form a political entity intent on seizing control of all of British North America. The first development occurred at the stroke of a pen; the second followed a more tortuous course of provincial and interprovincial politics spanning the decade after 1867. When the dominion of Canada emerged in 1867, its government intended to make immediate headway on an expansionist agenda that was one of the primary reasons for Confederation. The government made plain its intention to take over all the territory of Hudson's Bay Company operations within a matter of weeks of the beginning of the first session of the first parliament. Hearing rumours of the change, Aboriginal people expected accommodation of their interests: compensation for what might have to be diminished, retention of an essential minimum necessary to thrive in the new circumstances. The treaties Canada negotiated with First Nations in the 1870s (and later) had both characteristics — at least in principle. But the treatment accorded Métis people was complicated by their uncertain status in the eyes of British and Canadian policy makers (see Volume 4, Chapter 5). The people of the Red River settlement hoped to clarify their situation even before the transfer of Hudson's Bay Company territory. The details of their resistance led by Louis Riel, and the negotiations that resulted in the Manitoba Act (also discussed in Volume 4, Chapter 5) are well known. Responding to pressure from Great Britain as well as to the community, which was approaching 12,000 people, Canada did appear to agree to an accommodation. There was a compensatory promise of "fair and equitable" grants to people whose access to open prairie was expected to be restricted by future development. There was a positive affirmation of continuity, in the form of secure tenure of all occupied lands, and a promise of 1.4 million acres to benefit "the children of the half-breed heads of families". Equally important, the negotiations leading to passage of the Manitoba Act and admission of the community to the Canadian federation as a province in its own right appeared to confirm the existence and importance of Métis self-government. The overall arrangement was so eminently satisfactory to the Métis provisional government that on 24 June 1870 its members ratified what many have since referred to as their 'treaty' without one dissenting voice. The community did not persist as expected. Although the vitality of the Métis Nation today shows that a nucleus survived, the large, contiguous, self-governing Métis homeland in Manitoba never came into being. Within 10 years, nearly all positions of genuine political power had passed to newcomers; much of the original Métis population had dispersed; and the minority that remained was largely landless, a marginal proletariat in its own homeland. The reasons for, and the consequences of, this frustration of Métis Nation expectations in Manitoba are discussed in Volume 4, Chapter 5. The Buffalo Hunt 142

On the 15th day of June 1840, carts were seen to emerge from every nook and corner of the settlement, bound for the plains.... From Fort Garry the cavalcade and camp-followers went crowding on to the public road, and thence, stretching from point to point, till the third day in the evening, when they reached Pembina, the great rendez-vous on such occasions. ...Here the roll was called, and general muster taken, when they numbered on this occasion 1,630 souls; and here the rules and regulations for the journey were finally settled.... The first step was to hold a council for the nomination of chiefs or officers, for conducting the expedition. Ten captains were named, the senior on this occasion being Jean Baptiste Wilkie, an English Métis, brought up among the French... All being ready to leave Pembina, the captains and other chief men hold another council, and lay down the rules to be observed during the expedition. Those made on the present occasion were:— 1. No buffalo to be run on the Sabbath-day. 2. No party to fork off, lag behind, or go before, without permission. 3. No person or party to run buffalo before the general order. 4. Every captain with his men, in turn, to patrol the camp, and keep guard. 5. For the first trespass against these laws, the offender to have his saddle and bridle cut up. 6. For the second offence, the coat to be taken off the offender's back, and be cut up. 7. For the third offence, the offender to be flogged. 8. Any person convicted of theft, even to the value of a sinew, to be brought to the middle of the camp, and the crier to call out his or her name three times, adding the word "Thief" at each time. Source: Alexander Ross, The Red River Settlement: Its Rise, Progress, and Present State (Edmonton: Hurtig Publishers, 1972), pp. 245, 248-250.

The poignancy, irony and special relevance of the Manitoba experience to Métis people beyond Manitoba is that resentful Métis people migrated, mainly westward and northward, in the 1870s and 1880s to remote communities that were already demanding Manitoba Acts of their own. What those communities received was far less than even the disappointing benefits of the Manitoba Act. Further land was distributed, nominally at least, to Métis of the Northwest Territories, under a statute called the Dominion Lands

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Act, but the process was no more successful than the Manitoba process had been in terms of assuring satisfactory land-based Métis communities. In some areas, especially in the east, no attempt to recognize or deal with Métis Aboriginal rights was ever made. The federal government's suppression and neglect of Métis aspirations was demonstrated most dramatically by its military destruction of Batoche in 1885, in response to the Saskatchewan Métis' desperate step of asking Louis Riel to form a second provisional government based there. Both Métis and Plains Indians were deeply concerned by the relentless influx of newcomers to the prairies, the threat this posed to their lands and ways of life, and the sudden disappearance of the buffalo in the 1880s. While the federal government dithered in coming to grips with Métis and Indian grievances, Riel proceeded to form a provisional government. Under the leadership of Gabriel Dumont, a military force of plainsmen was also formed, but the federal government countered by sending a strong military expedition to the north-west in the spring of 1885. The Métis forces were crushed at Batoche, and Riel was hanged, after being convicted of treason, at Regina on 16 November 1885. Big Bear and Poundmaker, who had provided strong leadership to the Plains Indian forces, were arrested and sentenced to three years' imprisonment. The administrative pattern for dealing with Métis people after the trial and execution of Riel for his alleged crime of treason was to issue orders in council creating commissions to convene the Aboriginal people of a district for the purpose of securing adherence to an existing treaty or negotiating a new one. At the conclusion of the proceedings, persons included on treaty lists as 'Indians' would receive a small cash gratuity and the promise of inclusion in the benefits accorded to the other persons of that particular 'Indian band'. Métis people of the same district would have the option as individuals to join treaties or receive 'half-breed' scrip redeemable in land or a cash gratuity — nothing more. All told there were 14 such commissions canvassing western Canada. The last operated in the Mackenzie River district in 1921. The process had been condemned from the beginning. No less an official than A.M. Burgess, deputy minister of the interior from the 1870s until nearly the end of the century, reported in 1895 that "the state of the half-breed population of Manitoba and the North-West has not only not improved since the time of the transfer of the country to Canada in 1870 but that it has gradually become worse...".23 Still, no other accommodation was contemplated. Canada did not recognize Métis communities as such. Canada defined Métis rights in purely individual terms, the one-time-only claim that certain 'half-breeds' might make for scrip. When they received that gratuity, any potential claim arising from their aboriginality was deemed to be 'extinguished'. Inexplicably, Métis communities beyond the reach of the Manitoba Act and the Dominion Lands Act did not even receive that consideration. Thus, the historical claims of many Métis people across Canada today have their basis in the inadequacy of the scrip system dating from the 1870s and '80s. For others, it is a matter of their Aboriginal rights never having been recognized or dealt with. Canada's belated recognition in 1992 of Louis Riel as a father of Confederation for his role in the Manitoba provisional government of 1869-

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1870 is a significant but small admission of a larger pattern of grievances that calls for more substantive remedies in the future.

3. Treaty Making in Ontario, the West and the North After the War of 1812, colonial powers no longer felt the need to maintain their treaties and alliances as they had formerly, and instead they turned their attention to obtaining Indian lands for settlers, particularly agricultural land for the United Empire Loyalists in southern Ontario. So began a new and intensive policy of purchasing Indian lands. From 1815 to the 1850s, there were literally hundreds of land transactions, whereby First Nations, many of which had previously made treaties of alliance, peace and friendship with the Crown, transferred their land to the Crown.24 In all these land transactions, the Crown's purpose was to secure First Nations lands for settlement and development. In some, and perhaps many, of these transactions, the Indian nations thought they were conveying their land to the Crown for the limited purpose of authorizing the Crown to 'protect' their lands from incoming settlement: Our Great Father...said: 'The white people are getting thick around you and we are afraid they, or the yankees will cheat you out of your land, you had better put it into the hands of your very Great Father the King to keep for you till you want to settle. And he will appropriate it for your good and he will take care of it; and will take you under his wing, and keep you under his arm, & give you schools, and build houses for you when you want to settle'. Some of these words we thought were good; but we did not like to give up all our lands, as some were afraid that our great father would keep our land... so we said 'yes', keep our land for us. Our great father then thinking it would be best for us sold all our land to some white men. This made us very sorry for we did not wish to sell it...'25 The loss of their lands and livelihoods impoverished the First Nations, despite the proceeds, which were marginal, from the sale of their lands: Though they have many thousand pounds in the hands of others, yet very little is at their own command. The amount of annuities paid to each, is about six to ten dollars a year, which does not supply their real wants one month, the rest of the time they fish, hunt or beg.26 The documents that conveyed Indian title to the Crown for specific land areas became standardized over time, although they were sometimes inaccurate.27 Typically the Crown paid for these lands in goods delivered at the time the agreement or treaty was made, in the form of 'annuities' (presents). Revenues from the surrender and sale of Indian lands paid for education, health, housing and other services received by Indian nations, as well as making a substantial contribution to general government revenues:28 To a significant degree the Mississauga and Chippewa [and the Ojibwa generally] financed the foundation of Upper Canada's prosperity at the expense of their selfsufficiency and economic independence. Government profits in the nineteenth century

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from the sale of Indian land amounted to the difference between the purchase price and the fair market value... If the Mississauga and Chippewa had received market value for their lands, the British treasury would have been obligated to finance the development of Upper Canada while the aboriginal population would have become the financial elite of the New World.29 After the initial purchase of land, there were invariably second or third purchases, and gradually, as the sale of their lands progressed, First Nations were confined to smaller and smaller tracts, typically in areas that were least suited to European settlement, agriculture or resource extraction. At the same time, the economies and resource use patterns of First Nations were undermined.

3.1 The 1836 Manitoulin and Saugeen Treaties Sir Francis Bond Head, the lieutenant governor of Upper Canada between 1836 and 1838, was strongly sceptical of the prevailing civilization policy, especially the idea of establishing model farms and villages where Indian people would come under 'civilizing' influences. He was, however, interested in securing Indian lands for non-Aboriginal settlers. At a large gathering of Ojibwa and Odawa people at Manitoulin Island in August 1836 — called for the purpose of making the annual distribution of presents — he proposed two major land cessions. One involved the land of the Lower Saugeen Peninsula, the territory of the Saugeen Ojibwa, whom he proposed move either to the Manitoulin Island region or to the northern end of what is now called the Bruce Peninsula, in the area north of Owen Sound. There they would be protected and given assistance with housing and equipment. After some initial resistance to the proposal, the Saugeen Ojibwa agreed to the proposal. Some 607,000 hectares of land were signed over, and a move to the Bruce Peninsula area ensued.30 The second territory involved the many islands of the Manitoulin chain, which were to be ceded to the Crown under the proposal, but with the promise that the region would be protected as Aboriginal territory. Bond Head believed that the model villages program would not succeed, in part because he thought that Indian hunters would not make a successful transition to farming. Instead, he proposed to provide a protected place where they could continue their traditional pursuits in a location far removed from nonAboriginal influences. The abundant lands and resources of Manitoulin Island, he believed, would make a desirable place for Indian people from all over Upper Canada to reside. The island would become like a house with open doors, a house where even the Potawatomi from Wisconsin and Michigan could settle to avoid the efforts of the United States to move them to the west. The treaty of 1836 made provision to set aside the Manitoulin Island area as a reserve, and some Indian people made the move to the island — perhaps some 1,000 to 1,400 persons by 1850 — but the government deemed this experiment a failure. By the early 1860s, the demand for land from non-Aboriginal interests led to a further initiative to gain control of the Manitoulin Island lands. In the 1861-62 period, agents of the Crown and the government of the Province of Canada approached the Odawa and Ojibwa

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nations of Manitoulin, seeking to release the government from its 1836 promise to reserve the lands exclusively for Indian use. The agents of the Crown assumed that the 1836 agreement gave the Crown title to the island, a premise rejected by the Indian nations, as expressed in this statement by Chief Edowishcosh, an Odawa chief from Sheshegwaning: I have heard what you have said, and the words you have been sent to say to us. I wish to tell you what my brother Chiefs and warriors, women and children say. The Great Spirit gave our forefathers land to live upon, and our forefathers wished us to keep it. The land upon which we now are is our own, and we intend to keep it. The whites should not come and take our land from us, they ought to have stayed on the other side of the salt water to work the land there. The Great Spirit would be angry with us if we parted with our land, and we don't want to make him angry. That is all I have to say.31 The negotiations conducted by commissioners William McDougall and William Spragge32 in October 1862 were tense and difficult, with opposition particularly strong in the eastern portion of the island where the government's quest was deemed to be a betrayal of its 1836 promise. McDougall adjourned the proceedings over a weekend, "informing the Indians that those who were disposed to continue the negotiations would remain while those who had resolved to reject every proposition of the government might go home".33 On the following Monday, he presented a revised proposal excluding from the negotiations and subsequent agreement the territory and inhabitants of the eastern portion of the island. Since a majority of the island's Indian inhabitants resided in the east, the agreement to open the bulk of the island to non-Aboriginal settlement was struck with a minority of the Indian inhabitants.34

3.2 The Lake Huron and Lake Superior Treaties of 1850 In 1841 Upper and Lower Canada joined together to become the Province of Canada and subsequently leases were issued to companies to explore and mine in Ojibwa territories. Resistance by the Ojibwa to non-Aboriginal miners and surveyors had been evident for some time. From 1846 to 1849 hostilities simmered, and in 1849 Chief Shingwakonce and Chief Nebanagoching from Sault Ste. Marie addressed the governor general in Montreal, expressing their frustration with four years of failure to address their concerns about mining incursions on their lands: Can you lay claim to our land? If so, by what right? Have you conquered it from us? You have not, for when you first came among us your children were few and weak, and the war cry of the Ojibway struck terror to the heart of the pale face. But you came not as an enemy, you visited us in the character of a friend. Have you purchased it from us, or have we surrendered it to you? If so when? and how? and where are the treaties?35 On behalf of the Crown, Commissioner William Robinson proposed that treaties be made to pursue the objectives of settlement north of the lakes, to mine valuable minerals, and to assert British jurisdiction in the face of American incursions in the area.36 In September 1850 negotiations for the Robinson Huron and Superior treaties were concluded. Ojibwa

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chiefs succeeded in obtaining reservations of land as well as a provision that would give them a share of revenues from the exploitation of resources in their territories. Annuities, or cash payments, were to increase as revenues increased. However, the provision for an increase in the extremely small annuities was adjusted only once in the 1870s. When the Ojibwa request a further increase to reflect the real profits, the federal government's response is to rely on the English text of the treaty, which states that such further sums are limited to what "Her Majesty may be graciously pleased to order".37 While the wording in both treaties provided that Ojibwa hunting and fishing would be undisturbed, the written treaty describes the agreement as a total surrender of territory, terminology that had not been agreed to in negotiations. It appears that the Ojibwa understood that the treaties involved only a limited use of their land for purposes of exploiting subsurface rights where minerals were discovered.38 There was, however, a common understanding between Robinson and the Indian nations that the Ojibwa would be able to carry out harvesting, both traditional and commercial, throughout their traditional territories as they were accustomed to doing.39

4. The Numbered Treaties As we have seen, Crown policy was to proceed with treaties as land was required for settlement and development. In making what came to be called the numbered treaties of the west, treaty commissioners were instructed to "establish friendly relations" with the Indians and to report on a course of action for the removal of any obstructions that stood in the way of the anticipated flow of population into the fertile lands that lay between Manitoba and the Rocky Mountains.40 In negotiating the numbered treaties that followed, the Crown followed the pattern of approaching First Nations to 'surrender' large tracts of land in return for annual cash payments and other 'benefits'. These negotiations were conducted in the oral traditions of the Indian nations. Once agreement was reached, a text was produced that purported to represent the substance of the agreements. However, arrangements respecting land are one area where there was fundamental misunderstanding about what the parties thought or assumed they were doing when they made the treaties. The situation varied from one treaty to another, but in general the Indian nations, based on their cultural and oral traditions, understood they were sharing the land, not 'surrendering' it. While the surrender clauses of the early land sales in Ontario were included in the later written numbered treaties, it is questionable whether their implications were known to the Indian parties, since these legal and real estate concepts would have been incomprehensible to many Aboriginal people. Further, it would have been difficult, if not impossible, to translate the legal language expressing these concepts into the Indian languages. Aboriginal people often understood that they were being compensated for the use of their lands and that they were not being asked to give up or surrender them, but to allow settlers to move onto their lands peaceably. In these negotiations the Indian parties were concerned primarily with retaining and protecting their lands, their ways of life, and the continuation of their traditional

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economies based on hunting, fishing, trapping and gathering. In these areas they were firm and immovable in treaty negotiations. Though they were agreeable to sharing, they were not agreeable to major changes in their ways of life. Further, they were not asked to agree to this; it was common for Crown representatives to assure treaty nations that their traditional way of life would not be affected by the signing of the treaty. Indeed, an examination of the reports of the treaty commissioners reveals that these matters, not the sale of land, occupied most of the discussion during treaty negotiations. Although the extent to which these basic differences and assumptions were communicated effectively and understood depended on the historical circumstances of those events in particular locales, on the whole the First Nations did not agree to having their lands taken over by the Crown, nor did they agree to come under the control of the Crown. Their understanding was that they would share their lands and resources in a treaty relationship that would respect their agreement to co-exist as separate nations but linked in a partnership with the Crown.41 Other aspects of the treaty negotiations were also significant. The numbered treaties provided for tracts of land to be set apart and protected as reserves for the Indian parties. In the Robinson treaties, for example, the reserve lands were retained or reserved from the general surrender of Indian title. In the later numbered treaties, the texts were drafted to indicate that all Indian title was surrendered to the Crown, and from those tracts the Crown was obliged to set apart 'Crown land' for reserves on a population-based formula. As the Indian parties in possession of these huge tracts of land demanded a fair and equitable exchange, the Crown not only offered cash payments upon signing and annually thereafter, but agreed to provide agricultural and economic assistance, schools and teachers, and other goods and benefits depending on the particular group they were negotiating with. Ammunition and gunpowder (for hunting), twine (for fishing nets), agricultural implements (ploughs) and livestock (horses and cattle) were offered, should the Indian nations wish to take up agriculture as a way of life, although they were not compelled to do so. Treaty 6 included the promise of assistance in the event of famine and health care, in the form of a "medicine chest".42 The authority of the chiefs and headmen was recognized by gifts of medals and suits of clothes. While there were common elements to the treaties, there were also distinctive circumstances that led to some variation from one treaty to another. To give the flavour of the different treaties, we provide a brief description of them, grouped into five categories (see Table 6.1 and Figure 6.1). An early western treaty was the Selkirk Treaty of 1817. TABLE

6.1 Registered Indian Population by Treaty and On- and Off-Reserve, 1991

Treaty Pre-Confederation

Total

On-reserve Off-reserve

18,223

149

12,570

5,653

Lower Cayuga

2,226

1,336

890

Upper Cayuga

2,181

892

1,289

20,066

8,816

11,250

6,432

2,809

3,623

Williams

5,145

2,337

2,808

Treaty 1

16,574

9,028

7,546

Treaty 2

8,809

4,972

3,837

Treaty 3

10,790

5,191

5,599

Treaty 4

32,071

12,839

19,232

Treaty 5

46,409

35,780

10,629

Treaty 6

66,867

44,396

22,471

Treaty 7

17,945

13,713

4,232

Treaty 8

28,292

15,346

12,946

Treaty 9

21,356

13,952

7,404

Treaty 10

5,099

3,348

1,751

Treaty 11

8,898

7,338

1,560

317,383

194,663

122,720

Robinson-Huron Robinson-Superior

Total

Source: Department of Indian Affairs and Northern Development, "Registered Indian Population by Band, Treaty, and Region, Canada, 1991", unpublished table (1991); and "Indian Register Population by Sex and Residence" (1991).

4.1 The Selkirk Treaty (1817) The Selkirk Treaty of 18 July 1817 was made between Lord Selkirk and three Ojibwa chiefs and the eastern-most branch of the Cree. The treaty secured a tract of land of two miles on either side of the Red River as a settlement site for 1,000 Scottish families in consideration of 100 pounds of tobacco and other goods in rent annually.43 However, when the proposed transfer of Rupert's Land to Canada became widely known in the late 1860s, a question arose of what was agreed to in the Selkirk Treaty and who owned the land. This led to a continuing discussion about the need for new arrangements respecting the lands in question, and ultimately, to the negotiation of Treaties 1 and 2.44

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4.2 Treaties 1 and 2 (1871) Traditional historical interpretations have tended to portray the treaty-making process as a Crown initiative, with a benevolent Crown extending its largesse to the less fortunate nations. However, the numbered treaties came about because First Nations demanded that special arrangements be made through treaties before the Crown could expect to use Indian lands and resources. They were not prepared to give up their lands, on which they depended for their livelihood, without a formal arrangement that would protect adequate lands and resources for their own use. [There are] those who propagate the myth...that Canada began to negotiate treaties with the Indians of the West in 1871 as part of an overall plan to develop the agricultural potential of the West, open the land for railway construction, and bind the prairies to Canada in a network of commercial and economic ties. Although there is an element of truth to these statements, the fact remains that in 1871, Canada had no plan on how to deal with the Indians and the negotiation of treaties was not at the initiative of the Canadian government, but at the insistence of the Ojibwa Indians of the North-West Angle and the Saulteaux of the tiny province of Manitoba. What is ignored by the traditional interpretation is that the treaty process only started after Yellow Quill's band of Saulteaux turned back settlers who tried to go west of Portage la Prairie, and after other Saulteaux leaders insisted upon enforcement of the Selkirk Treaty or, more often, insisted upon making a new treaty. Also ignored is the fact that the Ojibwa of the NorthWest Angle demanded rents, and created the fear of violence against prospective settlers who crossed their land or made use of their territory, if Ojibwa rights to their lands were not recognized. This pressure and fear of resulting violence is what motivated the government to begin the treaty-making process.45 By 1870 the Ojibwa at Portage notified the Crown that they wished to make a treaty and discuss compensation and that they had "in some instances obstructed settlers and surveyors".46 They also warned settlers not to cut wood or take possession of the lands on which they were squatting and indicated that "they were unwilling to allow the settlers the free use of the country for themselves or their cattle."47 However, they did allow the settlers to remain until a treaty was concluded. Pressure from the Indian nations to protect what was theirs and the Crown's desire to secure Indian lands compelled them to meet and negotiate mutually acceptable terms to accommodate one another. Following an unsuccessful attempt to negotiate a treaty in the Fort Frances region in early 1871, treaty discussions were begun with the peoples of the Treaty 1 and 2 areas in the summer of the same year. In his address to the Ojibwa, the lieutenant governor of Manitoba and the Northwest Territories, Adams G. Archibald, invoked the name of the Queen, who wished them to till land and raise food, and store it up against a time of want. ...[but she had] no idea of compelling you to do so. This she leaves to your choice, and you need not live like the white man unless you can be persuaded to do so of your own free will....

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Your Great Mother, therefore, will lay aside for you 'lots' of land to be used by you and your children forever. She will not allow the white man to intrude upon these lots. She will make rules to keep them for you...as long as the sun shall shine...48 Archibald emphasized that they would not be compelled to settle on reserves and that they would be able to continue their traditional way of life and hunt as they always had. Negotiations respecting land, the size of reserves, and the size of annuities (compensation) were long and difficult. Commissioners had trouble "in getting them to understand the views of the Government — they wishing to have two thirds of the province as a reserve." Eventually a treaty was concluded, but only after the Portage Indians decided to withdraw from negotiations.49 The question of how much land would be retained by First Nations was finally resolved by compromise when Lieutenant Governor Archibald agreed to survey additional land around their farming communities, provide additional lands further west as their land base became too small for their population, and provide additional lands to the plains Ojibwa.50 However, the written text did not include the guarantees that had been made respecting land, hunting and fishing, and the maintenance of their way of life, nor did it contain what were termed "outside" promises respecting agricultural implements, livestock, hunting equipment, and the other promises that had been extracted. In fact, the text was not that different from the Robinson Huron and Superior treaties, for it "surrendered" land in exchange for annuities, schools and reserves based on a formula of 160 acres per person. In a subsequent inquiry into the matter, it was discovered that Commissioner Wemyss M. Simpson had neglected to include a record of the outside promises when he forwarded the text of the treaty to Ottawa. Although a subsequent memo from Commissioner Simpson rectified the error, the outside promises were ignored for some time by the federal government. Commissioner Alexander Morris acknowledged this in his report to Ottawa: When Treaties One and Two were made, certain verbal promises were unfortunately made to the Indians, which were not included in the written text of the treaties, nor recognized or referred, to when these Treaties were ratified by the Privy Council. This, naturally, led to misunderstanding with the Indians, and to widespread dissatisfaction among them.51 The matter of the outside promises was not settled until 1876.

4.3 The Northwest Angle Treaty — Treaty 3 The Ojibwa occupied the territory from Rainy River to Lake of the Woods and had an abundant and stable economy based on the commercial production of furs and trade. When traffic passed through their territory, they extracted compensation for use of the right of way through their lands. Reports to Ottawa suggested that the Ojibwa would oppose any attempt to "[open] a highway without any regard to them, through a territory of which they believe themselves to be the sole lords and masters...".52 Commissioner S.J.

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Dawson, who had negotiated with the Ojibwa for the right of way for the Dawson route, warned Ottawa that they were encountering people who differed greatly from the "tame" Indians with whom Canada had dealt previously. Although their language was often allegorical, "in their actual dealings they are shrewd and sufficiently awake to their own interests".53 He advised they were also familiar with treaties made in the United States and that the "experience they have thus gained has rendered them expert diplomatists as compared to Indians who have never had such advantage and they have not failed to impress on their kindred and tribe on Rainy River the value of the lands which they hold on the line of route to Red River." That the Ojibwa were aware of the results of nonAboriginal settlement was evident in their views of what it entailed: We see how the Indians are treated far away. The white man comes, looks at their flowers, their trees, and their rivers; others soon follow; the lands of the Indians pass from their hands, and they have nowhere a home.54 Because of their clear sense of ownership, the Ojibwa would not allow use of their lands, timber or waterways without compensation. They were steadfast in the defence of their country and opposed non-Aboriginal expansion without the prerequisite treaty arrangements: We are not afraid of the white man; the people whom you go to see at Red River are our Cousins as well as yours, so that friendship between us is proper and natural. We have seen evidence of the power of your Country in the numerous warriors which she has sent forth. The soldiers have been most orderly and quick and they have held out the hand of friendship to the Indians. We believe what you tell us when you say that in your land the Indians have always been treated with clemency and justice and we are not apprehensive for the future, but do not bring Settlers and Surveyors amongst us to measure and occupy our lands until a clear understanding has been arrived at as to what our relations are to be in the time to come.55 The Ojibwa clearly expected to meet the challenges brought by the advent of settlement. They approached treaty making with knowledge that their lands were valuable and that they would direct and control change, as indicated by Chief Mo-We-Do-Pe-Nais: All this is our property where you have come. ...This is what we think, that the Great Spirit has planted us on this ground where we are, as you were where you came from. We think where we are is our property. I will tell you what he said to us when he planted us here; the rules that we should follow... ...Our hands are poor but our heads are rich, and it is riches that we ask so that we may be able to support our families as long as the sun rises and the water runs. ...The sound of the rustling of the gold is under my feet where I stand; we have a rich country; it is the Great Spirit who gave us this; where we stand upon is the Indians' property, and belongs to them. ...The white man has robbed us of our riches, and we don't wish to give them up again without getting something in their place.56

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The negotiation of Treaty 3 was also long and difficult, but after two failed attempts a treaty was concluded in 1873. Throughout the negotiations the Ojibwa held fast to their terms, and Crown negotiators were forced to make concessions. The Ojibwa were concerned primarily with preserving their economic base and securing compensation or rents for the use of their lands. They also took great pains to ensure that the Crown would fulfil the terms. Chief Mo-We-Do-Pe-Nais wanted to know how the treaty would be implemented and safeguarded, insisting that the promises made should be fulfilled by the agents of the Crown. In reply Commissioner Morris gave assurances that the "ear of the Queen's Government" would always be open, and that the Queen would "deal with her servants that do not do their duty in a proper manner".57 Freedom of movement for the Ojibwa throughout their territories was taken for granted, and they took the further step of negotiating free passes on the train that would cross their lands. The liquor trade in their country was to be halted, and they would not be conscripted to fight against their brothers in the United States should there be war between the Americans and the British. It was important to clarify this point, since the treaties of alliance between the eastern First Nations and the British and French had specified mutual obligations in the event of war. With respect to the lands the Ojibwa would reserve for themselves, their spokesman said, "We do not want anyone to mark out our reserves, we have already marked them out...". In the end, the Ojibwa succeeded in getting far more than the Crown had been willing to consider, including an increase in the size of reserves from a quarter-section to a full section. Provision was also made for domestic animals, farming equipment, annuities (compensation), clothing and education. Subsequent treaties generally included these provisions as a standard part of the agreement. In addition, those who were not present at treaty negotiations were asked to sign adhesions to the treaty for their traditional territories.58

4.4 Treaties 4, 5, 6 and 7 59 Treaties with the First Nations of the plains, who were in possession of the western plains and who had to be dealt with if the new dominion was to extend its jurisdiction from east to west, were negotiated between 1874 and 1877. Observing the influx of more people into their country and the changes it brought gave the Indian nations reason for alarm: What wonder that the Indian mind was disturbed, and what wonder was it that a Plain Chief, as he looked upon the strange wires stretching through his land, exclaimed to his people, "We have done wrong to allow that wire to be placed there, before the Government obtained our leave to do so."60 The rich agricultural plains were coveted by the Crown and had the greatest potential, aside from forest and mineral developments, to generate the economic prosperity that settlement would bring. This would not be easy, since the plains nations had military confederacies to guard their lands against encroachment.61

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The plains nations have often been portrayed in history as submissive in the 1870s because of the disappearance of the buffalo and the subsequent loss of their traditional livelihood. It is true that buffalo were becoming scarce and the plans nations were concerned about their livelihood, but they did not experience severe starvation until the 1880s when the buffalo virtually disappeared.62 Records of negotiations and of the circumstances surrounding treaty making show that the plains nations were anything but weak and in fact posed a considerable threat to the new dominion if not treated with the utmost care. This apprehension was reinforced by the appearance of Sitting Bull on the Canadian side of the border after his successful defeat of General Custer at Little Big Horn. During this period, Canada was also cognizant of the threat of annexation of the western territories by the United States, particularly during the Alaska boundary negotiations, which revealed that the United States contemplated expanding north to the 50th/51st boundary. At Treaty 4 negotiations, Commissioner Morris requested that the Queen's subjects be allowed to come and settle among them and farm the land. If the Indian nations agreed, their Great Mother the Queen would see that their needs were met, and the Queen's power and authority would protect them from encroachment by settlement. Treaty commissioners took great care to emphasize the physical aspects of the "caring relationship" and emphasized that the Indian nations would benefit from treaties with the Queen. They were assured that no harm would come to them as a result of the treaty and that their way of life would be safeguarded. Since many of their people were not present, those that were expressed their inability to negotiate, saying they had no authority to speak for those not present.63 Further, political differences between the Cree and the Saulteaux erupted and delayed negotiations, resulting in a highly charged atmosphere. The compensation given to the Hudson's Bay Company in exchange for their rights in Rupert's Land became an issue that required enormous diplomatic skill on Morris's part before negotiations, when the Indians demanded that they be given the payment, since they were the owners of the land. In the end, and in part because of all the difficulties in negotiating the treaty, Morris offered and the chiefs present agreed to accept the terms of Treaty 3, the terms of which had already been communicated to them by the Ojibwa with whom they were in close communication.64 Treaty 5 was negotiated in September 1875 between the Swampy Cree and others and the Crown as represented by Commissioner Morris. A treaty in the vicinity of Lake Winnipeg was deemed necessary because of the requirements of navigation and the need to make arrangements for settlement and other developments so that "settlers and traders might have undisturbed access to its waters, shores, islands, inlets and tributary streams".65 According to Morris's report, the terms of Treaty 5 were similar to Treaties 3 and 4, except that reserved land would be provided on the basis of 160 acres for each family. The record of negotiations kept by commissioners had little detail about the extent of negotiations and essentially revolved around what was being 'offered' by commissioners and the location of the lands the Swampy Cree would retain. As the

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Crown was intent on gaining access to and controlling the waterways, the location of reserves generated some discussion. The Cree were assured, however, that they would be able to retain lands in their traditional territories. Before the negotiation of Treaty 6, reports had been received that unrest and discontent prevailed among the Assiniboine and Cree, owing to construction of the telegraph line, the survey of the Pacific Railway line, and geographical survey crews. A report from W.S. Christie, chief factor of the Hudson's Bay Company in Edmonton, about the cause of the unrest contained a message from Chief Sweetgrass, a prominent chief of the Cree country: Great Father, — I shake hands with you, and bid you welcome. We heard our lands were sold and we did not like it; we don't want to sell our lands; it is our property, and no one has a right to sell them.... Our country is getting ruined of fur-bearing animals...our sole support... our country is no longer able to support us.... Make provision for us against years of starvation.... small-pox took away many of our people... we want you to stop the Americans from coming to trade on our lands.66 By this time, it was becoming evident that the buffalo, their livelihood, was suffering from over-hunting. The potential negative impact on Indian economies was becoming too obvious to ignore: I was also informed by these Indians that the Crees and Plain Assiniboines were united on two points: 1st. That they would not receive any presents from Government until a definite time for treaty was stated. 2nd. Though they deplored the necessity of resorting to extreme measures, yet they were unanimous in their determination to oppose the running of lines, or the making of roads through their country, until a settlement between the Government and them had been effected.67 Treaty 6 negotiations were conducted with elaborate protocols and ceremonies by both sides before and after negotiations in August 1876. Indian and Crown protocols were observed, and bargains made were sealed with pipe ceremonies. The Sacred Pipe ceremonies and declarations respecting the "honour of the Crown" set the moral and spiritual context within which negotiations proceeded. Eloquent and symbolic speeches were made to show good faith and honourable intentions. The major concern on the plains nations side was the loss of their food supply, the buffalo, and the fear of famine and disease. They were aware of the terms of earlier treaties with "The Great Mother, The Queen" and treaties in the United States. The ensuing negotiations, which expanded the terms of former treaties, prompted this later report by David Mills, the minister of the interior: In view of the temper of the Indians of Saskatchewan, during the past year, and of the extravagant demands which they were induced to prefer on certain points, it needed all the temper, tact, judgment and discretion, of which the Commissioners were possessed, to bring negotiations to a satisfactory conclusion.68

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To reassure the Indian nations, Morris promised: "Understand me, I do not want to interfere with your hunting and fishing. I want you to pursue it through the country as you have heretofore done".69 He assured them that they would have more land than they needed. By the end of negotiations, the terms were similar to those of the other treaties, involving annuities, education, economic assistance and assistance with housing, but with added provisions for relief in the event of famine, help for the indigent, grain provisions for three years, and medical aid.70 In September 1877, Treaty 7 was made at Blackfoot Crossing between the Crown as represented by Commissioner David Laird and the Blood, Blackfoot, Peigan, Sarcee and Stoney nations of the Blackfoot Confederacy.71 Colonel McLeod of the Northwest Mounted Police, who was well respected by the confederacy, was also in attendance. The Blackfoot Confederacy was feared because of its effectiveness in the defence of Blackfoot territory from outside encroachment. The Blackfoot were experiencing hardship as a result of the disappearance of the buffalo from their hunting grounds. Furthermore, up to 800 of their people had died from a smallpox epidemic in 1870.72 From the Crown's perspective, it was essential to make a treaty with the Blackfoot to protect the existing settlements around the forts, provide for peaceful settlement, and preserve the friendly disposition of the tribes, which might easily give place to unfriendly or hostile feelings should the treaty negotiations be delayed further. Commissioner Laird offered inducements to get them to sign a treaty: The Great Mother heard that the buffalo were being killed very fast, and to prevent them from being destroyed her Councillors have made a law to protect them. ...This will save the buffalo, and provide you with food for many years yet, and it shews you that the Queen and her Councillors wish you well. ...Last year a treaty was made with the Crees along the Saskatchewan, and now the Queen has sent Col. McLeod and myself to ask you to make a treaty. But in a very few years the buffalo will probably be all destroyed, and for this reason the Queen wishes to help you to live in the future in some other way. She wishes you to allow her white children to come and live on your land and raise cattle, and should you agree to this she will assist you to raise cattle and grain... She will also pay you and your children money every year, which you can spend as you please. ... The Queen wishes us to offer you the same as was accepted by the Crees. I do not mean exactly the same terms, but equivalent terms, that will cost the Queen the same amount of money. ...The Commissioners will give you your choice, whether cattle or farming implements. ...If you sign the treaty every man, woman and child will get twelve dollars each... A reserve of land will be set apart for yourselves and your cattle, upon which none others will be permitted to encroach; for every five persons one square mile will be allotted on this reserve...73 The good relations that existed between the North West Mounted Police and the Blackfoot were largely responsible for the congenial atmosphere that prevailed at

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Blackfoot Crossing. Negotiations consisted of the Crown offering annuities, goods and benefits, as they had in other treaties, in exchange for Blackfoot agreement to sign a treaty, which they did without extensive negotiations. They were promised that their reserved lands could not be taken without their consent and that their liberty of hunting over the open prairie would not be interfered with so long as they did not molest the settlers. In the record of treaty discussions prepared by the Crown, there appeared to be little discussion of the impending construction of the railroad or the surrender of Blackfoot territory.74

4.5 Northern Treaties: 8, 9, 10 and 11 Treaties 8 and 11 were driven by economic pressures — gold was discovered in the Klondike in the spring of 1897, and prospectors, gold diggers and settlers flooded into Indian lands. The exploitation of rich gold, oil, gas and other resources by companies and individuals created a ferocious dynamic. The serious damage inflicted on the Indian economy and the destruction of forests by fires infuriated the Indians, who reacted strongly against the invasion of their lands. Indeed, in June 1898, nations in the Fort St. John area refused to allow police and miners to enter their territories until a treaty was made. The Crown declared that "no time should be lost by the Government in making a treaty with these Indians for their rights over this territory."75 As a result, in 1899 treaty commissioners travelled with a sense of urgency to meet the Cree and Dene nations in possession of a northern territory comprising 324,900 square miles, an area from northern Saskatchewan, Alberta and British Columbia and south of the Hay River and Great Slave Lake in the North West Territories. In Treaty 8, the Crown continued its policy of offering benefits if the Indian nations would allow settlers into their territories. The pre-drafted 'southern' treaty was offered for discussion. It included the usual items, as well as such things as livestock and farming equipment — items completely unsuitable to the north. The treaty also included the usual 'cede, surrender and yield up' clause, although this was not discussed by commissioners. Father Lacombe reported that "the Northern native population is not any too well disposed to view favourably any proposition involving the cession of their rights to their country".76 Another report by a missionary said that "As far as I can gather they are determined to refuse either Treaty or "Scrips" and to oppose the settlement of their country by Europeans".77 Negotiations went on for many days at various locations and were hampered by commissioners' lack of understanding of the conditions put forward by the Cree and Dene nations. The latter refused to sign a treaty unless commissioners met their demand that "nothing would be allowed to interfere with their way of making a living; the old and destitute would always be taken care of; they were guaranteed protection in their way of living as hunting and trappers from white competition; they would not be prevented from hunting and fishing as they had always done, so as to enable them to earn their living and maintain their existence".78 It was only after the commissioners solemnly pledged their

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word, in the name of Queen Victoria, that the Indians agreed to sign the treaty.79 However, the full content of the discussion was not reflected in the written treaty. Treaty 11 was to follow the same path, since the Privy Council had noted in 1891 that immense quantities of petroleum and other valuable minerals existed in the Mackenzie River country and that "a treaty or treaties should be made with the Indians who claim these regions as their hunting grounds".80 The economic implications were staggering to politicians in Ottawa. After oil was discovered at Norman Wells, treaty commissioners were again dispatched with urgency when the Dene threatened to refuse entry to their lands. Commissioners were received with suspicion and mistrust, since the Dene had learned that guarantees negotiated in Treaty 8 were not being respected. Throughout the negotiations, the Dene repeated their conditions for making a treaty: no reserves to restrict their movements; protection of their lands; education; medical care; protection of wildlife and of their hunting, fishing and trapping economies. In response, promises were made by Commissioner Conroy that "they would be guaranteed full freedom to hunt, trap, and fish in the Northwest Territories if they would sign the Treaty", since it was clear that they would not make any treaty without that guarantee.81 Oral promises — made by Bishop Breynat as well as Commissioner Conroy, whose word alone was not enough — were made and remade at the various treaty-making sites: I gave my word of honour that the promises made by the Royal Commissioner, "although they were not actually included in the Treaty" would be kept by the Crown. ... They were promised that nothing would be done or allowed to interfere with their way of living... The old and the destitute would always be taken care of... They were guaranteed that they would be protected, especially in their way of living as hunters and trappers, from white competition, they would not be prevented from hunting and fishing, as they had always done, so as to enable them to earn their own living and maintain their existence.82 Commissioner Conroy did not table the commitments and guarantees made to the Dene in the oral negotiations. All that was tabled was a written text almost identical to the predrafted treaty that had been proposed in the Treaty 8 negotiations. Throughout the negotiation of the numbered treaties the commissioners did not clearly convey to First Nations the implications of the surrender and cession language in treaty documents. The discussion about land proceeded on the assumption, on the First Nations side, that they would retain what they considered to be sufficient land within their respective territories, while allowing the incoming population to share their lands. Many nations believed they were making treaties of peace and friendship, not treaties of land surrender. It is also probable that treaty commissioners, in their haste to conclude the

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treaties, did not explain the concept of land surrender. An anthropologist testifying before Justice Morrow in the Paulette case put the issue this way: ...How could anybody [explain] in the Athapaskan language through a Métis interpreter to monolingual Athapaskan hearers the concept of relinquishing ownership of land...[to] people who have never conceived of a bounded property which can be transferred from one group to another...83

5. Differing Assumptions and Understandings When Europeans landed on the shores of the Americas, they first sought shelter and sustenance, then pursued a lucrative trade with Aboriginal nations, and later made arrangements through treaties to live permanently in Aboriginal territories. These treaties varied in purpose and scope, depending on the circumstances and objectives of the parties making them. Early treaties were made for peace, trade, alliance, neutrality and military support. When settlement grew, treaties were made to establish relationships, as a way of living together in peaceful co-existence, and to acquire Aboriginal lands and resources. Canada continues to enter into treaty agreements with Aboriginal nations to acquire title to Aboriginal lands and resources. Over time, treaties became more complex and difficult to negotiate. In the early period of contact, when Europeans were a minority and understanding one another was essential to survival, treaty relationships were cultivated and maintained carefully. As time went on and Europeans became a majority, negotiations became complex, difficult and vague in some areas, as the Crown pursued its goal of securing Aboriginal lands to build its new country. The different cultural views, values and assumptions of both parties conflicted in substantial ways. These contradictions were often not evident, or remained unspoken, in the negotiation and conclusion of solemn treaty agreements. In many cases, it is questionable whether the Indian parties understood the legal and political implications of the land conveyance documents they were asked to sign. Many of these transactions are the subject of land claims today. It is also doubtful in many cases that the First Nations participating in the numbered treaties knew that the written texts they signed differed from the oral agreements they concluded. In fact, it was not evident to them until some years after treaties were made that the Crown was not honouring its treaty commitments or was acting in a way that violated treaty agreements. Their reaction to the imposition of government laws and restrictions upon them was seen as a violation of the Queen's promise to protect their way of life and not subject them to the Queen's laws (the Indian Act) or the Queen's servants (the Indian agent). The possibility that the party recording the oral agreements and preparing the written text took advantage of the other party's lack of understanding of the legal implications of written texts, or that those implications were not communicated to the party that did not read or write, is disturbing. If First Nations depended on the oral version of their treaties, it follows that the oral agreements reached must be compared to the written version to verify the nature and scope of these agreements today. The fact that in most cases the Indian parties were unable to verify the implications of the written text

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against the oral agreement, because of language and cultural barriers, must be given consideration when interpreting their meaning. As we have seen from these brief descriptions of the individual treaties, from the perspective of the First Nations there were several basic elements or principles involved in the treaty-making process. In making treaties both parties recognized and affirmed one another's authority to enter into and make binding commitments in treaties. In addition, First Nations would not consider making a treaty unless their way of life was protected and preserved. This meant the continuing use of their lands and natural resources. In most, if not all the treaties, the Crown promised not to interfere with their way of life, including their hunting, fishing, trapping and gathering practices. The Crown asked First Nations to share their lands with settlers, and First Nations did so on the condition that they would retain adequate land and resources to ensure the wellbeing of their nations. The Indian parties understood they would continue to maintain their traditional governments, their laws and their customs and to co-operate as necessary with the Crown. There was substantive agreement that the treaties established an economic partnership from which both parties would benefit. Compensation was offered in exchange for the agreement of First Nations to share. The principle of fair exchange and mutual benefit was an integral part of treaty making. First Nations were promised compensation in the form of annual payments or annuities, social and economic benefits, and the continued use of their lands and resources. These principles, which were part and parcel of the treaty negotiations, were agreed upon throughout the oral negotiations for Treaties 1 through 11. They were not always discussed at length, and in many cases the written versions of the treaties are silent on them. In these circumstances, the parties based their negotiations and consent on their own understandings, assumptions and values, as well as on the oral discussions. First Nations were assured orally that their way of life would not change unless they wished it to. They understood that their governing structures and authorities would continue undisturbed by the treaty relationship. They also assumed, and were assured, that the Crown would respect and honour the treaty agreements in perpetuity and that they would not suffer — but only benefit — from making treaties with the Crown. They were not asked, and they did not agree, to adopt non-Aboriginal ways and laws for themselves. They believed and were assured that their freedom and independence would not be interfered with as a result of the treaty. They expected to meet periodically with their treaty partner to make the necessary adjustments and accommodations to maintain the treaty relationship. Treaty negotiations were usually conducted over a three- to four-day period, with tremendous barriers created by two different cultures with very different world views and experiences attempting to understand and come to terms with one another. Negotiation and dialogue did not, and could not, venture into the meaning of specific terminology, legal or otherwise, and remained at a broad general level, owing to time and language barriers. Issues such as co-existence, non-interference with the Indian way of life, noninterference with hunting and fishing and retention of adequate lands would therefore

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have been understood at the broadest level. These were matters that would, presumably, be sorted out as time went on. Under these circumstances, conceptual and language barriers would have been difficult to overcome. In many cases this meant that the parties had to rely on the trustworthiness, good intentions, and good faith of the other treaty partner and the ability to understand one another better through time. At the time of treaty making, First Nations would not have been sufficiently cognizant of British laws and perspectives, since their previous interaction and exchanges had been primarily through trading relationships. When treaty commissioners proposed a formula (usually called a land quantum formula) to determine how much land would be reserved for Indian nations, for example, it is doubtful that they would have understood the amount of land entailed in one square mile.84 Similarly, terms such as cede, surrender, extinguish, yield and forever give up all rights and titles appear in the written text of the treaties, but discussion of the meaning of these concepts is not found anywhere in the records of treaty negotiations. Even as treaty commissioners were promising non-interference with the Indian way of life, treaty documents referred to the Indian nations as "subjects of the Crown". Since First Nations patterned their relationships along kinship lines, they would have understood the relationship they were entering as being more akin to 'brothers' or 'partners' of the Crown. The First Nations also assumed, since they were being asked for land, that they were the ones giving land to the Crown and that they were the owners of the land. Indeed, the notion that the Crown was in any position to 'give' their land to them — for the establishment of reserves, for example — would have been ludicrous, since in many cases it had been their land since time immemorial. Written texts also placed limits on the agreements and promises being made, unbeknownst to the Indian parties. For example, written texts limiting hunting and fishing to Crown lands stand in contradiction to the oral promise not to interfere, in any way, with their use of wildlife and fisheries resources. These inherent conflicts and contradictions do not appear to have been explained to the Indian parties. However, it is also clear that both parties wanted to make treaties to secure their respective political and economic objectives. Both sides saw tangible rewards flowing from the treaties and each side worked to secure the terms and conditions they wanted in the treaty. Both parties pledged to honour and uphold their sacred and binding pacts. Each side brought something of value to bargain with — the First Nations brought capital in the form of their land and resources, and the Crown brought the promise of compensation and the promise not to interfere with their way of life and the use of their natural resources as they had in the past. Each believed they had secured their respective objectives — the Crown gained access to Indian lands and resources, and First Nations secured the guarantee of the survival and protection of their nationhood.

6. Non-Fulfilment of Treaties

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In the decades following the signing of the treaties, the Crown was able to realize the objectives it had set for itself in undertaking the treaty process. The treaty nations have not been so fortunate, in part for the reasons alluded to earlier but also because of Canadian governments' lack of commitment to the treaty relationship and to fulfilling their obligations. This has occurred for several reasons, and the reasons suggest some of the steps that should be taken to come to terms with these historical agreements and finally to implement them in their original spirit and intent.85 One of the fundamental flaws in the treaty-making process was that only the Crown's version of treaty negotiations and agreements was recorded in accounts of negotiations and in the written texts. Little or no attention was paid to how First Nations understood the treaties or consideration given to the fact that they might have had a completely different understanding of what had transpired. Another fundamental problem was the Crown's failure to establish the necessary laws to uphold the treaties it signed. Unlike the modern treaties of today, which have provisions for implementation, implementation of the historical treaties was virtually overlooked. Once treaties were negotiated, the texts were tabled in Ottawa and the commissioners who had negotiated them moved on to other activities. After 1867, the new dominion was occupied with immigration, settlement and nation building, and its treaties with the Indian nations were largely buried and forgotten in succeeding decades. Since the Indian department was located initially in the department of the interior, immigration and settlement took precedence in the corridors of power. Nor did the government's corporate memory with respect to the historical treaties survive within the Indian affairs administration. Accordingly, after treaties were made, unless they were described and explained explicitly and disseminated widely in government departments, the promises and understandings reached with First Nations would have been lost as officials changed jobs or moved on. This helps to explain the gradual distancing of officials from the treaties that they, as government officials, were charged with implementing. The financial situation of the new country also played a large part in the non-fulfilment of treaties and often meant that treaty obligations were seen as a burden on the treasury, with costs to be pared down to the bare minimum. Although the sale of Indian lands and resources often paid for the delivery of services and benefits to Indian people in certain parts of the country, the Crown did not involve First Nations in decisions about how proceeds from their lands would be used. The eclipse of treaties and the absenting of Indian people from decision making was pervasive, reinforced by Indian Act provisions that restricted Indian people to reserves and forbade them to pursue legitimate complaints about the non-fulfilment of treaties. Additionally, no effective office in government was ever given responsibility for fulfilling Crown treaty commitments. Implementation was left to a small group of civil servants without the knowledge, power or authority to act for the Crown in meeting treaty obligations or to hold off other government departments and the private sector if they had

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conflicting agendas.86 For example, treaties promised that reserve lands would never be taken away without the consent of the Indian signatories, but statute law provided that reserve lands could be expropriated from 1850 on.87 Thus federal statutes overrode treaty promises that Indian nations would never lose their lands. Many of the rights and promises recognized and affirmed by the treaties could be upheld only by an act of the legislature. But treaties were not sanctioned by legislation; they were executive actions of the Crown. This meant that they were not given the status they needed to be implemented properly; as a result, they would be eroded and undermined by Canadian laws. The treatment of fishing rights in treaties provides a good example. First Nations understood that treaty protection of their fishing rights was paramount. Yet, because of the public right of fishing in navigable waters, the Crown was not in a position to confirm such rights for its treaty partners without legislative enactments.88 In the absence of effective laws to implement treaties, the federal Indian administration fell back on the Indian Act. As time went on, basic treaty provisions such as annuities were provided for in the Indian Act to enable the federal government to deliver them.89 Although it does not recognize, affirm or otherwise acknowledge treaties, the Indian Act continues to be the only federal statute administering to Indians generally, including those with historical treaty agreements. This is despite the fact that, as of 1982, the constitution recognizes and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada. These are all indications that respect for the treaties and the obligation to fulfil them have not been priorities for governments in Canada or, indeed, for Canadians generally.

7. Restoring the Spirit of the Treaties If seen with broad vision, the story of Crown treaty making with First Nations is one of the richest depositories of meaning and identity for Canadians. It is a story that begins long before the Royal Proclamation of 1763 and connects the earliest forays of European fishermen to the shores of Newfoundland with the establishment of Nunavut at the end of the twentieth century. Aboriginal nations' contributions to Canada in sharing their wealth with the newcomers should be acknowledged and enshrined forever in Canadian history. Those contributions are unique and incomparable in their historical depth and in their practical significance to Canada today. Treaties recognized the separate existence of nations but also connected peoples by establishing links of partnership, common interests and shared ceremonies. The practice of dividing and connecting was extended to Europeans at an early stage, as reflected in the Two Row Wampum, a symbolic reminder of the separate but connected paths followed by the British and the Six Nations in the conduct of their relations. The Aboriginal world view of a universal sacred order, made up of compacts and kinship relations among human beings, other living beings and the Creator, was initially reinforced by the Crown's willingness to enter into treaties under Indian protocols. But

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subsequent denials of the validity and importance of the treaties have denigrated Aboriginal peoples' stature as nations and their substantial contribution to Canada. Unfortunately, non-Aboriginal people valued treaties as long as they continued to be useful, which often meant until land changed hands, settlements grew, and resources were extracted and converted into money. For their part, First Nations expected that treaties would grow more valuable with time, as the parties came to know each other better, trusted one another, and made the most of their treaty relationships. In the past, governments and courts in Canada have often considered these treaties instruments of surrender rather than compacts of co-existence and mutual benefit. This is the spirit of colonialism, the agenda of a society that believes it has no more need for friends because of its apparent wealth, power and superiority. The spirit of the treaties, by contrast, is the spirit of a time when the ancestors of today's Canadians needed friends and found them. It is time to return to the spirit of the treaties and to set a new course to correct the legalistic and adversarial attitudes and actions that have contributed to the badly deteriorated treaty relationships that exist between Aboriginal nations and Canada today.

8. Extending Measures of Control and Assimilation The nation of Canada was born on 1 July 1867. Within a federal political structure, a modern transcontinental society was to be fashioned and, as empire became nation, a new beginning was to be made. Work on the Confederation project had begun as early as 1858, and as the tempo quickened between 1864 and 1866 the 'Fathers' met in Charlottetown, Quebec and London. At those meetings, in the editorial pages of the colonial press and even on the hustings, the details of the federation and a pan-colonial consensus were hammered out. At no time, however, were First Nations included in the discussion, nor were they consulted about their concerns. Neither was their future position in the federation given any public acknowledgement or discussion. Nevertheless, the broad outlines of a new constitutional relationship, at least with the First Nations, were determined unilaterally. The first prime minister, Sir John A. Macdonald, soon informed Parliament that it would be Canada's goal "to do away with the tribal system and assimilate the Indian people in all respects with the inhabitants of the Dominion."90 Such a goal placed Canada in the vanguard of the empire-wide task of carrying the 'white man's burden', which was at one and the same time the duty of 'civilizing' Indigenous peoples, be they Maori, Aborigine or Zulu. This also became the justification for the extensive annexation of the homelands and resources of Indigenous peoples in Africa, Asia, Australia and North America. For Victorians this was a divinely ordained responsibility; for Canadians it was, at the level of rhetoric at least, a national duty. Looking forward from the western treaties, one of the principal government negotiators, Alexander Morris, prayed:

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Let us have Christianity and civilization among the Indian tribes...let us have a wise and paternal government...doing its utmost to help and elevate the Indian population, who have been cast upon our care...and Canada will be enabled to feel, that in a truly patriotic spirit, our country has done its duty to the red men...91 Parliament was moved to action. Though rarely consulting Aboriginal communities, it translated that duty into federal legislation such as the Indian Act and periodic amendments to it. It crafted educational systems, social policies and economic development plans designed to extinguish Aboriginal rights and assimilate Aboriginal people. The process began with the blueprint of Confederation, the British North America Act of 1867. It provided in section 91 that the "exclusive Legislative Authority of the Parliament of Canada extends to all matters within the class of subjects next herein-after enumerated" among which was section 24, "Indians, and Lands reserved for the Indians." Subsequently, the ethos of that legislative responsibility was revealed in the Enfranchisement Act of 1869. Rooted firmly in the imperial past, the act was conditioned by the Indian department's resolute insistence on enfranchisement. It brought forward the enfranchisement provisions of the act of 1857 and added, in the service of what was then adopted as the fundamental principle of federal policy, the goal of assimilation. In the act, traditional governments were replaced by 'municipal government', giving minor and circumscribed powers to the band while extensive control of reserves was assigned to the federal government and its representative, the Indian affairs department. In subsequent legislation — the Indian Acts of 1876 and 1880 and the Indian Advancement Act of 1884 — the federal government took for itself the power to mould, unilaterally, every aspect of life on reserves and to create whatever infrastructure it deemed necessary to achieve the desired end — assimilation through enfranchisement and, as a consequence, the eventual disappearance of Indians as distinct peoples. It could, for example, and did in the ensuing years, control elections and the conduct of band councils, the management of reserve resources and the expenditure of revenues, impose individual land holding through a 'ticket of location' system, and determine the education of Indian children. This legislation early in the life of Confederation had an even more wide-ranging impact. At Confederation two paths were laid out: one for non-Aboriginal Canadians of full participation in the affairs of their communities, province and nation; and one for the people of the First Nations, separated from provincial and national life, and henceforth to exist in communities where their traditional governments were ignored, undermined and suppressed, and whose colonization was as profound as it would prove to be immutable over the ensuing decades. For Aboriginal people, however, there was even further division — yet more separate paths. Federal legislative responsibility was restricted to Indians. The Métis people were disavowed, and Inuit were not recognized as a federal constitutional responsibility until

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1939 and then were exempted explicitly from the Indian Act in 1951.92 United perhaps in marginalization, Aboriginal communities nevertheless found themselves in separate administrative categories, forced to struggle alone and at times even against each other, to achieve any degree of de-colonization. Furthermore, the Indian Act empowered the department to decide who was an Indian on the basis of definitions determined not in consultation with communities but unilaterally by Parliament, which created more division by distinguishing between 'status' and 'nonstatus' Indians. Excerpt from the Enfranchisement Act of 1869 CAP VI. An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of Act 31st Victoria, Chapter 42 [assented to 22 June, 1869.]

12. The Chief or Chiefs of any Tribe in Council may frame, subject to confirmation by the Governor in Council, rules and regulations for the following subjects, viz: 1. The care of the public health. 2. The observance of order and decorum at assemblies of the people in General Council, or on other occasions. 3. The repression of intemperance and profligacy. 4. The prevention of trespass by cattle. 5. The maintenance of roads, bridges, ditches and fences. 6. The construction of and maintaining in repair of school houses, council houses and other Indian public buildings. 7. The establishment of pounds and the appointment of pound-keepers. Source: Statutes of Canada 1869, chapter 6 (32-33 Victoria)

Not surprisingly, for it was nineteenth-century legislation, the Indian Act introduced unequal treatment for men and women. While 'status' Indian men could not lose their status except by enfranchisement, the act of 1869 added the proviso that "any Indian woman marrying any other than an Indian shall cease to be an Indian...nor shall the children issue of such a marriage be considered as Indians". Over the course of Canada's first century, therefore, an ever growing number of Indian women and their children were lost to their communities and saw their existence as Aboriginal persons simply denied by the federal government. For the authors of this colonial system, the separate paths were to run to a single destination. Their national vision was the same for all Aboriginal people, whether men, women or children, 'status' or 'non-status', Indian, and Métis or Inuit. As their homelands

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were engulfed by the ever expanding Canadian nation, all Aboriginal persons would be expected to abandon their cherished lifeways to become 'civilized' and thus to lose themselves and their culture among the mass of Canadians. This was an unchanging federal determination. The long-serving deputy superintendent general of Indian affairs, Duncan Campbell Scott, assured Parliament in 1920 that "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".93 Challenging the Change The Six Nations have insisted consistently on their independent status, despite what Canada has claimed. This is the first such statement in the post-Confederation period. It also indicates the split in the community that would plague the Six Nations for generations, between those prepared to operate under the terms of the federal legislation and those wanting to maintain traditional relationships and structures. The nature of the text suggests it was prepared independently, without the aid of the local missionary or Indian department clerk, which was the usual procedure. Oshweken Council House of the Six Nations Indians 17 August 1876 To the Honourable Mr. D. Laird Superintendent of Indian Affairs We the undersigned Chiefs & Members of the Six United Nation Indian Allies to the British Government residing on the Grand River, Township of Tuscarora, Onondaga and Oneida, in the counties of Brant and Haldimand Ont., to your Honourable our Brother by the treaty of Peace we thought it is fit and proper to bring a certain thing under your Notice which is a very great hindrance and grievance in our council for we believe in this part it is your duty to take it into consideration with your government to have this great hindrance and grievance to be removed in our council and it is this, one says we are subjects to the British Government and ought to be controled under those Laws which was past in the Dominion Parliament by your Government you personally, and the others (That is us) says we are not subjects but we are Allies to the British Government; and to your Honourable our Brother we will now inform you and your Government, personally, that we will not deny to be Allies but we will be Allies to the British Government as our forefathers were; we will further inform your Honourable our Brother and to your Government that we do now seprate from them henceforth we will have nothing to do with them anymore as they like to be controled under your Laws we now let them go to become as your own people, but us we will follow our Ancient Laws and Rules, and we will not depart from it. Ononadaga Chiefs [signed by 33 chiefs]

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Source: NAC RG10, Red Series, volume 1995, file 6897, MR C11130, 17 August 1876 [original spelling and punctuation preserved].

All of this was justified, in the minds of successive generations of politicians and departmental officials like Scott, by a sincere, Christian certainty that the nation's duty to the original people of the land was "to prepare [them] for a higher civilization by encouraging [them] to assume the privileges and responsibilities of full citizenship". In the case of First Nations, Parliament, though it rarely provided adequate financial support, was only too willing to lend the weight of increasingly coercive legislation to the task, tightening departmental control of Indian communities in the service of economic and social change. In 1884 and 1885, the potlatch and the sundance, two of the most visible and spiritually significant aspects of coastal and plains culture respectively, were outlawed, although in practice the prohibition was not stringently enforced. The potlatch was portrayed as "the most formidable of all obstacles in the way of the Indians becoming Christian or even civilized".94 Participation in the potlatch was made a criminal offence, and it was also illegal to appear in traditional costume or dance at festivals. In 1921 Duncan Campbell Scott issued revealing instructions to his agents: It is observed with alarm that the holding of dances by the Indians on their reserves is on the increase, and that these practices tend to disorganize the efforts which the Department is putting forth to make them self-supporting. ...You should suppress any dances which cause waste of time, interfere with the occupations of the Indians, unsettle them for serious work, injure their health, or encourage them in sloth and idleness.95 The pass system allowed the department to regulate all economic activity among communities, including adjacent non-Aboriginal ones. No one who had not obtained an agent's leave would be allowed, on an Indian reserve, to barter, directly or indirectly, with any Indian, or sell to him any goods or supplies, cattle or other animals, without the special licence in writing.96 The restrictive constitutional circle drawn around First Nations by the governance sections of the Indian Act was duplicated in the economic sector by this special licence and by other provisions of the act that isolated communities from normal sources of financing, making them wholly dependent on the funding whims of the government. Furthermore, communities found themselves isolated from resources, making their economic circumstances even more tenuous. At Confederation, ownership and control of Crown land and resources was assigned to the provincial partners. In the northwest, land and resources were given initially to the dominion government to enable it to sponsor

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settlement. That was changed in 1930, however, with passage of the natural resources transfer agreements with the three prairie provinces. In these the federal government failed to take "any precaution, apparently, to safeguard the sacred trusts which had been guaranteed to the Indians by treaty."97 Thereafter, Aboriginal access to off-reserve resources was controlled across the country by provinces — which, of course, had no responsibility for First Nations. Outside reserves, in trapping, hunting, fishing and in such traditional activities as wild rice harvesting, Aboriginal people faced licensing systems, provincial management programs, game wardens, and all too often fines and imprisonment, as well as the restrictions of international wildfowl conventions signed by the federal government. Excerpt from the Indian Act, 1876 CHAP. 18. An Act to amend and consolidate the laws respecting Indians. [Assented to 12th April 1876.]

TERMS 3.3 The term "Indian" means First. Any male person of Indian blood reputed to belong to a particular band; Secondly. Any child of such person; Thirdly. Any woman who is or was lawfully married to such person: (a) Provided that any illegitimate child, unless having shared with the consent of the band in the distribution moneys of such band for a period exceeding two years, may, at any time, be excluded from the membership thereof by the band, if such proceeding be sanctioned by the Superintendent-General: (b) Provided that any Indian having for five years continuously resided in a foreign country shall with the sanction of the Superintendent-General, cease to be a member thereof and shall not be permitted to become again a member thereof, or of any other band, unless the consent of the band with the approval of the Superintendent-General or his agent, be first had and obtained; but this provision shall not apply to any professional man, mechanic, missionary, teacher or interpreter, while discharging his or her duty as such: (c) Provided that any Indian woman marrying any other than an Indian or a nontreaty Indian shall cease to be an Indian in any respect within the meaning of this Act, except that she shall be entitled to share equally with the members of the band to which she formerly belonged, in the annual or semi-annual distribution of their annuities, interest moneys and rents; but this income may be commuted to her at any

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time at ten years' purchase with the consent of the band: (d) Provided that any Indian woman marrying an Indian of any other band, or a nontreaty Indian shall cease to be a member of the band to which she formerly belonged, and become a member of the band or irregular band of which her husband is a member: (e) Provided also that no half-breed in Manitoba who has shared in the distribution of half-breed lands shall be accounted an Indian; and that no half-breed head of a family (except the widow of an Indian, or a half-breed who has already been admitted into treaty), shall, unless under very special circumstances, to be determined by the Superintendent-General or his agent, be accounted an Indian, or entitled to be admitted into any Indian treaty. The Indian Act further facilitated the imposition of the government's assimilative will by insisting on conformity with Canadian social mores and providing penalties for noncompliance. Non-Aboriginal concepts of marriage and parenting were to prevail. The department could, for example, stop the payment of the annuity and interest money of, as well as deprive of any participation in the real property of the band, any Indian who is proved, to the satisfaction of the Superintendent General, guilty of deserting his family, or of conduct justifying his wife or family in separating from him...[and] may also stop the payment of the annuity...of any Indian parent of an illegitimate child...98 Those who failed to comply with any of the myriad social and economic regulations faced fines or imprisonment in a legal system whose integrity was undermined when Indian agents were made justices of the peace. The department then had the power to make and to enforce regulations, which had the force of law, with regard to the full spectrum of public and private life in communities. Aboriginal traditions — ritual life, social organization and the economic practices of communities — were not only obstacles to conversion and civilization, but could be declared by Parliament or by departmental regulation to be criminal behaviour. Agents, appointed as magistrates, were to regulate the behaviour of their Aboriginal wards according to the Act Respecting Offences against Public Morals and Public Convenience, bringing into play the alien Victorian morality encoded in it (see Chapter 9). The Hypocrisy of the Potlatch Law Excerpt from correspondence from Chief Maquinna in defence of the potlatch, published in The Daily Colonist, Victoria, B.C., 1 April 1896, under the heading "The Nootka Chief Speaks": ...a whiteman told me one day that the white people have also sometimes masquerade balls and white women have feathers on their bonnets and the white chiefs give prizes for those who imitate best, birds or animals. And this is all good when white men do it but very bad when Indians do the same thing. The white chiefs

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should leave us alone...they have their games and we have ours. ...The potlatch is not a pagan rite; the first Christians used to have their goods in common as a consequence must have given 'potlatches' and now I am astounded that Christians persecute us and put us in jail for doing as the first Christians. Maquinna X (his mark) Chief of Nootka By far the most ambitious and tragic initiative, however, was the joint government and church residential school program. Introduced originally for Indian children, the system would eventually draw children from almost every Aboriginal community — Indian, Métis and Inuit — across the country. Beginning in 1849, the program developed to include boarding schools, built close to the reserves for children between the ages of 8 and 14, and industrial schools, placed near non-Aboriginal urban centres to train older children in a range of trades. The schools — 80 of them at the high point — were the centrepiece of the assimilation strategy. As pupils in boarding institutions whose affairs were conducted wholly in English (or French, in some of the schools in Quebec), the children were separated "from the deleterious home influences to which [they] would be otherwise subjected" and brought into contact with "all that tends to effect a change in [their] views and habits of life".99 Canada, through the agency of the department and the churches, presumed to take over the parenting of Aboriginal children so that they "could take their place anywhere among the people of Canada".100 It did not discharge its selfappointed task in a manner Canadians can be proud of. From the outset, there were serious problems with residential schools. There was never enough funding, and thus the buildings, often badly designed and constructed, deteriorated quickly. Bad management, unsanitary conditions and abuse of the children were more than occasional exceptions to the rule. Parents, and indeed many local agents, were reluctant to send children to the schools, particularly the industrial schools, which were far away and seemed to benefit neither the child nor the community. The department, unable to get adequate funding from Parliament or contributions from the churches, abandoned the ambitious industrial school model by 1920. Thereafter, the emphasis was placed on the boarding schools which, while less expensive, were judged by accepted standards of child care and education to be a dismal failure, leaving deep scars across communities and the conscience of a nation. The removal of children from their homes and the denial of their identity through attacks on their language and spiritual beliefs were cruel. But these practices were compounded by the too frequent lack of basic care — the failure to provide adequate food, clothing, medical services and a healthful environment, and the failure to ensure that the children were safe from teachers and staff who abused them physically, sexually and emotionally. In educational terms, too, the schools — day and residential — failed dramatically, with participation rates and grade achievement levels lagging far behind those for nonAboriginal students (see Chapter 10).

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When a joint committee of the Senate and the House of Commons on the Indian Act met in Ottawa in 1946, the members, looking out across Aboriginal Canada, could not see the progressive results of the assimilation strategy that had been forecast so consistently by the department since Confederation. Voluntary enfranchisements were rare. But more tragically the pre-conditions for enfranchisement — social and economic change and positive community development to enable Aboriginal people to enjoy the standard of living of other Canadians — were not readily apparent. Rather, in every category — health, employment, education and housing — the conditions endured by Aboriginal people made them what they were in constitutional affairs: second class citizens. Across the country, communities were trapped in a colonial system that denied them any degree of self-determination, consigned them to poverty, corroded families and individuals, and made them too often the objects of social welfare agencies and penal institutions. When Duncan Campbell Scott retired from the department in 1933, he had clearly left unresolved the "Indian problem". There it still was in 1946. But in evidence as well was the continuing determination of Aboriginal peoples not to let the government "break them to pieces", to defend their culture and to seek the good life on their own terms. At banned potlatches and hidden thirst dances, at Dene gatherings, in Iroquois longhouses and on across the North and the Maritimes, the peoples had continued to gather to express and celebrate their cultures. This determination had taken new forms as well. Modern political organizations with talented leaders were developed. Such leaders were determined to become a central part of the solution — not to the "Indian problem", but to the problem of colonialism by struggling for self-determination within Confederation on the basis of recognition of the worth of Aboriginal peoples' contribution and of the contribution of their culture to the nation. As early as 1918, F.O. Loft declared, when organizing the League of Indians, the first attempt at a national organization: In politics, in the past they [Indian people in Canada] have been in the background.... As peaceable and law-abiding citizens in the past, and even in the late war, we have performed dutiful service to our King, Country and Empire, and we have the right to claim and demand more justice and fair play as recompense, for we, too, have fought for the sacred rights of justice, freedom and liberty so dear to mankind, no matter what their colour or creed. The first aim of the League then is to claim and protect the rights of all Indians in Canada by legitimate and just means; second, absolute control in retaining possession or disposition of our lands; that all questions and matters relative to individual and national wellbeing of Indians shall rest with the people and the dealings with the Government shall be by and through their respective band Councils.101

9. Conclusion

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In this third stage, which we have called displacement and assimilation, we have noted how non-Aboriginal western society has become predominant in population and in power terms. Thus it has had the capacity to impose its will on Aboriginal societies — and it has also been motivated to do so. The motivation was in part economic, as the commercial economy based on the fur trade and other natural resources was pushed from centre stage and replaced by the drive for expansionary settlement of the continent and for agricultural and, later, industrial production. In this context, from a western perspective, Aboriginal peoples were seen to stand in the way, for they inhabited and claimed title to vast stretches of land. The transition in the relationship was also pushed by the western belief in 'progress' and in the evolutionary development of human beings from lesser to greater states of civilization. Long-standing western beliefs in racial and cultural superiority were given a scientific veneer during this stage, as theories such as those linking intelligence to the size of the brain came into play and theories of evolution were used to justify racist assumptions. This was accompanied by a belief in the destiny of European cultures to expand across North America and eventually to take over the whole land base. In this perspective, western society was seen to be at the forefront of evolutionary development, with Aboriginal peoples lagging far behind. As a result, Aboriginal peoples needed to be protected in part, but also guided — even required — to catch up, in a process of accelerated evolution. Relegated in this way to a secondary position, they were not regarded as appropriate participants in discussions of a changed relationship (such as Confederation and the subsequent admission of new provinces to the federation). Rather, decisions were made unilaterally, and a centralized administrative system was established to bring about directed change. These ideas of how the relationship should be changed were profoundly at odds with Aboriginal conceptions of how relations in human societies and with the natural world should be conducted. In this period, Aboriginal peoples sought to continue the terms of the original relationship — a relationship of equality among nations, where each retained its autonomy and distinctiveness, where each had a separate as well as a shared land base, and where the natural world was respected.102 Resistance was particularly strong with respect to efforts to assimilate Aboriginal people or to merge Aboriginal and western societies into one — based, of course, on the western model. If successful, this attempt to eliminate the distinctive features of Aboriginal societies would, from an Aboriginal perspective, have destroyed the balance of life, which requires that each of the societies originally created be maintained in order to sustain the overall functioning of the universe. This is not to say that, from an Aboriginal perspective, the relationship needed to remain unchanged. Adjustments could be made in the shared land and resource base, for example, as western settlers increased in number. If changes were required, from an Aboriginal perspective they should be made through a process of continuing dialogue and

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mutual agreement, a process of creating a harmonious environment in which a middle ground could be achieved. This was more likely to happen if concepts such as sharing (lands, resources, or powers) were adopted, instead of concepts such as win-lose or extinguishment. In contrast to western society's linear conception of progress and evolution, Aboriginal conceptions continued to be based on the concept of the circle. For example, western conceptions spoke of the evolution of different forms of production from simple to more complex, with the latter replacing the former over time (and never to return to them again). By contrast, Aboriginal perspectives continued to emphasize diversity and local autonomy. In this view, different groups have adopted ways of life best suited to their local needs and circumstances; each is equally valid and should not be expected to change unless the group believes that a different model would meet their needs better. In discussing the previous stage, early contact and co-operation, we suggested that even if Aboriginal and non-Aboriginal societies did not have a shared perspective on the relationship, it was still possible for the fundamental elements of the Aboriginal perspective to be realized in practice. In the period of displacement, there was no ambiguity. The two perspectives were clearly different, and the non-Aboriginal society had the capacity to impose its will. In Mark Dockstator's view, the result was a dysfunctional relationship: From one perspective, Aboriginal society was subjected to the external forces of Western society which were designed to displace Aboriginal society... At the same time and in contrast to this external pressure, Aboriginal society was attempting to maintain the nation-to-nation relationship... The dysfunctional nature of the societal relationship caused by the action of two opposite forces on Aboriginal society was further exacerbated by the imposition of a Westernbased administrative system. One of the purposes of the system is to place boundaries, or parameters of acceptable behaviour and actions, around Aboriginal society. By restricting and thereby controlling the lifestyle of Aboriginal people, the administrative system acted to isolate Aboriginal society from both mainstream society and the larger physical environment. Consequently, the social ills resulting from the imbalance of Aboriginal society were "turned inward"; the natural release mechanisms employed by Aboriginal society to vent "negative forces" were foreclosed by the operation of the Western administrative system.103 As we have seen from the accounts of key events and issues during this stage, the period of displacement did great damage to Aboriginal societies. They were not defeated, however. Resistance at times took the form of passive non-cooperation (for example, with respect to the enfranchisement initiative), at times defiant continuation of proscribed activities (with respect to the potlatch and the sundance, for instance), and in more recent decades it has taken the form of vocal and organized opposition.

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From the perspective of non-Aboriginal society, especially those charged with the conduct of the relationship, it became evident over time that the isolation/assimilation strategy was not working. As early as the first decade of the 1900s, some missionaries and civil servants recognized the lack of success of the industrial and residential schools. By the end of the second decade, efforts were being made to modify the strategy, although initially the direction of change was to tighten the screws of the system rather than to consider alternatives. Thus, the Indian Act of 1927 contained stronger measures to intervene in and control the affairs of Aboriginal societies, including further efforts to develop an agricultural economy in the expectation that social and cultural change would follow in its wake. That act was also notable for its response to Aboriginal political organizations pursuing land issues, especially in British Columbia. An amendment was added making "raising a fund or providing money for the prosecution of any claim" a crime unless permission was obtained.104 After the Second World War, the search for new approaches to policy continued, especially through the hearings of a joint committee of the Senate and the House of Commons sitting between 1946 and 1948. This provided an occasion for Aboriginal interveners and others to state in strong terms the problems with the existing relationship, but the committee's report was a major disappointment. The recommendations suggested the removal of many of the more coercive elements of the Indian Act (and this was accomplished with the amendments of 1951), but the changes fell far short of challenging the prevailing assimilationist framework. Twenty years later, there was another opportunity to hear Aboriginal voices, as the federal government worked toward a new policy, but again there was major disappointment with the result. The "Statement of the Government of Canada on Indian Policy, 1969" ignored the consultations that accompanied the policy review and proceeded to recommend measures designed to achieve integration and equality: Indian people were to be allowed to retain their cultures, much as other Canadians do in a multicultural society, but they were to give up the other features that make them distinct — elements such as treaties, Aboriginal rights, exclusive federal responsibility, and the department of Indian affairs. The overwhelmingly hostile response to this policy initiative on the part of Aboriginal people, and subsequent court decisions that recognize the validity of Aboriginal and treaty rights, marked an important turning point in the relationship.

Notes: 1 J.R. Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada, revised edition (Toronto: University of Toronto Press, 1989), p. 92. 2 Robin Fisher, Contact and Conflict: Indian-European Relations in British Columbia, 1774-1890 (Vancouver: University of British Columbia Press, 1977), chapters 1 and 2.

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3 D.K. Fieldhouse, The Colonial Empires: A Comparative Survey from the Eighteenth Century (London: Weidenfeld and Nicolson, 1965). 4 However, more centralized structures emerged in the southeastern United States and, of course, among societies such as the Aztec and the Inca. See Alvin M. Josephy, Jr., 500 Nations (New York: Alfred A. Knopf, 1994); Ronald Wright, Stolen Continents: The New World Through Indian Eyes Since 1492 (Toronto: Viking Penguin, 1992); and Betty Ballantine and Ian Ballantine, ed., The Native Americans: An Illustrated History (Atlanta: Turner Publishing, Inc., 1993). 5 This account is enlarged upon in Chapter 9, where we discuss the Indian Act. 6 Some people of mixed Aboriginal/non-Aboriginal ancestry and culture refer to themselves or are labelled by others as Métis, regardless of their geographic location or region of origin. The Commission also uses this designation, but recognizes that the term Métis Nation refers to Métis people who identify as a nation with historical roots in the west. For further discussion, see Volume 4, Chapter 5. 7 John Leslie documents six formal commissions of inquiry launched by British officials in the period between 1828 and 1859. He argues that the search for ways to reduce the cost of Indian administration in Canada was an important motivation in establishing the commissions. “The legacy of these reports for Canadian Indian policy has been so enduring that, only recently, has the Federal government attempted to break from the long-standing view of Native peoples and society established before Confederation.” John F. Leslie, Commissions of Inquiry into Indian Affairs in the Canadas, 1828-1858: Evolving a corporate memory for the Indian department (Ottawa: Indian Affairs and Northern Development, February 1985), p. ii. 8 Laprairie (1649), Becancourt (1680), Oka (1714) and St. Regis (1759). For a discussion of the establishment of these reserves, see G.F.G. Stanley, “The First Indian ‘Reserves’ in Canada”, Revue d'histoire de l'Amérique française 4/2 (September 1950), pp. 178-185. 9 The British may have drawn on the examples provided by New France, but there were many other examples of religious and protected settlements in colonial British North America. 10 The origin of reserves in Ontario and other parts of Canada is described in Richard H. Bartlett, Indian Reserves and Aboriginal Lands in Canada: A Homeland (Saskatoon: University of Saskatchewan Native Law Centre, 1990), pp. 10-14. 11 See Leslie, Commissions of Inquiry (cited in note 7). 12 For a brief discussion of the situation in the Maritimes, see Bartlett, Indian Reserves and Aboriginal Lands (cited in note 10), pp. 14-15. Concerning the history of the Maritime provinces, see also Leslie F.S. Upton, Micmacs and Colonists: Indian-White Relations in the Maritimes, 1713-1867 (Vancouver: University of British Columbia Press, 1979).

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13 The Conne River Band was created by federal order in council (P.C. 1984-2273), 28 June 1984. 14 At that time, Vancouver Island and British Columbia were separate Crown colonies. 15 Frank Cassidy and Norman Dale, After Native Claims? The Implications of Comprehensive Claims Settlements for Natural Resources in British Columbia (Halifax and Lantzville, B.C.: Institute for Research on Public Policy and Oolichan Books, 1988), p. 6. 16 National Archives of Canada, Record Group 10 [NAC RG10], volume 252, part 2. 17 In any event, the development of distinct Métis communities was not primarily a question of intermarriage, but one of growing cultural uniqueness and group selfconsciousness. 18 The application of the Royal Proclamation to much of the territory where Métis people lived was questionable, in any event, since it apparently exempted both existing colonies and the vast territory of the Hudson’s Bay Company, Rupert’s Land, from the land reserved for Indian use. A later order in council, passed in 1870 and applicable explicitly to Rupert’s Land, used the terms “Indian tribes” and “Aborigines”. For a more extensive discussion of the 1870 order, see Volume 4, Chapter 5. 19 Report of the Chief Superintendent of Indian Affairs, 1845, quoted in Martin F. Dunn, “All My Relations: The Other Métis”, discussion paper prepared for the Royal Commission on Aboriginal Peoples [RCAP] (April 1994). For information about papers prepared for RCAP, see A Note About Sources at the beginning of this volume. 20 Jacqueline Peterson, “Many roads to Red River: Métis genesis in the Great Lakes region, 1680-1815”, in The New Peoples: Being and Becoming Métis in North America, ed. Jacqueline Peterson and Jennifer S.H. Brown (Winnipeg: University of Manitoba Press, 1985), p. 44. 21 The term ‘half-breed’, offensive today, was the usual English equivalent of the term Métis at that time and is used here in the absence of any other appropriate expression to distinguish the English-speaking group from their French-speaking counterparts. 22 Peterson, “Many roads to Red River” (cited in note 20), p. 64. 23 A.M. Burgess to T.M. Daly, Minister of the Interior, 27 March 1895, attached to Order in Council P.C. 3723, 28 December 1895. 24 The relationship between earlier peace and friendship treaties and these later land purchase or land surrender agreements is not clear. The land surrenders between 1763 and 1850 appear to be land transactions rather than treaties based on mutual obligations and exchange, as was the case with the earlier treaties and the numbered treaties to follow.

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25 NAC RG10, volume 5, number 2082-2084, 3 April 1829, “A Statement of the Mississaugue Indians settled at Credit River, Agreed on in their Council”. (The Mississauga are Ojibwa and inhabited most of southcentral Ontario at the time of British settlement in the late eighteenth century.) 26 Wesleyan Methodist Report, 1857 (Toronto: Wesleyan Methodist Church of Canada Annual Reports, 1828-1885), p. xxiii. 27 The reliability, accuracy and completeness of treaties and land surrenders during this early period are identified and analyzed by Patricia Kennedy in “Treaty Texts: When Can We Trust the Written Word?”, Social Sciences and Humanities Aboriginal Research Exchange 3/1 (Spring/Summer 1995). 28 Thalassa Research, “Nation to Nation: Indian Nation/Crown Relations in Canada”, research study prepared for RCAP (1994). (For information about research studies prepared for RCAP, see A Note About Sources at the beginning of this volume.) This study provides examples of frauds and abuses in the sale of Indian lands. The report demonstrates that much if not most of the revenues from ‘surrenders’ were used for purposes other than the benefit of the Indian nations that had surrendered the land. Further, the policy of the colonial administration was to make the Indian department financially self-sufficient through the sale of Indian lands. In short, the Indians paid for their own benefits but had no control over the expenditures. See Leslie, Commissions of Inquiry (cited in note 7), pp. 145, 146. 29 Ian Johnson, “British-Tribal Relations in the Colonial Period”, unpublished manuscript (Union of Ontario Indians, 1986). 30 Olive Dickason, Canada's First Nations: A History of Founding Peoples from Earliest Times (Toronto: McClelland & Stewart, 1992), p. 238. 31 NAC RG 10, volume 262, part 1, no. 1436. 32 It was the practice of governments before and after Confederation to appoint senior public officials as commissioners to conduct treaty negotiations on their behalf. William McDougall, for example, was superintendent general of Indian affairs. For simplicity, we use the term commissioner in this discussion of treaty making. 33 Report from William McDougall to His Excellency the Governor General in Council, 3 November 1862, in Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (Toronto: Belfords, Clarke & Co., 1880; facsimile edition, Coles Publishing Company, 1979), p. 23. 34 W.R. Wightman, Forever on the Fringe: Six Studies in the Development of Manitoulin Island (Toronto: University of Toronto Press, 1982), pp. 40-46.

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35 James Morrison, “The Robinson Treaties of 1850: A Case Study”, research study prepared for RCAP (1993). 36 Morrison, “The Robinson Treaties”. 37 Morris, Treaties of Canada (cited in note 33), p. 303. 38 Morrison, “The Robinson Treaties” (cited in note 35). This study provides an in-depth account of treaty negotiations from both the Crown and the Indian perspective. 39 Morrison, “The Robinson Treaties”. 40 Lewis H. Thomas, The Struggle for Responsible Government in the North-West Territories, 1870-97, second edition (Toronto: University of Toronto Press, 1978). 41 Historians who have studied the numbered treaties have often done so in the form of an examination of a particular treaty in a particular region, bringing to bear pieces of documentary evidence and oral history. This approach brings out the differences from one treaty area to another in what was discussed, understood and concluded. There is a continuing debate on such important issues as the treatment of land and political sovereignty in treaty negotiations. See, for example, Jean Friesen, “Magnificent Gifts: The Treaties of Canada with the Indians of the Northwest 1869-76”, in Transactions of the Royal Society of Canada, series V, volume 1 (1986), pp. 41-51; René Fumoleau, As Long As This Land Shall Last: A History of Treaty 8 and Treaty 11 1870-1939 (Toronto: McClelland and Stewart Limited, 1975); Richard Price, ed., The Spirit of the Alberta Indian Treaties (Montreal: Institute for Research on Public Policy, 1979). 42 Doctors and other forms of medical care were discussed in other treaties as well; see Kenneth S. Coates and William R. Morrison, Treaty Ten, 1906 (Treaties and Historical Research Centre, Indian and Northern Affairs, 1986), pp. 66-67. 43 Morris, The Treaties of Canada (cited in note 33), pp. 13-15. For a discussion of the Selkirk Treaty, see Jim Gallo, “The Yellow Quill Band and The Land Question: The 1906 Expropriation and the 1908 Land Surrender of part of Swan Lake Reserve I.R. No. 7” (Treaties and Aboriginal Rights Research, May 1977, revised March 1978). 44 The discussions among the Indian nations revolved around who had the authority to make the Selkirk Treaty on behalf of the Indian nations, since the Red River territory had been occupied by the Cree, the Assiniboine, the Sioux and, more recently, the Ojibwa. 45 John L. Tobias, “Canada’s Subjugation of the Plains Cree, 1879-1885”, Canadian Historical Review LXIV/4 (December 1983), p. 520. 46 Morris, Treaties of Canada (cited in note 33), p. 26. The Indians at Portage, in turning back settlers as soon as they passed the Selkirk Treaty boundary, gave notice that they were protecting their lands, which included everything outside the Selkirk Treaty boundaries.

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47 Morris, Treaties of Canada, p. 37. 48 Morris, Treaties of Canada, pp. 28, 29. 49 An account of the discussions on these matters is found in D.J. Hall, “‘A Serene Atmosphere’? Treaty 1 Revisited”, Canadian Journal of Native Studies 4/2 (1984), pp. 321-358. 50 The negotiations concerning land were difficult because Lieutenant Governor Archibald wanted to maximize the number of immigrants who could be settled on the land, which meant whittling down the size of the Indian land base, but the Indians would not agree to this proposition. 51 Morris, Treaties of Canada (cited in note 33), p. 126. 52 Department of Public Works, Record Group 11 [DPw RG11], volume 265, S.J. Dawson, report to the government, 1864. 53 DPw RG11, report to the government, 1861. 54 Henry Youle Hind, Narrative of the Canadian Red River Exploring Expedition of 1857 and of the Assiniboine and Saskatchewan---, two volumes (London: Longman, Green, Longman, and Roberts, 1869; reprinted New York: Greenwood Press, 1969), p. 99. 55 DPw RG11, volume 265, report to the government, 1869. 56 Morris, Treaties of Canada (cited in note 33), pp. 59-62. The words “give them up again” refer to the failure to compensate them adequately for the Dawson route. 57 Morris, Treaties of Canada, p. 72. 58 This was not always the case, as evidenced by the Lubicon Cree and others who were missed by treaty commissioners in their forays to get adhesions. 59 Commissioner Alexander Morris negotiated Treaties 4, 5 and 6 with the Cree, Saulteaux, Assiniboine and Dene nations across Manitoba, Saskatchewan and Alberta. Commissioner David Laird negotiated Treaty 7 with the Blackfoot, Sarcee, Blood and Stoney nations. 60 Morris, Treaties of Canada (cited in note 33), p. 10. 61 The Cree, Ojibwa and Assiniboine were allies, and the Blackfoot Confederacy consisted of four nations — Blackfoot, Blood, Sarcee, and Peigan. The territorial domain of the Blackfoot and Assiniboine extended into the United States. John Taylor notes that “Until settlement altered the population ratio the Indian warrior was a military factor to be taken seriously. Settlement and development could only be carried out if steps were taken to obtain native acquiescence.” See John L. Taylor, “Development of Canadian

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Policy for the North-West, 1869-79”, PHD dissertation, Queen’s University, Kingston, 1975, pp. 267-268. 62 It is clear that the buffalo were still available to hunt in 1877, since treaty commissioners travelling from Battleford to Fort McLeod during the summer of 1877 reported seeing many small herds of buffalo on the plains. See Morris, Treaties of Canada (cited in note 33), p. 252. 63 Piapot and the Assiniboine Chiefs were not present for negotiations in 1874. A year later commissioners were told by those absent in 1874 that they believed that a treaty had not been made: “An idea seemed prevalent among the Indians who were absent last year that no treaty had been concluded then; that all which had been done at that time was merely preliminary to the making of the treaty in reality, which they thought was to be performed this year.” Morris, Treaties of Canada, report from W.J. Christie, Indian commissioner, and M.G. Dickieson on the Qu’Appelle Treaty, p. 86. 64 Morris, Treaties of Canada, pp. 141-142. Morris refers to the fact that the Saulteaux (Ojibwa) were in contact with their Ojibwa brothers in Treaties 1, 2 and 3. 65 Morris, Treaties of Canada, pp. 143-144. 66 Morris, Treaties of Canada, pp. 170-171. The Cree wanted a strong law to prevent the use of strychnine, which had almost exterminated the animals and whose use had created tensions between non-Aboriginal people and the Indigenous peoples of the plains. For years they had also been sending messages to the Crown asking for laws to halt the slaughter of the buffalo. 67 Morris, Treaties of Canada, p. 173, report from Reverend McDougall. 68 Quoted in Morris, Treaties of Canada, p. 176. 69 Morris, Treaties of Canada, p. 204. 70 “A medicine chest will be kept at the house of each Indian agent, in case of sickness amongst you.” Quoted in Morris, Treaties of Canada, p. 218. 71 According to the reports tabled on the making of Treaty 7, there were open hostilities between the Blackfoot, south of the border, and U.S. troops. A treaty had been made between the government of the United States and the Blackfoot in 1855. 72 Morris, Treaties of Canada, p. 248. 73 Morris, Treaties of Canada, Blackfoot Treaty, pp. 267-269. 74 Morris, Treaties of Canada, pp. 245-275.

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75 NAC RG10, volume 3848, file 75236-1, James Walker to Clifford Sifton, 30 November 1897. 76 NAC RG10, volume 3848, file 75236-1, Forget to Secretary of Indian Affairs, 25 April 1898. 77 NAC, Church Missionary Society MG17 B2, microfilm A-120, document 68, G. Holmes to Committee, 3 April 1899. 78 Affidavit of J.A.R. Balsillic, quoted in Appendix II of Fumoleau, As Long As This Land Shall Last (cited in note 41), p. 79 Meeting at Lesser Slave Lake, quoted in Fumoleau, As Long As This Land Shall Last, pp. 74-75. 80 Fumoleau, As Long As This Land Shall Last, p. 41. 81 Fumoleau, As Long As This Land Shall Last, p. 216. 82 Fumoleau, As Long As This Land Shall Last, p. 216. 83 Re Paulette, [1973] 6 W.W.R. 97 and 115, quoted in Dennis F.K. Madill, Treaty Research Report, Treaty Eight (Ottawa: Treaties and Historical Research Centre, Indian and Northern Affairs, 1986). 84 Whether the woodland and plains nations, which were not familiar with farming, would have understood such a formula is questionable. Acreages might have been familiar to those who farmed or had small gardens but to woodland and plains peoples who did not farm, and who described their lands by their geographic boundaries or the time it took to travel in one day, the land quantum formula found in treaties was likely incomprehensible. There appears to have been little discussion of what this formula entailed in most of the treaty negotiations. 85 The Commission’s conclusions regarding the steps that must be taken with respect to the treaties are elaborated in Volume 2, Chapter 2. 86 Historically, the interpretation of Indian rights often resided with a small group of government officials who have tended not to adopt an expansive interpretation of Indian treaties. This has often meant that public policy on key issues has been based on a narrow interpretation of jurisprudence. 87 Clauses in the treaties provided that Indian lands could be expropriated for public works, but these clauses were not explained to First Nations representatives when the treaties were signed. 88 The limitations on the Crown’s powers to affirm exclusive rights embodied in treaties is discussed in Roland Wright, “The Public Right of Fishing, Government Fishing Policy,

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and Indian Fishing Rights in Upper Canada”, Ontario History 86/4 (December 1994), pp. 337362. 89 Section 88, added to the Indian Act in 1951, provided that federal and provincial laws would apply subject to treaty provisions. The impact of this section is discussed in Chapter 9. 90 Malcolm Montgomery, “The Six Nations Indians and the Macdonald Franchise”, Ontario History 57 (1965), p. 13. 91 Morris, Treaties of Canada (cited in note 33), pp. 296-297. 92 In practice, however, Inuit were subject to some federal policies even before 1939. 93 J. Leslie and R. Maguire, ed., The Historical Development of the Indian Act, second edition (Ottawa: Treaties and Historical Research Centre, Indian Affairs and Northern Development, 1978), p. 115. 94 William Duncan to David Laird, May 1875, quoted in Fisher, Contact and Conflict (cited in note 2), p. 207. 95 Stan Cuthand, “The Native Peoples of the Prairie Provinces in the 1920s and 1930s”, in One Century Later: Western Canadian Reserve Indians Since Treaty 7, ed., Ian A.L. Getty and Donald B. Smith (Vancouver: University of British Columbia Press, 1978), p. 39. 96 Statutes of Canada 1890, chapter 29, section 134.2 (53 Victoria). 97 Special Joint Committee of the Senate and the House of Commons appointed to continue and complete the examination and consideration of the Indian Act, Minutes of Proceedings and Evidence, No. 30, 5 June 1947, p. 1593. 98 Statutes of Canada 1898, chapter 34, section 7 (61 Victoria). 99 Canada, Sessional Papers, volume 10, number 12 (1890), p. xi. 100 Special Joint Committee (cited in note 97), p. 1647. 101Cuthand, “The Native People of the Prairie Provinces” (cited in note 95), p. 31. 102 Mark S. Dockstator, “Towards an Understanding of Aboriginal Self-Government: A Proposed Theoretical Model an Illustrative Factual Analysis”, doctor of jurisprudence dissertation, Osgoode Hall Law School, York University, 1993, chapters 5 and 6. 103 Dockstator, “Towards an Understanding of Aboriginal Self-Government”, pp. 102, 104, 105.

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104 Revised Statutes of Canada 1927, chapter 98, section 141.

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Volume 1 - Looking Forward Looking Back PART ONE The Relationship in Historical Perspective

7

Stage Four: Negotiation and Renewal THE RELEASE OF THE WHITE PAPER on federal Indian policy in 1969 generated a storm of protest from Aboriginal people, who strongly denounced its main terms and assumptions. It left in its wake a legacy of bitterness at the betrayal of the consultation process and suspicion that its proposals would gradually be implemented. However, it also served to strengthen the resolve of Aboriginal organizations to work together for a changed relationship. This marked the beginning of a new phase in Aboriginal/non-Aboriginal relations.

We have characterized this fourth stage in the relationship between Aboriginal and nonAboriginal people in Canada as a period of negotiation and renewal, and it is this stage that is still under way. By the early 1970s, it was clear even to most people in nonAboriginal society that substantial changes in the relationship were required, and negotiations taking various forms ensued — at road block sites, in legislative offices, across the constitutional bargaining table and in international forums. These discussions gradually brought about a better understanding of the Aboriginal perspective and some movement toward a middle ground. A particularly important development was the adoption of a constitutional provision that recognized and affirmed existing Aboriginal and treaty rights and that included Métis people, Inuit and First Nations within the definition of the Aboriginal peoples of Canada.1 The negotiations were far from smooth, however, and reversals were not uncommon. We begin our discussion of this period with a review of the major political and constitutional milestones of negotiation, ending with the discussions surrounding the Charlottetown Accord. We go on to describe the evolution of thinking in Canadian courts with respect to Aboriginal and treaty rights. We review several major decisions of the Supreme Court of Canada and refer as well to provincial court judgements. While recognizing the shortcomings of relying on the courts to redefine the relationship, the decisions do for the most part provide some support for the recognition of Aboriginal and treaty rights. As such, they provide a stimulus to political negotiations. Finally, the last several decades have also seen much more activity to advance Aboriginal interests at the international level, developments that have had important implications for the Aboriginal/state relationship within Canada. Aboriginal peoples within Canada have formed alliances with similar groups in other countries. They have also played an important role in persuading international organizations such as the United Nations to have indigenous rights recognized at the international level and to apply those standards 186

to specific instances of injustice within Canada. As an example of these developments, we profile the emergence of internationalism among Inuit, with particular attention to the Inuit Circumpolar Conference, an organization that brings Inuit from the world's Arctic regions together as a people on issues of common concern, despite the boundaries imposed by nation-states.

1. Legislative and Constitutional Attempts: From the White Paper to Charlottetown, 1969-1992 The years 1969 to 1992 saw tumultuous relations between Aboriginal people and successive Canadian governments. It began with the federal government's 1969 white paper on Indian policy, which sought to terminate the federal government's special relationship with Aboriginal peoples. It included the standoff at Kanesatake (Oka) in the summer of 1990, captured in a photograph of a battle-ready Canadian soldier face-to-face with an armed, masked Mohawk warrior. And it ended with the defeat of the Charlottetown Accord in a Canada-wide referendum. Two broad themes emerged from this story: the inability of governments, through constitutional reform, land claims policy and government programming, to resolve long-standing disputes with Aboriginal peoples; and the gathering strength of Aboriginal peoples and their political organizations to respond to this failure. The white paper came shortly after Pierre Trudeau's first election victory as leader of the federal Liberal party, and his successful 1968 campaign for a "just society". The policy proposals in the white paper sought to end the collective rights of Aboriginal people in favour of individual rights. Included were plans to eliminate the protection for reserve lands, to terminate the legal status of Indian peoples, and to have services delivered to them by provincial governments. The white paper became a rallying cry for Aboriginal people, and their response was fast and strong. Harold Cardinal, then president of the Indian Association of Alberta, responded with what became known as the 'red paper', in which he described how Indian peoples, as peoples with distinct cultures, wished to contribute to Canadian society while at the same time exercising political and economic power at the community level. The red power movement gave birth to the first cross-Canada political organization of Indian people, the National Indian Brotherhood. The federal government backed down from the white paper, although its underlying philosophy seemed to animate federal policy for years to come. [A] separate road cannot lead to full participation, to equality in practice as well as theory. ...[T]he Government has outlined a number of measures and a policy which it is convinced will offer another road for Indians, a road that would lead gradually away from different status to full social, economic and political participation in Canadian life. This is the choice.

Indian people must be persuaded, must persuade themselves, that this path will lead them to a fuller and richer life. Statement of the Government of Canada on Indian Policy, 1969

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The federal government established an Indian Claims Commission later that year, with Lloyd Barber as commissioner. His mandate, assigned in December 1969, was to review and study grievances concerning Indian claims. His report, tabled in 1977, described the depth and range of issues to be addressed: It is clear that most Indian claims are not simple issues of contractual dispute to be resolved through conventional methods of arbitration and adjudication. They are the most visible part of the much, much more complex question of the relationship between the original inhabitants of this land and the powerful cultures which moved in upon them. That the past relationship has been unsatisfactory both for [Aboriginal people] and for [Canadian society] cannot be in dispute. There are too many well-documented cases where [Canada] failed to live up to obligations [that were] presumably entered [into in] good faith, and which Indians accepted with equal or greater faith. Satisfactory settlement of these obligations can help provide the means for Indians to regain their independence and play their rightful role as a participating partner in the Canadian future. The claims business is no less than the task of redefining and redetermining the place of Indian people within Canadian society. They themselves are adamant that this shall be done, not unilaterally as in the past, but with them as the major partner in the enterprise.2 Although publication of the white paper coincided with constitutional discussions among federal and provincial governments, these were two very separate paths. The main items for constitutional discussion included the division of powers between the federal and provincial governments, regional disparities, institutional reform, official languages, a charter of rights and an amending formula. Aboriginal rights were not on the table. They would remain off the table for the next 10 years. During the 1970s, relations were driven by the growing consciousness of Aboriginal peoples and by key decisions of the courts. Aboriginal people in Canada began to look to what was happening around the world. The United Nations was calling for the decolonization of all territories that were geographically and culturally distinct from the states administering them and in a subordinate position politically, socially or economically. New states were being carved out of former European empires. The doctrine of decolonization was not applied to North and South America, however, since, it was argued, countries like the United States and Canada did not control and exploit Aboriginal peoples. This did not prevent Aboriginal peoples in the Americas from pointing to the 'internal colonialism' they suffered. Aboriginal people from Canada were at the forefront of efforts to form an international network of Aboriginal peoples. The Inuit Circumpolar Conference is described later in this chapter. The World Council of Indigenous Peoples, the first international organization of Aboriginal peoples, owes a great debt to the vision of Canadian Aboriginal leaders such as George Manuel. It was George Manuel who secured nongovernmental organization status for the National Indian Brotherhood in 1974 and who went to Guyana that year to attend the preparatory meeting of what was to become the World Council of Indigenous Peoples. The founding meeting was held on Vancouver

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Island in 1975. Section 1 of the charter of the World Council of Indigenous Peoples addresses the purposes of the organization: This organization has been formed in order to ensure unity among the Indigenous Peoples, to facilitate the meaningful exchange of information among the Indigenous Peoples of the world, and to strengthen the organizations of the Indigenous Peoples in the various countries. The organization is dedicated to: abolishing the possibility of the use of physical and cultural genocide and ethnocide; combating racism; ensuring political, economic and social justice to Indigenous Peoples; to establishing and strengthening the concepts of Indigenous and cultural rights based upon the principle of equality among Indigenous Peoples and the peoples of nations who may surround them.3 For the first time, Maoris from New Zealand, Aborigines from Australia, Sami from Scandinavia, Inuit from Greenland, Miskitos from Nicaragua, and First Nations from Canada and the United States could talk to one another and begin building indigenous solidarity. George Manuel was chosen as the first president. His message, and the objective of the World Council, were clear: Organize and unify around a clear set of objectives. Battle against all the forces of assimilation and try to build your nations economically, culturally and politically. Consult the people, politicize the people and never get too far ahead of them, because when all is said and done, they are your masters.4 Manuel spoke for many when he concluded that Aboriginal people in North America live in a "fourth world" — sharing the experience of colonization with the third world, but different as Aboriginal peoples, a minority in their own homeland, governed by the laws and institutions of settler governments.5 The World Council on Indigenous Peoples held conferences in Sweden in 1977 and Australia in 1981, in both instances with financial support from the host country. The conference in Australia focused on a draft treaty on indigenous rights. During this period, the government of Norway started including Indigenous peoples as part of its foreign policy and began making annual grants to the World Council. Norway, Sweden and the Netherlands became strong supporters of international indigenous rights. With their support, and the leadership of the World Council of Indigenous Peoples, the United Nations was persuaded to establish a Working Group on Indigenous Populations in 1982. That group began working on a declaration on indigenous rights in 1985, and in 1993 it produced an historic document in the field of human rights — the Draft Declaration on the Rights of Indigenous Peoples. This draft declaration is now before the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, as indigenous rights are becoming fully articulated, with the participation of Aboriginal peoples, in international law. Aboriginal people in Canada should share some pride in this accomplishment.6 In Canada, Aboriginal peoples were becoming more aware of their legal rights during this period. The landmark Supreme Court decision in the Calder case in 1973 led the federal

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government to establish its first land claims policy, directed to settling the comprehensive claims of Aboriginal groups that retained the right to traditional use and occupancy of their lands. The policy was only moderately successful, in part because of the federal government's policy of extinguishment, which insisted that Aboriginal people agree to have their land and resource rights in the claims area extinguished in exchange for a land claims settlement, and in part because of the federal policy of separating negotiations on land from those on self-government, a topic that emerged high on the list of priorities for Aboriginal people by the late 1970s. Only two claims were negotiated successfully during the decade — the James Bay and Northern Quebec Agreement (1975) and the Northeastern Quebec Agreement (1978). Support for Aboriginal peoples and their struggles grew, as organizations such as the Canadian Association for the Support of Native People and Project North (composed of Christian churches) sprang up to press governments to address Aboriginal rights to land and self-determination. This led to significant federal government funding for Aboriginal peoples' organizations. Resource megaprojects, such as the James Bay hydro project, the Mackenzie valley pipeline and the northern Manitoba hydro project, forced confrontations between Aboriginal people on one side and governments and resource companies on the other. It was at this point that Aboriginal peoples and the constitution began to be linked. Aboriginal people had tried many avenues to effect change, with little result. They turned now to a new approach — constitutional reform. Their opportunity came in 1978, in the aftermath of the election of the first Parti québécois government in Quebec, when the federal government introduced its proposals for constitutional reform, entitled "A Time for Action", and the companion draft legislation, Bill C-60. They contained, for the first time, a draft charter of rights and freedoms, including a provision shielding certain Aboriginal rights from the general application of the individual rights clauses in the charter. Although discussions were held with Aboriginal peoples' organizations during the Trudeau government, it was during the short-lived Progressive Conservative government of Joe Clark that Aboriginal leaders first met formally with federal and provincial ministers to discuss issues to be placed on the first ministers' constitutional agenda, including a commitment to invite national Aboriginal leaders to attend those negotiating sessions on topics that directly affected their people. With the victory of the federalist forces in the Quebec referendum on sovereigntyassociation in 1980, and the failure of a first ministers conference on the constitution later that year, the federal government decided to act unilaterally to patriate and amend the constitution. The federal proposal, revised in January 1981 following discussions with Aboriginal leaders, contained three sections that were to address the concerns of Aboriginal peoples. These provisions, variants of which were ultimately proclaimed in the Constitution Act, 1982, are described in detail in the next few pages. Eight provincial governments opposed the federal government's initiative, as did many Aboriginal people. National Aboriginal organizations, especially the National Indian Brotherhood (now the Assembly of First Nations) lobbied the federal government separately at first, but then began to co-ordinate their efforts.

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Many chiefs of First Nations travelled to England to oppose patriation, concerned that it might damage their special relationship with the Crown (represented by the Queen), and several launched lawsuits in the British courts. Treaty nations, particularly those in western Canada, wanted the British and Canadian governments to recognize their treaty obligations before patriation took place. In his judgement on the suits launched by Aboriginal peoples' organizations, Lord Denning of the English Court of Appeal stated that Canada had an obligation to fulfil the treaties made in the name of the Crown of Great Britain. The provinces that opposed the federal government's initiative launched a number of court actions in Canada, and the 1981 Supreme Court decision on a constitutional reference resulted in one more first ministers conference being convened. That conference, held in November 1981, produced a draft constitutional amendment supported by the federal government and nine provinces; Quebec withheld its consent. The accord had a glaring omission — Aboriginal rights had disappeared.7 As the white paper had done more than a decade earlier, the draft constitutional amendment of 1981 galvanized Aboriginal people, who joined together from coast-to-coast in an effort to have Aboriginal rights reinserted into the package. This time, they had an additional ally — Canadian women who were concerned that the sexual equality rights of the charter might be impaired by the legislative override provision, better known as the 'notwithstanding' clause. The two communities of interest agreed to support each other, and after a massive and intensive lobbying effort, they won their battles. The notwithstanding clause would not apply to section 28, the sexual equality provision of the charter, and Aboriginal and treaty rights were reinstated, albeit with the word 'existing' placed before them. This was a reflection of both the lack of knowledge of Aboriginal matters among federal and provincial governments and the legal uncertainty in the field at that time. The Constitution Act, 1982 was proclaimed on 17 April 1982. Section 25 guaranteed that the Canadian Charter of Rights and Freedoms would not ...abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including: (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement. Section 35 stated that (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

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Section 37 provided for a single constitutional conference (which was held in 1983) to identify and define those Aboriginal rights and for the participation of Aboriginal peoples' leaders and territorial government delegates. That conference was televised live, and the hopes and dreams of Aboriginal peoples were brought to viewers across the country. Aboriginal cultures were given a place of respect through the use of Aboriginal traditions — opening prayers, drumming, the passing of the great pipe of peace. For the first time since Confederation, Aboriginal leaders sat at the table as equals with first ministers. The conference was noteworthy in another regard. It resulted in the first — and thus far the only — amendment to the constitution under the general amending formula. The 1983 Proclamation Amending the Constitution of Canada included the following provisions: 1. Paragraph 25(b) of the Constitution Act, 1982 is repealed and the following substituted therefore: "(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired." 2. Section 35 of the Constitution Act, 1982 is amended by adding thereto the following subsections: "(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired." "(4) Notwithstanding any other provision of the Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons." In addition, the proclamation made a commitment that a formal first ministers conference would be held, with the participation of Aboriginal peoples, before any constitutional amendments that directly affected Aboriginal people. A new section 37 resulted in three more first ministers conferences on Aboriginal constitutional matters, in 1984, 1985 and 1987. The constitutional process helped bring together Aboriginal people from across Canada. National Aboriginal leaders met to discuss the strategy of constitutional negotiations in a series of Aboriginal summits, a remarkable feat given the diverse nature of and former divisions among Aboriginal people in Canada. The focus of these three conferences was Aboriginal self-government, a direction that was also advocated in the 1983 report of the House of Commons Special Committee on Indian Self-Government, known as the Penner report.8 Over time, all Aboriginal parties to the negotiations came to support the position that the right of self-government was inherent, rather than delegated or constitutionally created.

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During this period, the legal position of Aboriginal peoples in the Canadian state was becoming clearer. The Supreme Court decision in the Guerin case had the effect of placing the onus on the federal and provincial governments to demonstrate that the legal rights of Aboriginal people had been extinguished with their consent. The decision in the Simon case affirmed that treaties predating Confederation, such as those between eastern Aboriginal nations and the French and British Crowns, were protected by the present constitution. The three constitutional conferences held between 1984 and 1987 produced no amendments. The lack of consensus turned on the question of whether the right of Aboriginal self-government flowed from inherent and unextinguished Aboriginal sovereignty, and from treaty and Aboriginal rights, or whether it was to be delegated from federal and provincial governments. Had Aboriginal peoples been willing to accept delegated authority for their governments, a constitutional amendment would have been theirs. The close of the 1987 conference was one of high drama, as national Aboriginal leaders summarized their sense of disappointment. Their declarations, excerpted in the accompanying box, spoke eloquently of missed opportunities and fears for the future. Their predictions of a stormy future relationship between Aboriginal peoples and Canadian governments was realized, unfortunately, in the armed confrontation at Kanesatake three years later. In 1986, the federal and provincial governments began working on what was to become the Quebec round of constitutional discussions, in an effort to complete the work left undone at the 1981 conference when Quebec did not agree (and still has not agreed) to patriation and the Constitution Act, 1982. Less than a month after the failure of the first ministers conferences on Aboriginal constitutional matters, the Meech Lake Accord was signed. Because governments considered this the Quebec round, the accord was silent on Aboriginal and treaty rights. Most Aboriginal people reacted in disbelief. How could first ministers accept the vague notion of Quebec as a distinct society while suggesting that the concept of inherent Aboriginal self-government was too unclear? Aboriginal groups did not oppose recognition of Quebec as a distinct society, so long as Aboriginal peoples were similarly acknowledged through recognition of the inherent right of Aboriginal selfgovernment. The reaction of Louis ('Smokey') Bruyere, president of the Native Council of Canada (now the Congress of Aboriginal Peoples), was typical: Aboriginal peoples' view on the Accord can be summarized in four words: It abandons aboriginal peoples. It does this by being silent about the uniqueness and distinctiveness of aboriginal peoples.9 Aboriginal people had substantive concerns about the Meech Lake Accord, including provisions that would have made it more difficult for the territories to become provinces and that ignored the role of territorial governments in recommending appointments to the Supreme Court and the Senate. The accord was also silent on the role of Aboriginal peoples in future constitutional conferences on the constitution.10 The constitutional

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amending formula gave Parliament and the provincial legislatures up to three years to pass the Meech Lake constitutional resolution. As the clock ticked, it became more obvious that the Meech Lake agreement was in trouble. The Meech Lake Accord served to galvanize Aboriginal people, to strengthen their resolve as the white paper and patriation debates had done earlier. Aboriginal people were fighting court battles and engaging in acts of civil disobedience. Canadians came to know the Gitksan and Wet'suwet'en, who were fighting in court to affirm ownership and jurisdiction over their traditional lands; the Haida, who were standing in the path of logging machines about to clear-cut their ancient forests; the Lubicon, who were blocking access to their lands by resource developers; and the Innu, who invaded a NATO air base to protest low-level fighter jet training over their lands and its impact on their hunting economy.11 By 1990, many non-Aboriginal people also opposed the agreement. Owing to changes in government, the legislatures of New Brunswick and Manitoba had not yet approved the constitutional resolution, and the government of Newfoundland and Labrador had rescinded its original approval. There was enormous pressure on us. I am sure most of us here on this side of the table, and undoubtedly on the other side of the table, had a couple of sleepless nights to some extent, wondering whether or not we should go with this.... But on this side, and me personally, the question I was debating was: If we agree to an amendment, what does it do to the rights we now have and how does it enhance our situation. What happens to our treaties? What happens to our bilateral relationship? What happens to what our forefathers have always told us they did, that they did not surrender. They did not surrender their sovereignty. Georges Erasmus Assembly of First Nations

We came to set a foundation for the liberation and justice for our people. That is the purpose of coming to this conference.... We are not disappointed in the stand that we took — the right to land, the right to self-government, and the right to selfdetermination. Those causes are right in any society. By leaving here today without an agreement, we have signed a blank cheque for those who want to oppress us and hold the racism against us as they have in the past. Jim Sinclair Métis National Council

In early June of 1990 the federal government convened a constitutional conference in a last-ditch effort to save the Meech Lake agreement. After a marathon 10-day meeting behind closed doors, an agreement was reached. Among other items, it included a provision for the resumption of constitutional conferences on Aboriginal rights. The remaining three provinces agreed to introduce the resolution in their respective legislatures.

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The people of the future, when they look at what we have turned down here today, will say we were right rather than wrong.

We are not going away. The aboriginal people of this country are always going to be here as strong and if not, stronger, than they are now. Louis 'Smokey' Bruyere Native Council of Canada But there are going to be consequences to a continual 'non-success' of these gatherings, and there are grave consequences possible if we continue to meet and not come up with any resolution of these issues.

We continue to have a hope that this great country, which we embrace as our own, will have the sense and the decency — not that I doubt its decency — to someday, in my generation, recognize our rights, and complete the circle of Confederation, because if it is not going to be done in my generation, I have my son standing behind me who will take up the fight with your sons and your sons' sons. Zebedee Nungak Inuit Committee on National Issues Source: First Ministers Conference on Aboriginal Constitutional Matters, 26-27 March 1987, unverified and unofficial verbatim transcript (Ottawa: Canadian Intergovernmental Conference Document 800-23/004), pp. 220-241.

Progress was slow, and Aboriginal leaders, through MLA Elijah Harper of Manitoba, were opposing the package. In a final effort to win their support, the prime minister wrote to Phil Fontaine of the Assembly of Manitoba Chiefs, outlining a six-point program for addressing Aboriginal concerns. 1. a Federal-Provincial process to set the agenda for the First Ministers Conference on Aboriginal Matters; and the acceleration of the holding of the first Conference; 2. a commitment by the Government of Canada to full constitutional recognition of the Aboriginal peoples as a fundamental characteristic of Canada; 3. the participation of representatives of the Aboriginal peoples of Canada at any future first ministers conference held to discuss the "recognition clause"; 4. an invitation to participate in all first ministers conferences where matters being discussed directly affect Aboriginal peoples; 5. the joint definition of treaty rights; 6. the establishment of a Royal Commission on Native Affairs.12 It would turn out to be too little, too late. Aboriginal people were determined to stop a process they saw as unfair and that ignored their fundamental rights. Coincidentally, during the conference, the Supreme Court delivered its decision on the Sparrow case, confirming that the regulation of an Aboriginal right to fish did not result

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in its extinguishment. Moreover, the burden of justifying legislation that has some negative effect on Aboriginal rights rested with the federal and provincial governments. What appeared to be a sure thing in 1987 was defeated in part because of opposition from Aboriginal peoples. In a decade, Aboriginal leaders and organizations had become powerful players in the rough and tumble of constitutional politics and negotiations. The Death of Meech An all-party agreement to pass the accord in the Manitoba legislature included the introduction of a motion of ratification in the legislature, ten days of public hearings, a debate in the legislature, and a final vote. All of this was to be accomplished in less than two weeks, by 23 June 1990, when the three-year limit on the Meech Lake Accord expired. On June 12, Premier Filmon asked for unanimous consent from the legislature to introduce the motion without the customary two days' notice. With the encouragement of Aboriginal leaders in Manitoba, and to the surprise of the assembly, the Oji-Cree MLA for Rupertsland, Elijah Harper, denied his consent. At first, this was thought to be a symbolic gesture, token opposition. Harper again denied consent on June 13 and 14. Support for Harper's stand, a lone Oji-Cree MLA holding an eagle feather in the Manitoba legislature, spread across the country. The rules of the Manitoba legislature enabled Harper to delay the motion for six legislative working days. Finally, on June 20, Premier Filmon was able to introduce the motion. By this time, Elijah Harper had become a hero for Canadians who opposed the Meech Lake Accord. The public hearings had yet to be held, but debate on the motion began. It was too late to save the accord. The Manitoba legislature adjourned without bringing the motion to a vote. Nor was a vote taken in the Newfoundland legislature. Meech was dead. The defeat of the Meech Lake Accord was received very poorly in Quebec. Meech was meant to heal the wounds created by the patriation and amendment of the constitution in 1982 over Quebec's objection. For years, Québécois were seeking recognition of their historical rights — the reality of deux nations — in the constitution. Aboriginal peoples were unable to have their nation-to-nation relationship recognized, and Quebec was unable to have its distinctiveness as a society recognized. The fate of these two Canadian dilemmas had become inexorably intertwined. An attempt to address both would wait for the Canada round, still two years away. When the Mohawk people of Kanesatake set up road blocks in the spring, no one thought much about it. It was just one more in a long line of similar actions that had ended peacefully once a point had been made or serious negotiations had begun on the issues at hand. The situation changed when the stand-off began, on 11 July 1990.13 At issue was legal title to 400 square kilometres of land that formed the original seigneury of the Lake of Two Mountains — a land dispute that has been outstanding since the 1700s. The land was granted to the Seminary of St. Sulpice in 1717 and 196

enlarged through a second grant in 1735. The second grant was to provide a greater land base for the original inhabitants. In both cases, the land turned over to the Sulpicians was to be used for the benefit of the Indian residents, on condition that title to the land would revert to the Crown if they vacated the mission. The Mohawk people always considered these lands to be theirs — before, during and after these grants. When the Mohawk were considering the proposed move to Kanesatake from Montreal in 1714, Chief Aghneetha said, Again our Priest, in conjunction with the clergy of the Seminary of Montreal, told us we should remove once more with our families, for it was no longer proper that any Indians should live on this Island [of Montreal]. If we would consent to go and settle at the Lake of Two Mountains we should have a large tract of land for which we should have a Deed from the King of France as our property, to be vested in us and our heirs forever, and that we should not be molested again in our habitations.14 In February 1721, when the first Mohawk families moved to their new home at Kanesatake, they did so in the belief that the land belonged to them as originally promised. In remarking upon the Two Dog wampum belt made for the occasion, Chief Aghneetha said, Although it was very inconvenient to us to be quitting our homes and small clearing, yet the desire of having a fixed property of our own induced us to comply, and we accordingly set out, and took possession of the land, and as was the custom of our forefathers we immediately set about making a [wampum] Belt...by which our children would see that the lands were to be theirs forever, and as was customary with our ancestors we placed the figure of a dog at each end of the Belt to guard our Property and to give notice when an enemy approached.15 The Mohawk people were not involved in any way in the negotiations that took place among the Sulpicians, representatives of New France, and the regent for the seven-yearold king of France, Louis XV, and it appears that they had no knowledge that the concession would be granted forever to the Seminary, on condition that as soon as the Indian residents left the land, it would revert to the king. Hence the origin of the present dispute. Title to the former Jesuit seigneury of Sault St. Louis had been awarded to the Mohawk of Kahnawake by the courts in 1762. However, title to the Seminary of St. Sulpice was recognized by the British as belonging to the Sulpicians in 1841, an act that has been challenged by Mohawk people since that time. Over the years the Sulpicians gradually sold off the land, including the pine forest of the Commons — the site of the stand-off at Kanesatake. Finally, in 1945, the federal government moved to purchase from the Sulpicians the lands still occupied by the Mohawk, which amounted to about one per cent of the original Two Mountains seigneury.

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Part of the pine forest of the Commons was acquired by the municipality of Oka in 1959 to construct a nine-hole golf course, again ignoring Mohawk claims. In 1990, plans were afoot to clear more of the pines in order to expand the Oka Golf Club to 18 holes. During all this time, the Mohawk of Kanesatake had resisted this invasion and had sought to resolve the matter — in petitions to Lord Elgin in 1848 and 1851, in petitions to the governor general of Canada in 1868 and 1870, through a visit to see the king of England in 1909, in a claim brought before the Privy Council in London in 1912, in their comprehensive land claim of 1975, and in their specific land claim of 1977. The federal government has taken the 1912 decision of the judicial committee of the privy council as the final word on the matter. The court held that the Mohawk people had a right to occupy and use the land until the Sulpicians exercised their unfettered right to sell it. The Kanesatake land dispute had been festering for more than 200 years by this time. The Oka summer of 1990 — which began when the Oka municipal council called in the Sûreté du Québec (the provincial police force) and escalated to an armed confrontation between the Canadian army and Mohawk warriors — was foreshadowed by violent confrontations as early as 1877. All avenues for resolving the land question had been closed. After simmering for so long, the situation exploded. The sight of Canada's army pitted against its own citizens received attention around the world. Canada's reputation on the international stage, one of promoting human rights and the well-being of Aboriginal peoples, was badly tarnished. The land dispute has yet to be resolved, although negotiations are continuing, and the federal government has purchased small parcels of land to be returned to the Mohawk people. Shortly after the demise of the Meech Lake Accord and the Oka crisis, the government of Quebec created the Bélanger-Campeau commission on Quebec's constitutional future,16 and the federal government established the Spicer commission on national unity. Among other things, the Spicer commission found that Canadians as a whole want to come to terms with the aspirations of Aboriginal peoples. There was broad consensus and support for Aboriginal self-government and land claims and acknowledgement of the contributions of Aboriginal peoples to Canada. As the report of the Spicer commission stated forcefully, There is an anger, a rage, building in aboriginal communities that will not tolerate much longer the historic paternalism, the bureaucratic evasion and the widespread lack of respect for their concerns. Failure to deal promptly with the needs and aspirations of aboriginal peoples will breed strife that could polarize opinion and make solutions more difficult to achieve. ... We join with the great majority of Canadians to demand prompt, fair settlement of the territorial and treaty claims of First Nations people, to secure their linguistic, cultural and spiritual needs in harmony with their environment.

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We join with the Canadian people in their support for native self-government and believe that First Nations people should be actively involved in the definition and implementation of this concept.17 In response to such events as Kanesatake, the failure of the Meech Lake and section 37 processes, the Spicer commission, and the government of Canada's failure to resolve the growing rift in relations between Aboriginal peoples and the Canadian state, the federal government created this Royal Commission on 26 August 1991. With a wide mandate and a mix of Aboriginal and non-Aboriginal commissioners, it was charged with finding ways to rebuild the relationship between Aboriginal and non-Aboriginal people in Canada. Four years of consultation, study and deliberation would be required. Constitutional discussions also began anew that autumn, this time with the full participation of Aboriginal peoples. A joint parliamentary committee (Beaudoin-Dobbie) was established to review the federal government's proposals and published in a booklet entitled Shaping Canada's Future Together. In addition to the public hearings held by this committee, a series of five public forums was held to discuss the federal government's proposals. Also, a sixth forum on Aboriginal issues, chaired by Joe Ghiz, former premier of Prince Edward Island, was added at the insistence of Aboriginal people. Also, most provincial and territorial governments held public hearings. Funds were provided for national Aboriginal organizations to consult their people. The criticism of lack of public consultation that damaged the Meech Lake process would not apply to what was called the Canada round of constitutional debate — a round meant to address the concerns of all governments and Aboriginal peoples. The constitutional conferences of 1992, with the full participation of national Aboriginal leaders, resulted in the Charlottetown Accord. The accord included many provisions related to Aboriginal people, but the most important was one that recognized the inherent right of Aboriginal self-government. All governments — federal, provincial and territorial — agreed to include this right in the constitution, an idea some had rejected just five years earlier.18 The Charlottetown Accord was put before the people of Canada in a national referendum on 26 October 1992 and defeated. Although this doomed the constitutional amendments relating to Aboriginal peoples, the fact that the federal, provincial and territorial governments accepted that the right of Aboriginal selfgovernment is inherent — and not delegated from other governments or created by the constitution — is a recognition that cannot be readily or easily withdrawn. There may be an opportunity to return to this matter in 1997, when a first ministers constitutional conference must be convened to review the procedures for amending the Constitution of Canada.19 It would seem highly appropriate, given the precedent of recent constitutional reform efforts, that representatives of Aboriginal peoples would be invited to this conference. It would also provide an opportunity explicitly to affirm an inherent right of Aboriginal self-government in the constitution. Within a span of 25 years, Aboriginal peoples and their rights have emerged from the shadows, to the sidelines, to occupy centre stage. While government policies, attempts at

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legislative reform, and efforts at constitutional change have failed, Aboriginal people have gathered strength, developed national and international political networks, and forced their way into the debate on the future of our country. It is hard to imagine that Aboriginal proposals for the future of Canada, including constitutional reform, can be ignored when discussions about the basic values of our country resume.

2. The Role of the Courts In the period between the onset of the civilizing and assimilation policies, described in earlier chapters, and the present era, we have seen how Aboriginal people were treated as wards of the Canadian state and were subjected to various oppressive, unfair laws and policies. The clear goal of these policies and practices was to eradicate Aboriginal peoples as distinct peoples within Canada. Although they did not cease to assert their distinctiveness in the face of Canadian Aboriginal policy during this period, Aboriginal peoples had little incentive or opportunity to go to court to vindicate their Aboriginal and treaty rights. There were many reasons for this, including the fact that some Aboriginal peoples — holding steadfastly to their original nation status — often refused to admit that non-Aboriginal courts had any jurisdiction over them. In other cases, Aboriginal peoples simply had no confidence that Canadian courts would be willing to recognize their rights or to enforce them against the federal or provincial governments. During this earlier period of Canadian history, it will be recalled, the doctrine of parliamentary supremacy was accepted by legislators and judges without question. This was also the period when Canadian courts were in the grip of a positivist philosophy of the law, as a result of which their focus was less on whether legislative measures were 'just' than on whether they were 'legal' in the narrower sense.20 Moreover, unlike today, there was no bill of rights or charter of rights and freedoms against which to assess federal or provincial legislation. Thus, measures such as the oppressive provisions in the Indian Act or the manner in which the Métis land grants were administered under the Manitoba Act would have been difficult for Aboriginal people or others to attack. Even where Aboriginal people might have wanted to go to court, many obstacles were put in their way. For example, after 1880 the Indian Act required federal government approval for Indian people to have access to their own band funds. This made it difficult for bands to organize, since they would require the approval of the Indian agent to get access to sufficient funds to travel and meet among themselves. There is considerable evidence of the extent to which Indian affairs officials used their control over band funds deliberately to impede Indian people from meeting for these purposes.21 In addition, as described later in Chapter 9, between 1927 and 1951 it was actually an offence under the Indian Act to solicit funds to advance Indian claims of any kind without official permission. Moreover, it was hazardous in other ways to attempt to organize or to bring legal proceedings against the federal government. This was certainly the experience of F.O. Loft, who was defamed by the deputy superintendent general of Indian affairs,

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repeatedly investigated by the RCMP at the instigation of Indian affairs officials, and even threatened with enfranchisement because he proposed to bring a legal action to test the constitutionality of provincial game laws in light of treaty hunting, fishing and trapping guarantees.22 With the notable exception of leaders like Loft, most Aboriginal people during the historical period we have characterized as 'displacement' were poor, largely uneducated and unsophisticated in the ways of the non-Aboriginal society around them. They tended to rely on the structures and processes of the Indian affairs department, in the case of Indian people, on the RCMP and missionary societies in the case of Inuit, or on provincial institutions in the case of Métis people. Many Aboriginal people, in addition, still lived in physically remote or northern locations, far from the institutions of mainstream Canadian society. To this physical remoteness must be added the fact that Canadian institutions were, and indeed often remain, culturally and spiritually remote. In light of these factors, the courts did not play a positive role in the struggle of Aboriginal peoples to assert and defend their rights until relatively recently. The vast majority of non-Aboriginal Canadians who have given any thought to the matter would probably acknowledge that Canada's Aboriginal peoples have not been accorded their proper place in the life and constitution of this country. Some might say that this is attributable to deep-seated racism; others might say, more charitably, that it is the result of the paternalistic, colonial attitude we have described, the goal of which was to indoctrinate the original inhabitants of Canada into the ways of non-Aboriginal society and make them over in the image of the newcomers. Whatever the explanation, it seems clear, as a judge of the British Columbia Supreme Court has acknowledged, that we "cannot recount with much pride the treatment accorded to the native people of this country."23 There is yet another reason why the courts have played a relatively limited role until recently in the articulation of a balanced approach to Aboriginal and treaty rights within the Canadian federation. The common law of England — the law administered in Canadian courts in all provinces except Quebec — was wholly unable to comprehend the view that Canada's First Peoples had of the world and of their unique place in it. The inability of Canadian courts to recognize or to reflect Aboriginal concepts, of course, owes a great deal to the difference in culture and perspectives between Aboriginal and non-Aboriginal people (see Chapters 3, 4 and 15). In retrospect, it is clear that English and French legal concepts are not universal; they spring from and reflect the distinctive cultures and traditions of Great Britain and France. Although these concepts have undergone considerable expansion and refinement since they were transplanted to North America,24 the fact remains that for many generations, Canadian judges and government officials were simply unable to accommodate the concepts of Aboriginal or treaty rights in the legal framework with which they were familiar. Even today, the courts have difficulty reconciling Aboriginal concepts with EuroCanadian legal concepts. Thus, as discussed later in this chapter, they have been forced in recent years to describe the legal aspects of the overall relationship between Aboriginal

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peoples and mainstream Canadian society as being sui generis. This Latin term means that the matter in question is in a category of its own and that it is unwise to draw too close analogies with similar matters in other areas of the law. In this way, since the early 1980s courts have tried to be sensitive to the uniqueness of the legal concepts that have emerged as a result of the evolution of the relationship between Aboriginal peoples and non-Aboriginal society without undermining the existing legal framework of the Canadian federation. However, the courts have not always been so sensitive to the uniqueness of the Aboriginal perspective and the need to accommodate it within the Canadian legal framework. For example, the early efforts of Canadian courts and the judicial committee of the privy council in England (to which decisions of the Supreme Court of Canada could be appealed until 195225) to fit the unique relationship of Aboriginal peoples to their land into the common law concept of property resulted in a distortion of the traditional approach of Aboriginal peoples to their lands. Aboriginal people do not use terms in their own languages that connote 'ownership'; they describe themselves rather as 'stewards' of their traditional territories, with a responsibility to the Creator to care for them and every living thing on them. They tend to focus on the respectful use of lands and resources rather than dominion over them. George Manuel has described the spiritual relationship between Aboriginal peoples and the land as follows: Wherever I have travelled in the Aboriginal World, there has been a common attachment to the land. This is not the land that can be speculated, bought, sold, mortgaged, claimed by one state, surrendered or counter-claimed by another.... The land from which our culture springs is like the water and the air, one and indivisible. The land is our Mother Earth. The animals who grow on that land are our spiritual brothers. We are a part of that Creation that the Mother Earth brought forth.... Although there are as wide variations between different Indian cultures as between different European cultures, it seems to me that all of our structures and values have developed out of a spiritual relationship with the land on which we have lived.26 Unfortunately, Canadian courts were unable or unwilling to incorporate the perspective of Aboriginal peoples within existing British and Canadian land law. Thus, they simply adopted the 'discovery doctrine' discussed in earlier chapters, asserting that legal title and ultimate 'ownership' of Aboriginal lands in North America either became vested in the Crown at the moment of discovery by British explorers, or passed from the 'discovering' French king to the British Crown upon France's 1763 cession of its North American possessions to Great Britain. Under the discovery concept the newcomers thus became the 'owners' in terms of their own legal framework. The original Aboriginal inhabitants who had been living on the land from time immemorial were found to have no real property interest in the land at all; rather, they had a mere 'personal' and 'usufructuary' right that constituted a burden on the Crown's otherwise absolute title.

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This was the language used, for example, in the leading early case on Aboriginal title. Thus, in 1888 in St. Catherine's Milling and Lumber Company v. The Queen27 the new dominion of Canada and the province of Ontario brought to the Judicial Committee of the Privy Council their dispute about which of them was the true owner in Canadian law of lands ceded to the Crown by the Ojibwa Nation from the Treaty 3 area in Ontario. Although the Crown in right of Canada28 had taken the surrender from the Ojibwa in 1873, the province contested the right of the dominion government to grant a timber licence to the St. Catharines Milling and Lumber Company. The province argued that the dominion government had no such right because, upon the land surrender by the Ojibwa, the underlying legal title was 'cleared' of the burden of whatever land title the Indian people had and reverted to the ultimate owner — the Crown in right of the Province.29 The Judicial Committee agreed with the province, awarding ownership of the ceded lands to it and agreeing that the Aboriginal interest in those lands had ceased to exist upon surrender. Speaking for the judicial committee, Lord Watson characterized the legal nature of the Aboriginal interest in their own lands as "a personal and usufructuary right, dependent upon the good will of the Sovereign." Moreover, Lord Watson attributed the Indian interest solely to the provisions of the Royal Proclamation of 1763, equating it with a grant from the Crown rather than as flowing from the use and occupation of the lands from time immemorial. The Ojibwa signatories of Treaty 3 were not represented in these proceedings and therefore never had a chance to present to the lower courts or to the Privy Council their views on the nature of their relationship to their own lands. Earlier judicial analysis of the nature of Aboriginal title in the United States had taken a more positive turn, however. Chief Justice Marshall of the Supreme Court of the United States had earlier held, in Johnson v. M'Intosh and Worcester v. State of Georgia, that Aboriginal title existed quite apart from the Royal Proclamation. It was a legal right, based on Indian peoples' first occupation of the land, and did not derive from any Crown grant: They [the Aboriginal inhabitants] were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion...30 Chief Justice Marshall went on to say that, in fact, the discovery doctrine by which European nations claimed Aboriginal lands as their own did not defeat the rights of the Aboriginal peoples already in possession of them, because discovery merely "gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell."31 In the United States, the more liberal approach of the Supreme Court initially gave considerable scope for Aboriginal and treaty rights to evolve in American law. Inevitably, this led to considerable litigation during the nineteenth century and to the many landmark court decisions that sketched out the contours of Indian law in that country relatively early in its history.

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In Canada, however, it was a different story. The judgement in St. Catherine's Milling seemed to close off important avenues for Aboriginal peoples to contest Crown claims to their lands or regulations controlling their traditional hunting, fishing and trapping activities. The lack of legal avenues for action, coupled with the restrictive measures discussed earlier in this chapter, led to a long period during which the courts were seldom called upon to deal with important questions of Aboriginal and treaty rights. Referring to this long period of judicial inactivity, the Supreme Court of Canada summed up this time as one when Aboriginal rights "were virtually ignored": For many years the rights of the Indians to their Aboriginal lands — certainly as legal rights — were virtually ignored. The leading cases defining Indian rights in the early part of the century were directed at claims supported by the Royal Proclamation or other legal instruments, and even these cases were essentially concerned with settling legislative jurisdiction or the rights of commercial enterprises. For fifty years after the publication of Clement's The Law of the Canadian Constitution (3rd ed. 1916), there was a virtual absence of discussion of any kind of Indian rights to land even in academic literature. By the late 1960s, aboriginal claims were not even recognized by the federal government as having any legal status. Thus the Statement of the Government of Canada on Indian Policy (1969), although well meaning, contained the assertion (at p. 11) that "aboriginal claims to land...are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to the Indians as members of the Canadian community". In the same general period, the James Bay development by Quebec Hydro was originally initiated without regard to the rights of the Indians who lived there, even though these were expressly protected by a constitutional instrument...32 The process of developing the modern legal framework for the articulation of Aboriginal rights began in 1965, when the Supreme Court upheld the treaty hunting rights of Indian people on Vancouver Island against provincial hunting regulations in R. v. White and Bob,33 affirming the majority decision of the Court of Appeal. The discussion of Aboriginal rights in the British Columbia Court of Appeal decision is significant, especially the judgement of Mr. Justice Norris.34 For the first time in recent Canadian judicial history, he considered the overall effect of the Royal Proclamation of 1763 on modern Crown/Aboriginal relations. Unlike the decision of the Privy Council in St. Catherine's Milling, Mr. Justice Norris held that the Royal Proclamation was declaratory of Aboriginal rights — it did not create them. Thus, he accepted that the Vancouver Island treaties confirmed Aboriginal rights and did not grant them. The effect of his bold judgement was to reintroduce into judicial discourse the whole question of Aboriginal rights and the modern legal effect of treaties. When the Calder35 case came before the Supreme Court of Canada a few years later, the St. Catherine's Milling decision was still the law in Canada: First Nations had Aboriginal title to their lands solely by virtue of the Royal Proclamation, not on the basis of their use and occupation of their own lands from time immemorial. The Nisg_a'a people of northwestern British Columbia wanted that changed and brought an action for a declaration that their Aboriginal title to their ancient homelands had never been

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extinguished.36 Mr. Justice Hall, speaking for three members of the Supreme Court of Canada, held that the Nisg_a'a had an existing Aboriginal title based on their original use and occupancy. He relied on Chief Justice Marshall's decision in Johnson. Speaking for the other three members of the court, Mr. Justice Judson held that, whatever title the Nisg_a'a may once have had, it had since been extinguished. He did not, however, reject the concept of Aboriginal title based on original use and occupation. Indeed he stated the very opposite: Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a "personal or usufructuary right". What they are asserting in this action is that they had a right to continue to live on their own lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was "dependent on the will of the Sovereign".37 The Calder decision is significant, therefore, for its strong support of the Nisg_a'a proposition that Indian title in British Columbia was occupancy-based, not derived from the Royal Proclamation. Some months later the Quebec Superior Court ordered a halt to the James Bay hydroelectric project on similar grounds, namely, that Cree and Inuit Aboriginal title had not been extinguished by the Crown in right of Quebec.38 The injunction was later lifted by the Quebec Court of Appeal, and the Supreme Court of Canada refused leave to appeal the matter further. By then, however, all sides had determined that a negotiated solution was better than continued litigation. The result was the James Bay and Northern Quebec Agreement of 1975. Although several Canadian courts had an opportunity subsequently to elaborate on the nature and scope of occupancy-based Aboriginal title, few took advantage of the opportunity. In the Baker Lake39 case, however, Mr. Justice Mahoney of the Federal Court of Canada Trial Division held, following Calder, that Inuit of the Baker Lake area of the Northwest Territories had an occupancy-based Aboriginal title to the Baker Lake area and that it was recognized by the common law although subject to being abridged by competent legislation. He set out the elements that must be established as follows: 1. the claimants and their ancestors were members of an organized society; 2. the organized society occupied the territory over which they assert Aboriginal title; 3. the occupation was to the exclusion of other organized societies; and 4. the occupation was an established fact at the time sovereignty was asserted by England. Justice Mahoney found that all these requirements were met by the Inuit of Baker Lake. The only remaining question, therefore, was whether their Aboriginal title had been

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extinguished, either by the transfer of the lands to the Hudson's Bay Company or by the subsequent admission of Rupert's Land into Canada. He found that neither had the effect of extinguishing the Inuit's Aboriginal title, since no clear and plain intention to extinguish Aboriginal rights had been shown on the part of the Crown. The Federal Court judgement was not appealed. This case is important because it indicated clearly that Aboriginal title can co-exist with settlement or development by non-Aboriginal people. In the Guerin case in 1985, the Supreme Court found that the federal government was in a fiduciary relationship with Indian bands and was therefore responsible for the proper management of surrendered reserve lands. The band in question was awarded $10 million in damages as a result of federal mismanagement of lands surrendered for a Vancouver golf course.40 Although analogous to the private law of commercial fiduciaries, the Court characterized the fiduciary relationship between the Crown and Aboriginal people as being sui generis and as having the capacity to evolve as the overall relationship between Aboriginal peoples and Canadian society itself evolved. Importantly, the Court took the opportunity to review the early cases on Aboriginal title, confirming that, by recognizing that the Royal Proclamation was not the sole source of Aboriginal title, the Calder decision had effectively overturned the Privy Council decision in St. Catherine's Milling. The Court held that Indian title is an independent legal right that, although recognized by the Royal Proclamation of 1763, in fact predates it. The Court went on to discuss the nature of Aboriginal title, examining the various cases and the language they had used to describe it. Was Aboriginal title merely a personal and usufructuary right, or was it an actual beneficial interest in the land itself? In short, was it something that could be dealt with by governments at their pleasure, as the St. Catherine's Milling decision had suggested, or was it a real property interest with more serious legal consequences, as some of the later cases had suggested? Mr. Justice Dickson found an element of truth in both characterizations. He rejected the view that Indian title was simply a personal right, stating instead that it too was sui generis, a unique interest in the land that could not be described adequately in terms of English land law. It was personal in the sense that it could not be transferred by Indian people to anyone else. But it was a unique interest in the land because, when surrendered to the Crown, the Crown was not free to do with the land what it liked. Rather, the Crown was under a fiduciary obligation to deal with it for the benefit of the Indians who had surrendered it. The legal community had hardly begun to digest the ramifications of this case when the Supreme Court decided Simon,41 a treaty rights case based on a peace and friendship treaty42 of 1752 between the British Crown and the Mi'kmaq Nation. In an earlier case a Nova Scotia county court had held the same 1752 treaty to be legally meaningless, basing this on a distinction between a "civilized nation" and "uncivilized people or savages".43 As in the earlier decision in White and Bob, however, the Supreme Court upheld the treaty right against provincial hunting regulations. Significantly, the Supreme Court affirmed the principle that treaties were to be interpreted as Indian people themselves would have understood them and that ambiguous terms were to be construed in their

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favour.44 Moreover, the Court also emphasized the inappropriateness of drawing too close an analogy between Indian treaties and treaties in international law, stating that an Indian treaty is "an agreement sui generis which is neither created nor terminated according to the rules of international law."45 Referring to the disparaging way the earlier Nova Scotia county court decision had characterized Indian societies, the Supreme Court also took the occasion to speak directly to the legal community about the judicial attitude toward Aboriginal rights it was fostering: It should be noted that the language used...reflects the biases and prejudices of another era in our history. Such language is no longer acceptable in Canadian law and indeed is inconsistent with a growing sensitivity to native rights in Canada.46 Another important issue dealt with in Simon was the question of who may claim the benefit of treaty rights under Canadian law. Did a treaty beneficiary have to prove lineal descent from a treaty signatory, or could a beneficiary be a successor in interest? This would include, for instance, someone not necessarily related to the original signing party but who through marriage or adoption became a successor to that party's interest. The Court held that, although descent was the basic rule, evidence of descent other than lineal descent from a treaty signatory might be acceptable, for otherwise it would be too difficult to prove: The evidence alone, in my view, is sufficient to prove the appellant's connection to the tribe originally covered by the Treaty. True, this evidence is not conclusive proof that the appellant is a direct descendant of the Micmac Indians covered by the treaty of 1752. It must, however, be sufficient, for otherwise no Micmac Indian would be able to establish descendancy. The Micmacs did not keep written records. Micmac traditions are largely oral in nature. To impose an impossible burden of proof would, in effect, render nugatory any right to hunt that a present-day Shubenacadie Micmac Indian would otherwise be entitled to invoke based on this Treaty.47 In short order the Supreme Court followed up on treaty issues in the 1990 Sioui case.48 At issue was a document that the federal government argued was a mere safe conduct pass issued by British authorities to members of the Wendat (Huron) Nation in 1760. This case goes farther than Simon, expanding the definition of what is considered a treaty in Canadian law. Moreover, it cited the Marshall decision in Worcester v. Georgia to the effect that treaties between European nations and Indian tribes were akin to international agreements, concluding that it was "good policy to maintain relations with them very close to those maintained between sovereign nations" and that "the Indian nations were regarded in their relations with the European nations which occupied North America as independent nations."49 Despite its accent on the international character of certain aspects of Indian treaties, the Court was nonetheless careful not to draw too close an analogy with the international sphere, emphasizing "[t]he sui generis situation in which the Indians were placed" in the context of their relations with the competing European powers.50

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The immediate issue in Sioui was whether the Indian people of the Lorrette reserve were entitled to practise certain ancestral religious rites in Jacques Cartier Park. These rites involved cutting down trees and making fires, contrary to regulations under the Quebec Parks Act. The 1760 British treaty with the Wendat, often referred to as the Murray Treaty, protected the free exercise of their customs and religion by the Wendat, and it was acknowledged that the Wendat were well settled at Lorrette and making regular use of the territory covered by the park long before 1760. The Crown argued, however, that the rights of the Wendat had to be exercised in accordance with the province's legislation and regulations designed to protect the park and other users of it. The Supreme Court of Canada disagreed, finding in the treaty itself an intention by the Crown and the Wendat that Wendat rights to exercise their customs be reconciled with the needs of the settler society, represented by the Crown, to expand. Thus, confronted with the conflicting interests of the Crown and the Wendat today, the Court preferred to balance their interests as follows: Protecting the exercise of the customs in all parts of the territory frequented when it is not incompatible with its occupancy is in my opinion the most reasonable way of reconciling the competing interests.51 The Court found that exercise of the rights of the Wendat was not incompatible with the rights of the Crown. The convictions of the Wendat of Lorrette were accordingly set aside.52 In Sparrow,53 a member of the Musqueam Band in British Columbia was charged under the federal Fisheries Act with fishing with a drift net longer than that permitted by the terms of his band's food fishing licence. He was fishing in a part of the Fraser River where his ancestors had fished from time immemorial. The Supreme Court of Canada affirmed what it had said in Guerin, namely that Indian title is more than a personal and usufructuary right — it is sui generis — and that the federal government has a responsibility to act in a fiduciary capacity with respect to Aboriginal peoples. The Court pointed out that the relationship between the government and Aboriginal peoples is "trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship."54 Accordingly, whenever the federal government is exercising its powers under section 91(24) of the Constitution Act, 1867, these powers have to be read after 1982 together with section 35(1) of the Constitution Act, 1982. The federal power, the Court said, must be reconciled with the federal duty, and the best way to achieve that reconciliation is to require that government justify any regulations that infringe Aboriginal rights.55 It must never be forgotten, the Court reminded Canadians, that "the honour of the Crown is at stake in dealings with aboriginal peoples."56 In the result, the Supreme Court held that the mere fact that federal fisheries legislation and provincial regulations had controlled the fishing rights of the Musqueam people of British Columbia for many years was not in itself sufficient to extinguish their Aboriginal fishing rights under the constitution. Thus, Aboriginal fishing rights continued, subject to

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regulation in accordance with the justification standard set out in the case. This was the first case in which the Supreme Court of Canada had an opportunity to consider the effect of section 35 of the Constitution Act, 1982 on federal and provincial legislative and regulatory powers under the Constitution Act, 1867. So, after a long painful process it seemed to Aboriginal peoples that the Canadian courts had finally recognized Aboriginal title based on long-standing use and occupation, even though they had also affirmed that the Crown had underlying title to Indian lands by virtue of its so-called 'discovery' of North America. Moreover, by reaffirming the importance of treaties and the contemporary legal significance of Aboriginal and treaty rights, cases such as those just discussed also seemed to hold out a real promise that the federal government could no longer infringe their Aboriginal rights at will but had to establish that its laws or regulations were compatible with its fiduciary obligations to Aboriginal peoples and could be justified in the context of the Aboriginal rights at stake. It must have come as a tremendous shock, then, in terms of both the substance of the decision and the strong language used, when Chief Justice McEachern of the Supreme Court of British Columbia rejected outright the claim of the Gitksan and Wet'suwet'en to Aboriginal rights over their traditional lands in northern British Columbia in a 1991 case, Delgamuukw v. British Columbia. The hereditary chiefs had brought an action against the province of British Columbia alleging that from time immemorial they and their ancestors had occupied and possessed approximately 22,000 square miles of northwestern British Columbia. As a result, they claimed unextinguished Aboriginal title to their own territory and the right to govern it by Aboriginal laws. They also claimed damages for the loss of all lands and resources in the area transferred to third parties since the establishment of the colony. An unfortunate aspect of this case was the language used by Chief Justice McEachern to describe Gitksan and Wet'suwet'en life and social organization before contact. The use of terminology reminiscent of the language deplored by the Supreme Court of Canada in the Simon case continues to arouse anger and indignation among Aboriginal people and fuels the distrust of the Canadian justice system often voiced by Aboriginal people across Canada.57 After reviewing a number of authorities, including those discussed in this chapter, Chief Justice McEachern concluded that in St. Catherine's Milling the Judicial Committee of the Privy Council "got it right when it described the aboriginal interest as a personal right rather than a proprietary one".58 He also found that whatever rights the Aboriginal people had before the colonization of British Columbia were extinguished by the act of Parliament passed in 1858 empowering the Queen to appoint a governor of the new colony and make provision for its laws and administration. He held further that in 1871, when the colony was united with Canada, all legislative jurisdiction was divided between Canada and the province, and no room was left for any Aboriginal jurisdiction or sovereignty. The Aboriginal peoples' only surviving right, the Chief Justice concluded, was to use unoccupied Crown land for their traditional pursuits of hunting and fishing for

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sustenance purposes, subject to the general law and until such time as the land was required for a purpose incompatible with the existence of such a right. This was a major set-back for the Gitksan and Wet'suwet'en, and an appeal was launched immediately. The British Columbia Court of Appeal split on the various issues raised at trial, with a majority of three judges generally upholding the trial decision and dismissing the appeal.59 Two judges dissented on a number of grounds and would have allowed the appeal.60 In all, four separate judgements were issued by the Court of Appeal. Although a further appeal was filed with the Supreme Court of Canada, the parties have requested that it be withdrawn pending negotiations to resolve the many outstanding issues raised at trial and on appeal. Those negotiations are continuing. In addition to the courts, Aboriginal people have also looked to the international community for legal and political support. Since the end of the Second World War the community of nations has become increasingly anxious to develop standards of conduct in the field of human rights to which all nations should subscribe. This concern was manifested in an ever-increasing number of conventions, declarations and covenants. There is no doubt that human rights considerations have now become a major concern of the world community legally, morally and politically. Can Canada possibly stand up against a worldwide movement to restore recognition and respect for Indigenous peoples, their distinctive cultures and historical traditions? Chief Solomon Sanderson has said, By our own efforts, over the last decade, we have successfully re-asserted our sovereignty as Indian Nations in our own homelands and have begun to re-establish our international personality in the courts and political assemblies of the world. But there is much work to be done. While we have been trussed up and gagged in Canada for the better part of this century, the international community of nations has been restructured and a body of international law, which is not yet sensitive to our Indian concepts of nationhood, has come into use. In our enforced absence from world forums, nobody spoke for us and nobody contradicted Canada's definition of us as an insignificant and disappearing ethnic minority. In the thirty-five years since the Second World War, Britain and the other European powers dismantled their colonial empires and, with the United States, sought a new world order. The integrity of every nation, however poor or small, would be protected by universal observance of international law based on common respect for fundamental human rights, including the right to self-determination.61 Aboriginal people in Canada are well aware of the importance of international forums for advancing their rights. It was under the International Covenant on Civil and Political Rights, which guarantees among other things the right of all peoples to selfdetermination, that Sandra Lovelace took her case against Canada to the United Nations. A Maliseet woman who had lost her status by marrying a non-Indian in 1970, Lovelace

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was no longer allowed to live on her reserve. She argued that she was thereby prevented from practising her culture and language and that this was a violation of Article 27 of the Covenant, which states that In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. The United Nations Human Rights Committee agreed with Sandra Lovelace that she had been denied her rights under Article 27, because the only place where she could fully exercise these rights was on her reserve.62 While the committee could not, of course, force Canada to change its law, the public condemnation voiced in the decision was a tremendous embarrassment to Canada which had long prided itself on being a champion of international human rights. Canada responded in 1985 with Bill C-31, amendments to the status and membership provisions of the Indian Act discussed in detail later in this volume.63 It is the hope of Indigenous peoples everywhere, including Aboriginal people in Canada, that international pressure will force countries with Aboriginal populations to assure their cultural survival and recognize their right to have their own land and their own systems of government. Can Canadian courts and Canadian governments now, at this late date in our history, change gears and help in achieving this world-wide objective? There is reason for optimism. The courts have come a long way from St. Catherine's Milling to Guerin and Sparrow. Aboriginal and treaty rights are now protected in the constitution, and federal, provincial, and territorial governments have accepted the view that the inherent right of Aboriginal peoples to govern themselves may well be one of those entrenched Aboriginal rights. We now have an unprecedented opportunity to learn from the mistakes of the past and to set out, both as governments and as peoples, in totally new directions. If Canada has a meaningful role to play on the world stage (and we would like to think that it has) then it must first set its domestic house in order and devise, with the full participation of the federal government, the provinces and the Aboriginal peoples, a national policy of reconciliation and regeneration of which we can all be proud.

3. The Inuit Circumpolar Conference: The Emergence of Internationalism As Aboriginal organizations in Canada have become stronger and more numerous in the decades since the Second World War, they have devoted considerable attention to the situation of Indigenous peoples in other parts of the world and to influencing the activities of established international organizations, especially the United Nations and its affiliated organizations and committees. With the establishment of the Inuit Circumpolar Conference, however, a new international organization was formed, one in which Inuit from Canada have played a leading role.

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The Inuit Circumpolar Conference (ICC) is the established international non-governmental organization of the world's Inuit. Its creation and history relate directly to pressures exerted on the circumpolar regions of the world by southern cultures, principally those committed to finding and exploiting the rich resources of Arctic regions. The ICC is known in virtually every household across the circumpolar north, from Alaska, across the great breadth of the Canadian Arctic, encompassing one-third of the country's land mass, in all of Greenland's coastal communities, and throughout the vast Arctic regions of the Russian north. While estimates of the exact number are difficult to establish, it is believed there are approximately 115,000 to 128,000 Inuit living in the circumpolar regions of Canada, Alaska, Greenland and Russia.64 It is a small population that, by most conventional international standards, would be considered insignificant. Nevertheless, Inuit of the world take tremendous pride in the fact that they have been able to survive culturally and spiritually and to prosper in the harsh Arctic climate. In this context, Inuit have always seen themselves as one people. Their legends and stories, both ancient and modern, speak of family and relatives in the far-off places. The establishment of a modern, permanent international organization to reflect their concerns and aspirations as well as protect their environment, culture and basic human rights, was a matter of doing what they had done many times in the past to ensure their survival. It meant adapting to the new forces, circumstances and conditions now facing them, but doing so in a manner consistent with traditions and aspirations that go back thousands of years. Among these new and intrusive forces were some of the most powerful and influential organizations and institutions of modern society: churches, governments, the military and multinational oil and gas companies. Governments have for decades followed policies of resource development, exploitation, assimilation and colonization. In the 1960s and early 1970s, these policies intensified, driven by the interests of the multinational oil companies and the possibility of petroleum wealth that some thought might be comparable in scale to that available in the Middle East. In Alaska, Canada and Greenland at almost the same time, an enormous transformation was taking place. Young Aboriginal leaders began not only questioning but even resisting the change. More than that, they asserted Aboriginal ownership and rights over their lands and were insisting on land claims settlements and recognition of their rights to their land and resources, renewable and non-renewable. They found that although governments wanted to dismiss or even ignore their claims, there was growing support in the wider public for equality and justice for Aboriginal peoples. By November 1973, the Inuit struggle for recognition of their Aboriginal rights was being waged in Canada, Greenland and Alaska. In other regions of Canada and Alaska, First Nations were pressing similar claims. In Norway, Sweden and Finland, the Sami people were also asserting their rights and meeting similar resistance.

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Under these circumstances, it was natural for the Aboriginal peoples to look internationally for a common front, and the first important meeting, the Arctic Peoples Conference, took place in Copenhagen in November 1973. The message emerging from the meeting was clear. Across the circumpolar world, Aboriginal peoples were involved in fighting the policies of governments that had imposed laws and borders without agreement or consultation. The fact that they lived in the most remote northern regions did not mean that they had to remain in isolation. What also began to emerge was recognition by Inuit that they must unite as a people. Over the past one or two centuries, although they had never been conquered, they had been divided by colonizing European empires and nations. The circumpolar linkages of language and culture remained, but with the pressures of large-scale development and the loss of land and identity, their ability to establish their own priorities was becoming increasingly compromised. The founding meeting of the ICC took place in Barrow, Alaska, in the summer of 1977, under the inspirational leadership of the mayor of the North Slope Borough of Alaska, Eben Hobson. The location was significant. The North Slope Borough's 88,000-squaremile region was part of the overall Alaskan Native Claims Agreement (ANCA), negotiated in the face of the oil discovery at Prudhoe Bay and the ensuing trans-Alaska oil pipeline. Hobson saw the enormous political power of the multinational oil companies working in the region. He also knew the poverty and lack of services available to his own people, and he used the compensation money and authority from the land claim settlement to create a strong regional government. Hobson also recognized that the powerful oil companies could try to lower environmental standards on both sides of the U.S./Canada border in the Beaufort Sea and that strong organization was required to counter the threat. The atmosphere at the Barrow meeting was electric. Inuit were gathering from as far away as Greenland and the most remote and isolated regions of Canada. Inuit from the Soviet Union were invited, but the Iron Curtain could not yet be penetrated. Still, there was a sense of celebration reminiscent of the ancient and traditional Inuit gatherings, along with the drama and excitement of history being made as a new future unfolded. Basic decisions arising from the conference included the recognition that continuing cooperation and organization would be required if Inuit were to protect their culture, their way of life and the environment. It was also agreed that an official charter for the ICC should be established, based on principles of equality, friendship and respect. When the ICC reconvened its general assembly in 1980, this time in Greenland, the charter was approved, recognizing Inuit as an Indigenous people with a unique ancestry, culture and homeland. It stated that their lands transcended political boundaries and that the huge resources of these lands and waters were essential to the future development of Inuit. The charter's preamble set the tone and direction for the organization. It called for Inuit involvement at all levels of international policy making. Work started immediately to gain access to the United Nations as a registered non-governmental organization (NGO), a

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goal that was achieved in 1984 when the ICC obtained NGO status with the Economic and Social Council of the United Nations. For the past decade, the ICC has played a major role in the United Nations Working Group on Indigenous Peoples while at the same time making a vital contribution to drafting the United Nations Declaration on the Rights of Indigenous Peoples. Concern about human rights issues also resulted in ICC participation in revisions to the International Labour Organisation's Convention No. 169 on the Rights of Indigenous Peoples and Tribal Populations. In its short history, three priorities have predominated in the work of the ICC. The first of these, emphasized in the charter, is the importance of the environment: "International and national policies and practices should give due consideration to the protection of the arctic and sub arctic environment and to the preservation and evolution of Inuit culture and societies."65 The centrepiece for the principle of environmental stewardship was the Inuit Regional Conservation Strategy, presented by the ICC executive council to the ICC general assembly in Sisimuit, Greenland, in 1989. Building on detailed field work by Inuit across the Arctic, it was both an environmental protection strategy and a sound sustainable development strategy. It made clear the importance of all Arctic wildlife, including marine mammals, in contributing to the subsistence food that Inuit require daily. The creation of this strategy greatly influenced the eight Arctic governments in the establishment of a Circumpolar Arctic Environmental Protection Strategy. The ICC and other international Aboriginal organizations are full participants in this international initiative aimed at protecting the Arctic environment. The ICC also contributed to the United Nations Earth Summit in Rio de Janeiro, Brazil, in June 1992. Along with other Aboriginal peoples, the ICC submission called not only for international agreements and treaties on sustainable development, but also for greater use of the knowledge base and cultural values of the world's Aboriginal peoples in the protection and preservation of the earth's limited resources. From its founding meeting, the ICC's second principal objective has been to achieve greater political control over the daily lives of Inuit. The charter sets out the clear objective "that our right to self-determination must be confirmed, and Inuit participation in policies and activities affecting our homeland assured". Progress across the circumpolar region on this question has been remarkable. Within the ICC fold, Greenland has achieved the greatest measure of self-government. In 1979, Inuit of Greenland achieved home rule within the Danish Democratic Kingdom. Over a phased period, responsibility for government services, departments and institutions (with the exception of justice, defence and foreign affairs) have been transferred to the home rule government, and because of it, a strong confident Inuit society has re-emerged.

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In Alaska, various efforts have been made to establish workable local or regional selfgovernment models, but most have met with difficulties. In 1983, the ICC began an examination of the issue, appointing a former judge of the British Columbia Supreme Court, Thomas Berger, to conduct a review of the implications of the Alaskan Land Claims Settlement. Berger's report, published as a book called Village Journey, made a major contribution to policy development on indigenous self-government issues. In Canada, negotiations since the early 1970s had led to comprehensive land claims agreements being negotiated in Arctic Quebec, the western Arctic, and Nunavut, with the exception of Labrador. The principle of negotiating self-government within the Canadian federation in the regions where land claims agreements have been signed is becoming accepted, although the level of actual progress varies from region to region. Many of the agreements that have been negotiated are based on the principles of self-government contained in the ICC Arctic policy document (discussed below), and all provide for a large measure of power and control over Inuit-owned land and resources. The Nunavut agreement, to take the most recent example, is one of the most comprehensive land agreements signed in Canada and sets aside some 134,390 square miles of land and 580 million dollars in compensation for lands that have been surrendered.66 To Inuit of the region, however, perhaps more important than the land or the money is the provision in the agreement to negotiate and to establish the new territory of Nunavut, which will have its own government to serve a region where Inuit now make up more than 80 per cent of the population. A third important objective in the ICC charter is to promote world peace "in furtherance of our spirit of co-operation with the international community". In this regard, the ICC was confronted repeatedly with the realities of the Cold War and the increasing militarization of the Arctic regions, as exemplified by nuclear accidents resulting from military activity. There are documented cases of sunken nuclear submarines and of airplanes bearing nuclear weapons that have crashed into the ocean, all of which pose environmental threats to the Arctic Ocean and to marine life. The Chernobyl disaster resulted in the severe radioactive contamination of the environment and of the reindeer grazing lands of northern Europe and Russia, where the Sami and Russian Inuit live. One of the major difficulties facing Inuit and the ICC is the impression held by so many, especially governments, that the Arctic is a vast empty land, where military activity and weapons testing can be carried out with minimal risk. To counter this, the ICC has made presentations in various international gatherings and through organizations and conferences, including at the United Nations, depicting Inuit as a peace-loving people caught between superpowers. A resolution passed at every ICC general assembly has called for a nuclear-free Arctic and a lessening of tensions among the world's superpowers. To advance the principles outlined in the ICC charter, the organization has moved ahead in recent years with development of an Arctic policy. The Arctic policy is a comprehensive policy document, the result of extensive research and negotiations among Inuit in the

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member countries. It covers every issue important to the future of Inuit, including the environment, the economy, self-government, and social and cultural concerns. The initial draft was approved at the ICC General Assembly in Sisimuit, Greenland, in 1989. The structure of the ICC as an international organization has also become more clearly established. For example, the general assembly now meets every three years and includes 18 elected delegates from each member country: Canada, the United States (Alaska), Greenland and Russia. The general assemblies are like no other gathering in the circumpolar world, since they are a unique mixture of politics, international diplomacy, family reunion, and cultural and entertainment exposition. In addition to the general assembly, an elders conference — a sort of Arctic senate — is held, bringing the experience, wisdom and understanding of the elders to the issues. On the conference floor, simultaneous interpretation must be available for up to eight Inuktitut dialects. Two further important developments in strengthening and recognizing the work of the ICC took place in the first half of the 1990s. In 1994, the government of Canada appointed an Inuk, Mary Simon, as its first Ambassador for Circumpolar Affairs — a recognition by Canada of the reality and importance of the circumpolar region. In addition, representation from all parts of the region was achieved at the 1992 general assembly. Early meetings of the general assembly had to be held without Soviet delegates in attendance, but places were kept open for them, and negotiations continued for more than a decade to bring them to their rightful place at the table. Progress was made in 1989 in Sisimuit, when the Soviet government permitted the Soviet Inuit (or Yupik) to attend as observers. In 1992, when Inuit gathered in Inuvik, Northwest Territories, the Cold War had ended. Inuit believed they played some small part in this development, and they saw as their reward the fact that there would be a full delegation at the ICC general assembly from Chukotka, the Inuit homeland in the former Soviet Union. When the Inuit arrived from Russia, it was one of the most emotional moments in the history of the ICC. Now, at long last, the circle was complete.

4. Conclusion As these accounts illustrate, this more recent period of negotiation and renewal has been and continues to be an uncertain time, full of change but also reversals and retrenchment. From an Aboriginal perspective, there was sharp disappointment with the 1969 white paper, but then some advantage was discovered in the court decisions. There was exclusion from the constitutional discussions of the late 1960s, '70s and early '80s, but then a hard-won success in having significant amendments passed. There was lack of agreement at high-profile conferences with federal and provincial leaders in the 1980s and again exclusion from the process and substance of the Meech Lake Accord, but then a reversal of these patterns with respect to the Charlottetown Accord. Throughout, there were signs of continuing differences in perspective and objectives. Aboriginal leaders pushed strongly for self-government as an inherent right, arguing that its roots lie in Aboriginal existence before contact. For much of this period, however, the

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federal government was not prepared to move beyond the administrative decentralization of programs and services or the granting of municipal-style governing powers to community-based governments. Much of the constitutional discussion, too, was devoted to the wish of non-Aboriginal governments to see terms such as 'existing Aboriginal and treaty rights' and 'selfgovernment' defined in detailed and written form. From an Aboriginal perspective, however, it was feasible only to establish agreement on a broad set of principles to govern the future relationship at the Canada-wide level. Given the respect accorded diversity and local autonomy in Aboriginal cultures, it is necessarily up to Aboriginal nations in different parts of the country to negotiate more specific arrangements themselves. To give a final example, 'existing Aboriginal and treaty rights', from a non-Aboriginal perspective, may be limited to those already recognized and defined by institutions such as the courts, the only requirement being to enumerate and define them more precisely. From an Aboriginal perspective, the term includes many rights that have not yet been defined or recognized by non-Aboriginal society. There has been some movement, however, especially on the part of non-Aboriginal society, toward greater understanding and recognition of Aboriginal aspirations. It no longer seems so important that Aboriginal societies follow the evolutionary path toward assimilation within non-Aboriginal society. At Charlottetown, there was recognition of Aboriginal participants as political equals at the table. There was also acceptance of the proposal that Aboriginal governments constitute one of three orders of government based on the inherent right of self-government. In short, there was a return to at least some of the basic principles that governed the relationship at the time of early contact. Although the discussions are far from complete, there are even some limited, halting efforts in different parts of the country to move from discussion to implementation. Looking back over the historical record, some would argue that the relationship between Aboriginal and non-Aboriginal people has been entirely negative, from the moment Europeans first set foot on North American soil. We take a different view. Notwithstanding major disruptions, the spread of disease, and conflict in the early centuries of contact, it is our conclusion that a workable relationship was established over the first three centuries of sustained contact. It was a relationship that entailed the mutual recognition of nations and their autonomy to govern their own affairs, as well as an acknowledgement at the level of official policy that Aboriginal nations had rights to the land and that proper procedures would need to be followed to transfer those rights. It was a time when Aboriginal and non-Aboriginal peoples came together as needed to trade, to form alliances, to sign and periodically to renew treaties of peace and friendship, and to intermarry.

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By the late 1700s and early 1800s, we came to a fork in the road. While Aboriginal peoples by and large wanted to continue with the terms of the original relationship, nonAboriginal society and its governments took a different course, for reasons explained in our discussion of the third stage, displacement and assimilation, in Chapter 5. This was a course that involved incursions on Aboriginal lands, lack of respect for Aboriginal autonomy, and commitment to the idea of European superiority and the need to assimilate Aboriginal peoples to those norms, through coercive measures if necessary. It was a period of false assumptions and abuses of political power carried out over two centuries into the present day — a period that cannot be forgotten by Aboriginal peoples but also one that cannot be allowed to continue or to be repeated. Indeed, the legacy of this time is substantial even in the present day, in the form of legislation, policies and attitudes and in the form of damaged lives. The Commission believes it is vital that Canadians understand what happened and accept responsibility for the policies carried out in their names and at their behest over the past two centuries. To this end, the next several chapters explore in greater detail four policy directions based on false assumptions leading to abuse of power: the various Indian Acts, residential schools, community relocations, and the treatment of Aboriginal veterans. This historical legacy also inevitably takes up a substantial part of the agenda for change that we map out in subsequent volumes of our report. It is an agenda that addresses the need for a change in assumptions, principles and policy directions, which are rooted in a dynamic of colonialism that has been profoundly wrong and harmful. We have before us an agenda of decolonizing the relationship between Aboriginal and non-Aboriginal people in Canada — an agenda that the experience in other societies demonstrates is not an easy road to follow. This historical overview has helped to clarify what needs to be changed and what not to do in the future. It has also introduced themes that will be woven through much of our analysis in later chapters and volumes: that there are profound differences in culture, world view and communication styles between Aboriginal and non-Aboriginal people; that as colonial society and governments gained ascendancy in Canada the opportunities for self-expression and authentic participation by Aboriginal people diminished; and that, to most Canadians, displacement of Aboriginal people seemed inevitable and assimilation appeared to offer the only reasonable basis of relationship. In the past two decades Aboriginal and non-Aboriginal people in Canada have embarked on another path, albeit with faltering steps. Negotiation and renewal to establish a more just relationship have begun. But if the process is to gather momentum and be sustained, the misconceptions of the past, particularly the distorted stereotypes of Aboriginal people and the histories of Aboriginal peoples, must give way to more authentic accounts of their origins and identities. Their perspectives on their encounters with settler society must have a place alongside colonial records. In particular, the legitimacy and authority of the oral traditions of Aboriginal people to shed light on the past and mark the way to a better future must be accorded due respect.67

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Achieving a balance between Aboriginal and non-Aboriginal perspectives on Canadian history will require that substantial effort be devoted to recording the histories of Aboriginal nations, in all their cultural and regional diversity. Aboriginal history is infused with story, song and drama and is rooted in particular places. It crosses the boundaries between physical and spiritual reality. It is imbedded in colonial accounts, represented visually in scrolls and petroglyphs, and etched in the memory of elders. Recording Aboriginal history will require varied methods of documentation, building on existing techniques for preparing printed text and historical atlases, and adapting evolving technologies for multi-media presentation. The scope of the undertaking we are proposing should be Canada-wide. Its significance to Canadian identity warrants the commitment of public resources but it should not be conceived of as a project of the state. It should be firmly under the direction of Aboriginal people, mobilizing the efforts and contributions of granting agencies, academics and educational and research institutions, private donors, publishing houses, artists and, most important, Aboriginal nations and their communities.68 The work of recording Aboriginal histories in this way is long overdue. Some historical work has been undertaken by Aboriginal organizations and communities, but it requires cataloguing and processing to be made fully accessible to the Aboriginal and nonAboriginal public. Aboriginal people are also acutely aware that elders and others who are fluent in Aboriginal languages and oral traditions are few in number and becoming fewer. An early start on the project and firm timelines for its completion are therefore a matter of urgency. Recommendations The Commission recommends that 1.7.1 The Government of Canada (a) commit to publication of a general history of Aboriginal peoples of Canada in a series of volumes reflecting the diversity of nations, to be completed within 20 years; (b) allocate funding to the Social Sciences and Humanities Research Council to convene a board, with a majority of Aboriginal people, interests and expertise, to plan and guide the Aboriginal History Project; and (c) pursue partnerships with provincial and territorial governments, educational authorities, Aboriginal nations and communities, oral historians and elders, Aboriginal and non-Aboriginal scholars and educational and research institutions, private donors and publishers to ensure broad support for and wide dissemination of the series.

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1.7.2 In overseeing the project, the board give due attention to • the right of Aboriginal people to represent themselves, their cultures and their histories in ways they consider authentic; • the diversity of Aboriginal peoples, regions and communities; • the authority of oral histories and oral historians; • the significance of Aboriginal languages in communicating Aboriginal knowledge and perspectives; and • the application of current and emerging multimedia technologies to represent the physical and social contexts and the elements of speech, song and drama that are fundamental to transmission of Aboriginal history.

Notes: 1 Constitution Act, 1982, section 35. 2 Lloyd Barber, Commissioner on Indian Claims, A Report: Statements and Submissions (Ottawa: Queen’s Printer, 1977), p. 2. 3 Charter of the World Council of Indigenous Peoples, p. 1. 4 Peter McFarlane, Brotherhood to Nationhood: George Manuel and the Making of the Modern Indian Movement (Toronto: Between The Lines, 1993), p. 226. 5 See George Manuel and Michael Posluns, The Fourth World: An Indian Reality (Don Mills: Collier-Macmillan Canada, Ltd., 1974). 6 See Douglas Sanders, “Indigenous Peoples and Canada’s Role on the International Stage”, research study prepared for the Royal Commission on Aboriginal Peoples [RCAP] (1994); and Douglas Sanders, “Developing a Modern International Law on the Rights of Indigenous Peoples”, research study prepared for RCAP (1994). For information about research studies prepared for RCAP, see A Note About Sources at the beginning of this volume. 7 What is now section 35 of the Constitution Act, 1982 was deleted.

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8 House of Commons, Special Committee on Indian Self-Government, Indian SelfGovernment in Canada, Report of the Special Committee (Ottawa: Queen’s Printer, 1983). 9 Louis Bruyere, “Aboriginal Peoples and the Meech Lake Accord”, in Canadian Human Rights Yearbook, 1988 (Ottawa: University of Ottawa Press, 1989), p. 51. 10 Clause 13 of the accord provided for annual first ministers conferences, beginning in 1988, on subjects such as Senate reform and fisheries. 11 See Boyce Richardson, ed., Drumbeat: Anger and Renewal in Indian Country (Toronto: The Assembly of First Nations and Summerhill Press, 1989). 12 Prime Minister Brian Mulroney, letter to Phil Fontaine, 18 June 1990, pp. 6-7. 13 Much of this description of the background to the Oka crisis comes from “Materials Relating to the History of the Land Dispute at Kanesatake”, prepared for the Claims and Historical Research Centre, Comprehensive Claims Branch, Indian and Northern Affairs Canada (January 1991, revised November 1993); from The Summer of 1990, Fifth Report of the Standing Committee [of the House of Commons] on Aboriginal Affairs (May 1991); and from Geoffrey York and Loreen Pindera, People of the Pines: The Warriors and the Legacy of Oka (Toronto: Little, Brown & Company (Canada) Limited, 1991). 14 “Materials Relating to the History of the Land Dispute at Kanesatake” (cited in note 13), p. 8. 15 “Materials Relating to the History of the Land Dispute at Kanesatake”, p. 10. 16 The commission’s report led to the adoption of Bill 150, An Act respecting the process for determining the political and constitutional future of Québec, Statutes of Quebec 1991, chapter 34, as amended by An Act to amend the Act respecting the process for determining the political and constitutional future of Québec, Statutes of Quebec 1992, chapter 47, which enabled the government of Quebec to hold a referendum on the Charlottetown Accord. 17 Citizens’ Forum on Canada’s Future, Report to the People and Government of Canada (Ottawa: Supply and Services, 1991), pp. 120, 127. 18 The general amending formula requires that constitutional amendments receive support from Parliament and the legislatures of seven provinces representing at least 50 per cent of the population. This level of support was not achieved in 1987. 19 This is required by section 49, which specifies that a meeting will be convened within 15 years of the amendment procedures coming into force (which was in April 1982, when the constitution was patriated). See Volume 5, Chapter 5.

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20 Positivism is concerned not so much with the content or substance of a particular rule of behaviour as with its form — for example, that a given rule is a law, as opposed to a mere moral or ethical precept. The classical exposition of the positivist approach is that of John Austin, who described laws as having three characteristics that distinguish them from other rules. Thus, a law is (1) a command; (2) issued by a political sovereign; and (3) enforceable by the state. Under this approach, a court in Canada would simply examine a legislative enactment to ensure that it had been validly passed by Parliament or a legislature within the limits of its law-making authority as set out in the Constitution Act, 1867. The ‘fairness’ or ‘justness’ of the enactment would not enter into the judicial calculation. See J.P. Fitzgerald, ed., Salmond on Jurisprudence, twelfth edition (London: Sweet & Maxwell Limited, 1966), chapter 1, “The Nature of Law”, for a discussion of the various philosophies of law, including positivism. 21 Several examples of tactics like this on the part of Indian affairs officials are given by E. Brian Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada (Vancouver: University of British Columbia Press, 1986), p. 102. 22 See Titley, A Narrow Vision, pp. 104-109, for a description of tactics used by Indian affairs officials to hinder and discredit Loft and his movement. 23 Pasco v. Canadian National Railway Co., [1986] 1 C.N.L.R. 35 at 37, per MacDonald J. (B.C.S.C.). 24 As explained in our earlier constitutional commentary, Partners in Confederation: Aboriginal Peoples, Self-Government, and the Constitution (Ottawa: Supply and Services, 1993). 25 More precisely, appeals were abolished in 1933 for criminal cases and in 1949 for civil cases. Cases in process in 1949 were concluded in 1952. 26 Manuel and Posluns, The Fourth World (cited in note 5), pp. 6-7. 27 St. Catherine’s Milling and Lumber Company v. The Queen (1888), 14 Appeal Cases 46 (JCPC). 28 After 1867, it will be recalled, the executive power of the British Crown, one and indivisible in the United Kingdom because it is a unitary state, was exercised by the governor general of Canada and the lieutenant governors of the provinces. Thus the Crown was, in effect, ‘split’ between the dominion and provincial governments to accommodate Canada’s federal structure. See The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick, [1892] Appeal Cases 437 (JCPC), where it was held that the provincial lieutenant governor, as the representative of the sovereign, possessed all the privileges, powers and immunities and of the Crown as a function of the division of legislative powers between Canada and the provinces in the Constitution Act, 1867.

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29 This was because of the effect of section 109 of the Constitution Act, 1867 which, at Confederation, had vested in the province underlying title to Crown lands within the new provincial boundaries. The dominion argument was based on the exceptions to this grant contained in section 109 and on the power accorded to the new dominion in section 91(24) over “Indians, and Lands reserved for the Indians”. 30 21 U.S. (8 Wheaton) 543 at 574 (1823). 31 Worcester v. Georgia at 544. 32 R. v. Sparrow, [1990] 1 S.C.R 1075 at 1103-1104. 33 [1965] S.C.R. vi; (1966) 52 D.L.R. (2d) 481 (S.C.C.). 34 (1965), 52 W.W.R. 193. Davey, Sullivan and Norris JJA concurred in finding that the Indian Act provision favouring treaties over provincial laws was determinative of the issue, with Sheppard and Lord JJA dissenting. The Supreme Court of Canada affirmed the majority decision of the court of appeal. 35 Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313. 36 Extinguishment is the legal term used to refer to the Crown action of putting an end to Aboriginal title or to Aboriginal rights. This is usually accomplished by treaty cessions by Aboriginal people or by legislation to this effect. Much of the dispute in modern Canadian history is over the precise effect of legislation on Aboriginal rights and title, and how one gages whether the legislation has expressed a “clear and plain” intent to extinguish. For a discussion of Canadian extinguishment policy, see Royal Commission on Aboriginal Peoples, Treaty Making in the Spirit of Co-existence: An Alternative to Extinguishment (Ottawa: Supply and Services, 1995). 37 Calder (cited in note 35), p. 328. 38 The injunction case is reported as Gros-Louis et al. v. La Société de Développement de la Baie James et al., [1974] Rapports de Pratique de Québec 38; the appeal is reported as James Bay Development Corporation v. Kanatewat (1973), 8 Canadian Native Law Cases 414. 39 Baker Lake v. Minister of Indian Affairs and Northern Development, [1979] 1 F.C. 487 at 557-558. 40 Guerin v. The Queen, [1984] 2 S.C.R. 335. The Court was divided on the precise nature of the obligation (fiduciary, trust or agency) and exactly when it arose in the context of the Indian Act land surrender transaction under consideration (before or upon actual surrender by the band). The judgement by Chief Justice Dickson (as he was by the time the judgement was rendered), on behalf of four justices, is generally accepted as the definitive statement:

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... where by statute, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary. (p. 384) 41 [1985] 2 S.C.R. 387. 42 This term refers to early treaties between European nations and Indian tribes and bands that do not involve land cessions. There has always been some question in Canadian law about the precise legal effect of these documents, since they were entered into before Confederation and by their terms do not deal with land. 43 R. v. Syliboy (1929), D.L.R. 307 (N.S. County Court). 44 This principle is based on similar principles of American Indian law and was first articulated by the Supreme Court in 1983 in Nowegijick v. The Queen, [1983] 1 S.C.R. 29, in the context of an interpretation of section 87, the tax exemption provision in the Indian Act. 45 Simon (cited in note 41), p. 404. 46 Simon, p. 399 per Dickson C.J. 47 Simon, pp. 407-408. 48 [1990] 1 S.C.R. 1025. 49 Sioui, p. 1053. 50 Sioui, p. 1056. 51 Sioui, p. 1071. 52 A framework agreement for the establishment of a new relationship between the Huron-Wendat Nation, the government of Canada and the government of Quebec was signed on 10 August 1995. The parties agreed to undertake simultaneous negotiations concerning the application of the Murray Treaty of 1760 and the establishment of selfgovernment for the Huron-Wendat. 53 Sparrow (cited in note 32). 54 Sparrow, p. 1108. 55 Sparrow, pp. 1113-1119. Section 35 rights are not absolute but can be limited under certain circumstances if the government action can be justified by means of a three-part test:

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1. Is there a valid federal legislative objective such as conservation, the prevention of harm or some other “compelling and substantial” objective? 2. Is the honour of the Crown maintained so as to respect the fiduciary relationship and give the proper priority to the Aboriginal or treaty right? 3. Are there other issues to be considered in maintaining the honour of the Crown, such as minimizing the infringement of the right, adequately compensating Aboriginal people in the case of expropriation, and fully consulting them before infringing the right? Like the categories of fiduciary to which the Court referred in Guerin (cited in note 40), the court said that the factors listed in point 3 were open to expansion as circumstances might warrant in the context of the overall relationship between Aboriginal peoples and Canadian society. 56 Sparrow, p. 1114. 57 Delgamuukw v. British Columbia, [1991] 3 W.W.R. 97 (B.C.S.C.). Chief Justice McEachern made many references to the social and political conditions of the Gitksan and Wet’suwet’en, stating that “aboriginal life in the territory was at best, nasty, brutish and short” (p. 126), that the plaintiffs’ ancestors were “by historical standards, a primitive people” (p. 141), were “hardly amenable to obedience to anything but the most rudimentary form of custom” (p. 202), had only “a rudimentary form of social organization” (p. 202), and had no institutions by which to govern their territory: “I find they more likely acted as they did because of survival instincts” (p. 373). 58 Delgamuukw, p. 383. 59 [1993] 5 W.W.R. 97. The three judges were Macfarlane, Taggart and Wallace. 60 Judges Lambert and Hutcheon. 61 Solomon Sanderson, “Foreword”, in Delia Opekokew, The First Nations: Indian Government in the Community of Man (Regina: Federation of Saskatchewan Indian Nations, 1982), p. ix. 62 Lovelace v. Canada, [1981] 2 Human Rights Law Journal 158; 68 I.L.R. 17. The decision was made by the Human Rights Committee (established pursuant to the International Covenant on Civil and Political Rights). The committee held that Lovelace’s automatic loss of Indian status upon marrying a non-Indian deprived her of the cultural benefits of living in an Indian community. The rationale for the Indian Act provision denying her the right to live in the Indian community was found not to be reasonable or necessary to preserve the identity of the tribe. 63 See our discussion of Bill C-31 in Chapter 9. As noted there and in Volume 4, Chapter 2, it is our view that Bill C-31 has not corrected the problem of sex discrimination against

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Sandra Lovelace and other First Nations women, but has merely postponed the effects for another generation. In addition, under the present system, Bill C-31 also poses a threat to the overall population of status Indians, because of the way the new distinctions between sections 6(1) and 6(2) of the Indian Act work in practice. See also Chapter 2, notes 13 and 14 and accompanying text. 64 In its 1993-94 annual report, the Inuit Tapirisat of Canada gave a figure of 115,000, while the Inuit Circumpolar Conference puts the number at 120,000. An adjustment to the number of Inuit living in Canada, based on the adjusted figures from the 1991 Aboriginal Peoples Survey, increases the ICC estimate by 8,000. 65 “Preamble”, Inuit Circumpolar Conference Charter, revised and amended July 1986, Kotzebue, Alaska, p. 2. 66 This is 16.51 per cent of the land in the Nunavut Settlement Area and 18.3 per cent of the land in that portion of the Settlement Area open to selection. Tunngavik Inc. reports marginally higher percentages. See Terry Fenge, “Inuit land ownership: A note on the Nunavut agreement”, Etudes/Inuit/Studies 17/1 (1993), pp. 147-150. The dollar amount is the value at the first quarter of 1989. For details see the “Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada” (Ottawa: 1993), article 32, “Capital Transfers”, p. 319. 67 See Royal Commission on Aboriginal Peoples, “Ethical Guidelines for Research”, (1992), reproduced in an appendix to Volume 5. 68 In working papers prepared for the Commission a concept and workplan for a general history of Aboriginal peoples were developed. See Ted Chamberlin and Hugh Brody, “Aboriginal History, Report to the Royal Commission on Aboriginal Peoples”, research study prepared for RCAP (1993); and Ted Chamberlin, “Aboriginal History Update” (August 1993). The project as conceived would include a series of volumes documenting the histories of diverse Aboriginal nations, an historical atlas, and a volume on historical methods appropriate to the presentation of Aboriginal history. It would draw on insights gained in the production of the General History of Africa, sponsored by UNESCO, and from the Australian Aboriginal Arts Board, which has influenced representations of Aboriginal people in the arts and sciences and humanities in Australia. The preparation of histories of particular nations would be the responsibility of local groups, while the series itself would be guided by a small board responsible for maintaining momentum and coherence in the overall project. The board could be convened initially through the Social Sciences and Humanities Research Council but might later be included in the mandate of an Aboriginal institution such as the Aboriginal Peoples’ International University or the Aboriginal Arts Council proposed in Volume 3.

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For additional background on approaches to Aboriginal history, see Lorraine Brooke, “An Inventory of Mapping Projects in Connection with Aboriginal Land and Resource Use in Canada”, and Julie Cruikshank, “Claiming Legitimacy: Oral Tradition and Oral History”, papers prepared for the RCAP history workshop (February 1993).

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Volume 1 - Looking Forward Looking Back PART TWO False Assumptions and a Failed Relationship

PART TWO False Assumptions and a Failed Relationship

8

Introduction THE COMMISSION'S EXAMINATION of 500 years of relations between Indigenous peoples and newcomers in the land we have come to call Canada has been cast in four stages: separate worlds, contact and co-operation, displacement and assimilation, and negotiation and renewal. We now take a closer look at the third stage, displacement and assimilation. Our focus shifts from an historical overview to an examination of certain government actions and the consequences of the balance of power shifting decisively to non-Aboriginal people. These actions were based, as we will see, on assumptions that were false.

The following chapters focus on four areas of federal policy and action: the Indian Act, which was and remains the legislative centrepiece of federal policy; residential schools, through which Aboriginal children were uprooted from families and traditions with the objective of assimilation into non-Aboriginal society; the relocation of entire Aboriginal communities in the name of development or administrative efficiency; and the treatment of Aboriginal veterans who served Canada in wartime but were the victims of governmental neglect in the peace that followed. Aboriginal people see evidence of profound injustice in many aspects of government policy. We selected these four areas for scrutiny because Aboriginal people have said they were among the most unjust policies imposed on them and that those injustices, while rooted in history, have effects that continue to this day. They were not the only policies that demonstrated false assumptions and abuse of power. The federal government's approach to the Métis people, examined in Volume 4, Chapter 5, as well as many of the social and economic policies analyzed in Volume 3, show similar characteristics. We believe it is crucial for Canadians to understand what happened during this extended period of our history — not in some abstract or theoretical way, but in terms of how average Canadians would feel and react had they been treated in a similar way. Canadians will then recognize the inequities perpetrated in their name and agreed to by

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electorates throughout the decades. The punishing effects linger today in consciousness and the daily lives of Aboriginal people. In this part we examine the false assumptions, the ingrained views based on ignorance or prejudice, that lay behind the policies examined here. We also draw attention to the abuse of power that took place — not just periodic unfairness, but excessive and systematic political dominance, reflected in both the processes and the outcomes of governance. Each chapter tells its own story. Each should be understood on its own terms, but also in relation to the cumulative impact of the policies described. This larger pattern is most important. In drawing out the false assumptions and abuses of power that characterized the displacement and assimilation stage of relations, we recognize that causal relationships are complex. Stereotypes are shaped by the times in which they appear. In Chapter 6 we described the shift in political, economic and social conditions that brought the period of contact and co-operation to a conclusion. It was under these conditions that the false assumptions flourished and became incorporated into the public policies of the time. The links between false assumptions and the abuse of power are equally complex. In one sense, the former are the cause and the latter the effect. Once the cycle has begun, however, cause and effect can be, and often are, interactive; abuse of power produces new ideas that are false. Both simple and complex links are evident in the discussion that follows.

1. False Assumptions Four false assumptions are starkly revealed by the policies examined in this part: 1. The first held Aboriginal people to be inherently inferior and incapable of governing themselves. 2. The second was that treaties and other agreements were, by and large, not covenants of trust and obligation but devices of statecraft, less expensive and more acceptable than armed conflict. Treaties were seen as a form of bureaucratic memorandum of understanding, to be acknowledged formally but ignored frequently. All four areas of policy or action ran roughshod over treaty obligations. 3. The third false assumption was that wardship was appropriate for Aboriginal peoples, so that actions deemed to be for their benefit could be taken without their consent or their involvement in design or implementation. 4. The fourth was that concepts of development, whether for the individual or the community, could be defined by non-Aboriginal values alone. This assumption held whether progress was seen as Aboriginal people being civilized and assimilated or, in later times, as resource development and environmental exploitation.

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The fact that many of these notions are no longer formally acknowledged does not lessen their contemporary influence. As we will see, they still significantly underpin the institutions that drive and constrain the federal Aboriginal policy process.

2. The Abuse of Power The starting point that set the context for later abuses of power was the inherent ineffectiveness of the democratic political relationship as seen by Aboriginal peoples. There has been a profound absence of representation for Aboriginal peoples in Canadian democratic institutions. But more important, such representation, when cast in terms of conventional Canadian democracy, is itself regarded as illegitimate. Aboriginal peoples seek nation-to-nation political relations, and these cannot be achieved simply by representation in Canadian political institutions. The evidence of a lack of representation in traditional Canadian democratic processes is not hard to find. First Nations people did not have the right to vote in federal elections until 1960, though some other Aboriginal people had the right earlier. Even after the right to vote was won, the geographic dispersal of Aboriginal people — still a small minority within federal and provincial electoral constituencies — meant that political representation and leverage have been severely limited. Since Confederation, only 13 of the approximately 11,000 seats available in the House of Commons have been occupied by Aboriginal people. Several other factors also undermined Aboriginal peoples' exercise of political authority: the highly truncated authority Aboriginal governments exercise under the Indian Act; the absence until relatively recently of viable national political organizations through which their views can be represented on the national scene; limited access to national political parties; and a highly dispersed and complex bureaucracy, allowing government departments to deflect blame and postpone action. The false assumptions, operating in the context of an ineffective political relationship — and one seen as illegitimate by Aboriginal people — contributed to abuse of power. Even in the context of the more limited political freedom of the decades in which those assumptions gained ascendancy, that abuse would never have been tolerated had it been imposed on the majority population of the day. Its expression was often more subtle than the exercise of raw power. But viewed cumulatively, what emerged was an abuse of power that was systemic and excessive. The first attribute of the abuse of power is the raw intrusiveness of the instruments of policy used by the state in Aboriginal matters. These policy instruments did not seek only to influence or guide, as is the case in many other areas of public policy; rather, they invaded Aboriginal peoples' lands, traditions, lives, families and homes, with a cradle-tograve pervasiveness that other Canadians would have found utterly intolerable if applied to them. The Indian Act was the battering ram but, as the following chapters show, it was far from being the sole instrument of invasion.

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A second attribute of the abuse of power is the unimpeded exercise of bureaucratic authority and its accompanying institutional inertia. Supposedly guided by overall ministerial direction, but often administered in punitive fashion far from public scrutiny, the departments charged with responsibility for Indian affairs often displayed unconscionable use of bureaucratic power. For Aboriginal people, no amount of recent administrative delegation can offset the effects of tens of thousands of adverse bureaucratic decisions by officials who exercised complete authority over the minutiae of their daily lives over the decades. Moreover, the more intrusive the agencies and instruments of policy were, the harder they were to unravel and change. The exercise of unbridled authority leads inevitably to resistance to change and to a perverse inertia, which also sets in among Aboriginal people themselves. The status quo represented by the Department of Indian Affairs and Northern Development and the Indian Act is opposed and even detested. But in the absence of any fundamental trust that their interests will be safeguarded, many Aboriginal people express great fear of change.

3. The Four Policies in Brief Before examining the policies in detail, we provide a brief overview of how false assumptions and abuses of power permeated the implementation of Aboriginal policy. We begin with an account of the Indian Act in Chapter 9. Passed in 1876 under Parliament's constitutional authority for "Indians, and Lands reserved for the Indians," the legislation intruded massively on the lives and cultures of status Indian people. Though amended repeatedly, the act's fundamental provisions have scarcely changed. They give the state powers that range from defining how one is born or naturalized into 'Indian' status to administering the estate of an Indian person after death. Conceived under the nineteenth century's assumptions about inferiority and incapacity and an assimilationist approach to the 'Indian question', the Indian Act produced gross disparities in legal rights. It subjected status Indians to prohibitions and penalties that would have been ruled illegal and unconstitutional if applied to other Canadians. This account also demonstrates how public discussion — as recent as the debates of the last decade about Aboriginal self-government — has reflected and continues to reflect the abiding prejudices of earlier eras. The Indian Act still holds a symbolic but powerful grip on the thinking of Canadians. Perhaps less well appreciated is the way the Indian Act, because of its separation of status and non-status Indians, has influenced how national Aboriginal political organizations are structured. The legislation helped institutionalize divisions between Aboriginal political organizations. This is not to suggest that Aboriginal peoples do not have divisions and differences of their own. However, the Indian Act legislated key divisions and helped create Aboriginal political structures that made divide-and-conquer politics an easier game to play.

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Second, we examine the residential school policy. Of all the nineteenth-century policies formulated to respond to the Indian question, none was more obviously the creature of that era's paternalistic attitudes and its stern assimilative determination than residential school education, the subject of Chapter 10. Adapted in part from models of industrial schools in the United States in the 1880s, the policy initially established boarding schools to teach the arts, crafts and industrial skills. But more important for policy makers of the day, the schools would remove Aboriginal children from their families and cultures and expose them continuously to more 'civilizing' influences. The residential schools policy was applied to the children of Aboriginal people — Indian, Inuit and Métis. The residential schools policy was constructed on the false assumptions of its day, overlaid with Christian duty. While the civilizing assumptions reflected a state-led policy, its determined implementation rested on an entrenched church/government partnership. Thousands of Aboriginal children were removed from their homes and communities and placed in the care of strangers, whose appointed duty was, in effect, to separate them from their traditional cultures and to 'civilize' them in the ways of the dominant European, Christian society. Residential school policy was strongly opposed by Aboriginal people. Despite the opposition, and evidence of abusive situations, nothing changed for decades. The damage to thousands of Aboriginal people, once children and now adults, continues to the present day. Bad policies always claim victims. But the effects of bad education policies seep through the decades, from child to parent to family to community, and from one generation to those that follow. Third, the study of relocations in Chapter 11 reflects quintessentially the assumption that government had the right to act unilaterally on behalf of Aboriginal people without the opportunity for their fully informed participation. Relocations were a widespread practice. They were not rare events to be forgotten in the recesses of collective political memory. The rationales varied: the need to disperse Aboriginal people back to the land or to alleviate population or economic scarcity problems; the desire to centralize or to facilitate less expensive program delivery; and the intention to proceed with natural resource and other forms of economic development. The rationales varied, but all were influenced by the view that Aboriginal people were unsophisticated and incapable of making their own choices. Moreover, the manner of relocating Aboriginal people — apparently without meaningful consultation or involvement or their free and informed consent, and often at very short notice — suggests that normal democratic rights and processes simply did not apply. Aboriginal people were moved, not because they wanted to be moved, but because they were, in raw political terms, moveable. The Commission's research shows that the effects of relocations are felt today in significant ways. Many thousands of people were moved, their economic self-sufficiency was often weakened or destroyed, and their adverse health conditions were made worse.

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Aboriginal political leadership and structures collapsed in the inevitable malaise, not of their own making, that followed. The chain formed by the linked policies examined in Chapters 9, 10, and 11 must be emphasized from the outset. The Indian Act and its incredible intrusiveness made policies on residential schools and relocations easier to implement — indeed, perhaps almost inevitable. Fourth, the chapter on Aboriginal veterans (Chapter 12) demonstrates the pervasiveness of the wardship approach. Many Aboriginal peoples had a history, before the nineteenth century, of military and related alliances with European nations. As we saw in Part One of this volume, these alliances entailed reciprocal duties and obligations, delineated and confirmed through spiritual as well as temporal ceremonies. Despite subsequent ill-treatment, many Aboriginal people maintained their sense of allegiance to the Crown and volunteered for Canada's armed forces in large numbers in both world wars. Hundreds lost their lives. Although accepted as full citizens while on military duty, returning Aboriginal veterans were treated unfairly after both world wars. They were denied equivalent recognition and many of the benefits their non-Aboriginal comrades enjoyed.

4. New False Assumptions The four false assumptions may well be officially disavowed now, but this does not end the capacity of political institutions to devise new ones. One such modern variant, evident in the more complex politics of the last three decades and very much current today, is that Aboriginal peoples constitute an interest group, one among many in a pluralistic society. They, along with the labour movement, the agricultural lobby, or any other interest group are to be listened to respectfully, but their demands are subject to the political agenda and trade-offs of the day. They are not seen as having legitimate political authority, as being nations entitled to treatment as nations.1 Before the 1950s and '60s, Aboriginal people were not even dignified with the label interest group. They were treated as an object of policy paternalism and wardship. Without the vote, First Nations people could easily be dismissed as politically irrelevant. National political parties, also a key conduit of interest group demands, were hardly hospitable. Moreover, Aboriginal people had only the beginnings of viable national political organizations. Even when they did form such organizations, governments did not consult them adequately, much less listen to them.2 In addition, as we have seen, the very structure of some of those organizations was flawed because of Indian Act provisions. The Commission's research shows that the overall policy process with respect to Aboriginal peoples has improved somewhat in the last decade.3 However, it has been a

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decade of small gains in the normal (non-constitutional) policy process set against a 200year history of losses. Moreover, if pluralism has brought a somewhat greater measure of benefit for Aboriginal people, pluralism alone cannot deliver what is being sought. Aboriginal peoples seek a recognition of their rights as peoples. This brief overview suggests only an intimation of what Commissioners see as crucial lessons to be drawn from a sad policy history told in four parts. Some important recommendations are made in each area, either in this or subsequent volumes, but in general, these chapters are concerned with overall lessons that Canadians — not just their governments — need to make their own.

Notes: 1 G. Bruce Doern, “The Politics of Slow Progress: Federal Aboriginal Policy Processes”, research study prepared for the Royal Commission on Aboriginal Peoples [RCAP] (1994), chapters 2 and 6. For information about research studies prepared for RCAP, see A Note About Sources at the beginning of this volume. 2 Sally Weaver, Making Canadian Indian Policy: The Hidden Agenda 1968-79 (Toronto: University of Toronto Press, 1981). 3 See Doern, “The Politics of Slow Progress” (cited in note 1), chapter 7.

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Volume 1 - Looking Forward Looking Back PART TWO False Assumptions and a Failed Relationship

9

The Indian Act that in 1982 our written constitution was amended as part of the process of completing the evolution of Canada as a self-governing nation. As recounted in Chapter 7, one of the 1982 amendments addressed the special constitutional status of the Aboriginal peoples of Canada — which includes the Indian, Inuit and Métis peoples — by recognizing and affirming their Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. Since then there have been several first ministers conferences with the goal of completing the constitutional renewal process by explicitly entrenching the right of Aboriginal self-government within the Canadian constitution.

MOST CANADIANS KNOW

In 1993 we published Partners in Confederation, in which we asserted that there are good reasons to believe that the Aboriginal rights referred to in section 35 include the inherent right of self-government.1 Our conclusion was based on, among other things, the wording of the Royal Proclamation of 1763. As our earlier discussion showed, through that authoritative statement, the Crown offered its protection to the Aboriginal peoples as self-governing nations whose relative political autonomy and land rights it recognized. In our view, by referring to these rights, section 35 has already entrenched them in the constitution. They need now to be implemented in an orderly and appropriate way. Many Canadians appear to agree with us. Efforts are continuing to implement the inherent right of self-government and thereby to reaffirm the special status of Aboriginal peoples within the Canadian federation. In this context it is important to realize that the unique constitutional position of Aboriginal peoples did not originate with the 1982 constitutional amendments, important as they were. There are references throughout Canadian history to the singular place of Indian peoples, Inuit and Métis people in the collective enterprise now known as Canada. Many constitutional documents attest to this, including, of course, the Constitution Act, 1867 with its familiar reference to federal jurisdiction over "Indians, and Lands reserved for the Indians" in section 91(24). In 1939 the Supreme Court of Canada recognized that the term 'Indian' as used in section 91(24) also includes Inuit.2 We are of the view that it includes the Métis people as well.3 The distinctive rights accorded Indian tribal nations (or First Nations, as we refer to them today) are mentioned in official documents as early as the eighteenth century. One of the most significant references occurs in the Royal Proclamation of 1763. Issued by King George III to confirm the special relationship between the Crown and First Nations, the 235

Proclamation has been described by one Canadian Supreme Court judge as "the Indian Bill of Rights"4 and by another as having legal force "analogous to the status of Magna Carta".5 In addition to its constitutional status, this document has a powerful symbolic importance and is often cited by Aboriginal peoples in their quest to regain their relative autonomy within the Canadian federation. We discussed the nature and significance of this document in Chapter 5 of this volume and will say more about it here in the context of the Indian Act. Many other constitutional documents refer to the rights of First Nations. For example, the statutes confirming the entry of Manitoba and British Columbia into Canada, the order by which Canada acquired the Hudson's Bay Company territories, federal legislation granting Ontario and Quebec additional lands in the North, and legislation giving the prairie provinces control over their resources all refer in one way or another to Indians, treaties, Indian lands and other related rights.6 Treaties are also constitutional documents reflecting the special status of the tribal nations that signed them with the Crown. There are so many references to Indian people and Indian rights in documented Canadian history that the Pepin-Robarts Task Force on Canadian Unity acknowledged in 1979 that "native people as a people have enjoyed a special legal status from the time of Confederation, and, indeed, since well before Confederation."7 The Indian Act is yet another manifestation of this status. Passed originally in 1876 under Parliament's constitutional responsibility for Indians and Indian lands, it is based on Indian policies developed in the nineteenth century and has come down through the years in roughly the same form in which it was first passed. Until the 1982 amendments to the constitution, it was the single most prominent reflection of the distinctive place of Indian peoples within the Canadian federation. It too has powerful symbolic importance. In fact, when the federal government recommended in 1969 that it be repealed as part of a proposed new approach to Indian policy,8 Indian people across Canada protested. A young Cree leader, Harold Cardinal, wrote a book that became the Indian alternative to the federal proposals: We do not want the Indian Act retained because it is a good piece of legislation. It isn't. It is discriminatory from start to finish. But it is a lever in our hands and an embarrassment to the government, as it should be. No just society and no society with even pretensions to being just can long tolerate such a piece of legislation, but we would rather continue to live in bondage under the inequitable Indian Act than surrender our sacred rights. Any time the government wants to honour its obligations to us we are more than ready to help devise new Indian legislation.9 Thus, and despite its symbolic importance, the distinctive place accorded Indian people by the Indian Act was not a privileged one. It was marked by singular disparities in legal rights, with Indian people subject to penalties and prohibitions that would have been ruled illegal and unconstitutional if they had been applied to anyone else in Canada. Moreover, and despite their direct relationship with the federal government, the majority of Indian people living on reserves could not vote in federal elections until 1960. Indian people could not manage their own reserve lands or money and were under the

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supervision of federally appointed Indian agents whose job it was to ensure that policies developed in Ottawa were carried out on the various reserves across Canada. Indian people chafed within the confines of this legislative straitjacket. It regulated almost every important aspect of their daily lives, from how one acquires Indian status to how to dispose of the property of an Indian at death and much else. Many attempts have been made through the years to free Indian people from the Indian Act legal regime. Although usually well-intentioned, many of these efforts have been ill-conceived and badly carried out. Rarely were Indian peoples consulted on what to do to alleviate the problems posed by the Indian Act, and almost never were their proposals for reform taken seriously. In many ways the history of the evolution of the Indian Act has been a dialogue of the deaf, marked by the often vast differences in philosophy, perspective and aspirations between Canadian policy makers and Indian people. Indian people have been consistent in calling for respect for their special constitutional status, especially in the context of the Indian Act and its colonial predecessors. However, Canadian officials have generally interpreted Indian proposals for reform of Indian policy as yet another indication of their need for further guidance, for even sterner measures to help them adapt to the culture and political ways of the settler society that has grown up around them. For example, when the elective band council system was first introduced in 1869 as a way of undermining traditional governance structures, Indian nations were not easily persuaded to adopt it. Two years after passage of the legislation implementing the band council system, Deputy Superintendent Spragge is reported to have observed that Indian opposition to adopting what was clearly an alien system owed less to its cultural inappropriateness than to the fact that "the Indian mind is in general slow to accept improvements", but that "it would be premature to conclude that the bands are averse to the elective principle, because they are backward in perceiving the privileges which it confers."10 Indian people have refused consistently, however, to renounce the constitutional special status that their unique place in Canadian history assures them and have resisted efforts to force them to abandon their cultures and forms of social organization to become Canadians like all others. The Indian Act has thus become the battleground for the differing views of Canadian officials and Indian people about their rightful place within the Canadian federation. But the battles have not been straightforward, nor have they always been overt. Much has occurred in the shadows of Canadian history, in the meeting rooms of commissions of inquiry11 and in the halls of Parliament and the offices of federal public servants.12 Decisions taken by bureaucrats and politicians behind closed doors, although little known in the broader Canadian society, have had a profound impact on Indian people. This impact has been experienced more often than not as oppressive and has engendered deep suspicions on the part of Indian people about the ultimate intentions of Canadian policy makers toward them.

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Today the Indian Act is the repository of the struggle between Indian peoples and colonial and later Canadian policy makers for control of Indian peoples' destiny within Canada. The marks of that struggle can be seen in almost every one of its provisions. By examining the act, how it came about and how it continues to influence the daily experience of Indian people in Canada, much can be learned about why reform is so difficult to achieve at present. By the same token, an examination of the Indian Act will also show why reform or complete repeal is needed so vitally now. It is clear that many mistakes have been made in the past. A new or renewed relationship of partnership between Aboriginal peoples and other Canadians can be achieved only through awareness of these mistakes and avoidance of the false and unwarranted assumptions that led to them. That is the purpose of this chapter.

1. The Paradox of INDIAN ACT Reform In the 1960s the Hawthorn report on Indian conditions in Canada observed that until the Second World War, "Indian reserves existed in lonely splendour as isolated federal islands surrounded by provincial territory."13 In a real as well as a metaphorical sense, Indian communities were not part of Canada. The lonely splendour of their isolation was at once geographic, economic, political and cultural and was enforced by the special legal regime contained in the Indian Act. It set Indian people apart from other Canadians and, although protective of their rights, was the source of much criticism by Indian leaders and concerned Canadians alike. In 1969, the recently elected federal government — like many other Canadians at the time — wished to eliminate the barriers that were seen increasingly as preventing Indian people from participating fully in Canada's prosperity. The government issued a white paper on Indian policy that, if implemented, would have seen the global elimination of all Indian special status, the gradual phasing out of federal responsibility for Indians and protection of reserve lands, the repeal of the Indian Act, and the ending of treaties. The government watchword was equality, its apparent goal "the full, free and nondiscriminatory participation of the Indian people in Canadian society" on the basis "that the Indian people's role of dependence be replaced by a role of equal status".14 Surprised by the massive and fervent opposition to this measure, the government was forced to withdraw its proposal in 1970. The Indian Act, largely unchanged, is still with us.15 Nonetheless, most still agree that progress in self-government, in economic development and in eradicating the social ills afflicting many Indian communities cannot be accomplished within the confines of the Indian Act. Despite being its harshest critics, however, Indian people are often extremely reluctant to see it repealed or even amended. Many refer to the rights and protections it contains as being almost sacred, even though they are accompanied by other paternalistic and constraining provisions that prevent Indian peoples assuming control of their own fortunes. This is the first and most important paradox that needs to be understood if the partnership between First Nations and other Canadians is to be renewed.

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Seen in this light, the profound ambivalence of First Nations toward the Indian Act begins to make more sense. To shed additional light on the origins of Canada's Indian policies we must go further back into Canadian history, however. It is there that the tangled roots of the Indian Act and the many paradoxes it discloses can be found. The major and underlying paradox, and the key to unravelling the others, lies in the unique way Indian sovereignty has been conceptualized in Canadian legal and constitutional thinking.

2. Indian Sovereignty and the ROYAL PROCLAMATION OF 1763 Until recently, North American history has been presented as the story of the arrival of discoverers, explorers, soldiers and settlers from Europe to a new world of forest, lake and wilderness. Indian peoples have been portrayed as scattered bands of nomadic hunters and few in number. Their lands have been depicted as virtually empty — terra nullius, a wilderness to be settled and turned to more productive pursuits by the superior civilization of the new arrivals. In the same way, Indian people have been depicted as savage and untutored, wretched creatures in need of the civilizing influences of the new arrivals from Europe. This unflattering, self-serving and ultimately racist view coincided with the desire of British and colonial officials to acquire Indian lands for settlement with the minimum of legal or diplomatic formalities. The view prevailed throughout the nineteenth century when the foundations for the Indian Act were being laid. Many Canadians may still maintain such beliefs. We now know that this picture is simplistic and one-sided. As described in earlier chapters, Indian nations were organized into societies of varying degrees of sophistication. Many practised and taught agricultural techniques to the new arrivals and had established intricate systems of political and commercial alliances among themselves. The forests were not trackless; they were traversed by well-known trails created for trade and other social purposes well before the arrival of Europeans. Rivers and lakes served as highways and as natural boundaries between tribal nations. Many tribes were relatively large in population and had spawned smaller off-shoot tribes precisely because of population pressures. In short, there is an increasing body of evidence that Indian nations were far more subtle, sophisticated and numerous than the self-consciously 'civilized' Europeans were prepared to acknowledge.16 Europeans did not arrive, therefore, to an empty and untamed land. In many ways their arrival was more like an invasion and displacement of resident peoples of varying but evident cultural attainments. The arrival of the newcomers was accompanied by European diseases to which Indian people were vulnerable and that drastically reduced their populations, destroying some nations completely and weakening others immeasurably. In the face of these pressures many tribal nations broke up and were gradually absorbed by the new settler societies around them. Fearing this fate, others were forced to leave their historical homelands and to move away from the settled colonies farther into the interior, abandoning vast territories to the emerging settler society. Later, during the nineteenth and even into the twentieth century, many Canadian policy makers clung to the notion that, if Indian people were prevented from removing

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themselves from the cultural influences of the surrounding non-Indian society, they would eventually be absorbed piecemeal and simply disappear as distinct peoples. As our historical review of the relationship between Aboriginal and non-Aboriginal peoples showed, from the moment of their arrival, the political and commercial manoeuvring of the various European powers drew Aboriginal nations into their conflicts, further reducing Aboriginal numbers and increasing their dependence on European trade goods and arms. Finally, after more than 200 years of trade, warfare and social interaction, the victorious British Crown attempted to stabilize relations between Indian nations and colonists. The method chosen was a public proclamation confirming the nature, extent and purpose of the unique relationship that had developed in North America between the British Empire and Indian nations. The Royal Proclamation of 1763 accomplished purposes already reviewed in some detail in our historical outline. Two of them are of particular significance here. First, the Proclamation drew a line separating Indian tribal lands from those forming part of the colonies. These lands were reserved for Indian peoples' exclusive use and possession. In that way the Crown hoped to remove the constant colonial pressure for lands that had pushed many tribal nations into the interior and that threatened to lead to new wars between Indian peoples and colonists. By guaranteeing Indian lands, the Crown established itself as their protector, thereby undertaking a role that continues today. It is reflected in the reserve system, whereby separate tracts of land — whether set aside originally by the imperial Crown, colonial governments, the federal government or provincial governments17 — continue to be reserved as Indian lands under a special legal regime that differentiates them from other lands within provincial or territorial boundaries. A second thing the Royal Proclamation did was initiate an orderly process whereby Indian land could be purchased for settlement or development. Before that process, private individuals — land speculators and colonial officials — had often perpetrated frauds on Indian sellers and non-Indian purchasers alike. This had greatly damaged relations between Indian nations and the Crown and produced instability in commercial relations that was harmful to both Indian and colonial economic interests. In future, lands could be surrendered only on a nation-to-nation basis, from the Indian nation to the British Crown, in a public process in which the assembled Indian population would be required to consent to the transaction. The present Indian Act continues to reflect the land surrender procedure first set out in the Royal Proclamation. It must be noted, however, that the federal government has failed, for reasons that will become evident later, to recognize the original "Nations and Tribes" to which the Proclamation refers and has instead substituted for them the artificial legal entities known as bands. Despite this, the land surrender provisions are the centrepiece of the entire act and the provisions most ardently defended by First Nations today.

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By clearly recognizing a right to land and by mandating a formal nation-to-nation land surrender process, the Royal Proclamation did more than recognize a particular method of setting aside and purchasing land. It also recognized the autonomy of tribal nations as self-governing actors within the British imperial system in North America. Indian peoples were not mere collections of private individuals like other Crown subjects; they were distinct peoples — political units within the larger political unit that was eventually to become Canada. The early British imperial system was tripartite: it included the imperial Crown, the colonies and the Indian nations. Today, Canada is an independent state, again represented by a tripartite system in the form of the federal government, provincial and territorial governments and Aboriginal peoples. In 1763 it was not considered necessary to specify the precise nature of the relationship between Indian nations and the Crown. It was self-evidently one of mutual respect and mutual recognition. The Supreme Court of Canada has reviewed the nature of relations between the Crown and Indian nations during this period in Canadian history, concluding that for the British it was "good policy to maintain relations with them very close to those maintained between sovereign nations."18 The Royal Proclamation of 1763 provides the first model of that early imperial tripartite relationship. It was not quite one of complete equality between sovereign nations, because by then many tribal nations had been greatly weakened and were no longer fully autonomous. By the same token, however, it was not one of subjugation, since relations in the most important areas were conducted on a nation-to-nation basis. In short, it was and remains a unique relationship that is well captured in the following passage from the Proclamation: And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds... ...if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, the same shall be purchased only for Us, in Our Name, at some publick Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Commander in Chief of Our Colonies respectively...19 The paradoxical aspect of this model of relations revolves around the relationship of the Crown and tribal nations to Indian lands. The reference is to nations and tribes connected to and living under Crown protection on lands within its dominions and territories. But at the same time, the Crown cannot simply appropriate these lands; it must purchase them from the nation or tribe on a nation-to-nation basis. This original paradox raises the dilemma of the Crown and Indian nations simultaneously having sovereign rights to the same land. Through sharing the land, they shared sovereignty in a way that was unique to the situation in North America. There were no precedents for this singular relationship. In retrospect we now recognize it as the

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prototype for the later federal model that emerged first in the United States and then in Canada: governments sharing the same territory, but with different or shared powers in relation to that territory. In this relationship, Indian nations agreed to share the land with the Crown. The Crown agreed that a portion of those lands would be set aside for exclusive Indian occupation and to protect the overall relationship. In a sense, this was the original confederal bargain between them as partners. In the United States the bargain would be recast by the new republic in slightly different terms. Indian nations were not part of the United States, yet at the same time they were in a political relationship with the United States. This is the familiar 'domestic dependent nations' formula — itself a paradoxical statement — that has permitted American Indian tribes to continue, in the face of enormous centrifugal pressures, to assert their nation status up to present times.20 In Canada, however, Crown/Indian relations took a somewhat different course. For several generations the nation status of tribes in the British possessions was respected by imperial authorities and by the colonies. At a certain point, however, this carefully constructed and maintained model of imperial federalism began to come apart. Through a series of culturally based misunderstandings and the emergence of a radically different interpretation of the protective relationship among British and Canadian policy makers, a fundamental shift occurred that has altered the balance between the original partners in Confederation. Ethnocentric notions based on the claimed cultural superiority of the settler society prodded imperial and colonial officials to reinterpret the original bargain between the Crown and tribal nations. More than a century of official measures aimed first at civilizing and then assimilating Indian people caused the original partnership to become completely unbalanced. This led to cultural confrontation between Canadian officials and Indian people that has evolved into political confrontation and legal challenges by Indian representatives to the assumption of political, social and cultural jurisdiction over Indian communities in Canada. The Indian Act reflects the imbalance in the relationship. Putting the relationship back into balance is one of the major goals of this Commission.

3. Indian Policy: Protection, Civilization and Assimilation The early history of tripartite relations between Indian nations and the Crown in British North America during the stage of displacement can be described in terms of three phases in which first protection, then civilization, and finally assimilation were the transcendant policy goals. Although they may appear distinct from each other, in fact, these policy goals merge easily. They evolved slowly and almost imperceptibly from each other through the nineteenth century when the philosophical foundations of the Indian Act were being laid. For example, the measured separation between tribal nations and the settler society implied by Crown protection of tribal lands and Indian autonomy merged almost effortlessly for non-Indian officials into the related goal of 'civilizing' the Indians. The

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transition was aided by the fact that Indian people often requested or consented to official assistance in acquiring tools to adapt to the growing presence of non-Indian settlements around them. Mission schools, training in farming and trades, and instruction in Christianity were the hallmarks of this stage in the relationship. More ominously, however, new civilian Indian department officials often came to the job with attitudes marked by emerging notions of European racial and cultural superiority. They lacked the inherent respect for Indian social and political culture that had been a feature of the eighteenth century, when there was greater equality in the overall relationship between the Crown and First Nations. For these officials, the transition to a policy of encouraging and even forcing Indian people to assimilate into colonial and later Canadian society was a short step from the civilizing policy. Often the churches and humanitarian societies — both of which called for measures to alleviate the often desperately poor conditions of Indian people and communities — assisted this transition, seeing in it the only way to save Indian peoples from what appeared at the time to be their eventual and inevitable destruction as separate entities by the social and economic forces of mainstream colonial society. In all three phases, humanitarians, church and government officials saw themselves as supporting the original and primary policy of protection. The goal remained; only the means had changed. The measured separation desired and called for by Indian people themselves eventually came to be seen by government officials as ultimately harmful to Indian interests. To them, it simply preserved Indian people in a state of social inferiority. Indian protests against assimilative policies were interpreted as proof of their racial and cultural inferiority: they simply did not know what was good for them. The relative strength of colonial society in comparison to the increasing weakness of Indian communities was sufficient proof to Indian department officials of the inherent rightness of their perspective and ample justification for the paternalistic approach they had taken over the years. Thus, in the years following the Royal Proclamation of 1763, the Crown undertaking to protect Indians and their lands from settler encroachment was an evident and paramount characteristic of the relationship between them in Upper and Lower Canada. It was somewhat different in the Maritimes, where the Mi'kmaq and Maliseet nations, former enemies of the British Crown, were not treated with the same respect by British authorities after 1763. Nonetheless, in the Maritimes, as in Upper and Lower Canada, reserves were created to further the Crown goal of protection. Indian people and their non-Aboriginal supporters were forced to petition the authorities to return to them small tracts of their own lands in the Maritimes, whereas reserves were freely offered by the British authorities elsewhere.21 Reserves were not new. They had been a feature of relations between the French and their Indian allies, and the practice of creating them was carried over by the British in what is now southern Ontario.22 In this respect, the goal of maintaining a line between Indian and colonial lands was upheld. Overall responsibility for relations with Indians was lodged in

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the imperial Indian department, first created in 1755 as a branch of the military. But whether reserves were established or not, in all cases the clear and underlying goal of Crown/Indian relations was to secure and maintain the commercial and military alliances with tribal nations upon which the welfare of British North America still depended. With the massive influx of settlers in the late eighteenth and early nineteenth century and the need to find additional land for settlement, the reserve policy assumed new importance. At the same time, with the establishment of peace between the United States and the British colonies, the need for Indian peoples as military allies waned. Tribal nations also became more and more impoverished as the game and furbearing animals on which they depended for sustenance and commerce disappeared. Traditional lifeways became more difficult to maintain. Many tribes and bands came to rely on the symbolic payments and gifts that accompanied formal commemorations of treaty signings and on treaty annuity payments. The result was a weakening of their relative bargaining position with the British authorities and a growing dependence upon them. At the same time, new ideas were sweeping the British Empire. Missionaries and humanitarians, appalled at the deterioration in living conditions in areas where settlements were devastating traditional Aboriginal cultures and economies, called for action to save them. But imperial and colonial officials, imbued with notions of racial superiority, preferred new policies to assist Indian people to evolve on a European model and to become 'civilized' farmers and tradesmen. Financial pressures coincided with these trends as the colonial office in London questioned the expense of continuing to maintain Indian nations as military allies. In the face of these pressures, the first formal inquiry into Indian conditions in Canada was undertaken by Major General H.C. Darling, military secretary to the governor general. His 1828 report became the foundation of the civilization program, outlining a formal policy based on establishing Indians in fixed locations where they could be educated, converted to Christianity and transformed into farmers.23 The goal of this policy was to enable Indian communities to become more economically self-sufficient. This approach was influenced by an experiment by the Methodist Church with the Mississauga of the Credit River in southern Ontario. The latter had written to the lieutenant governor of Upper Canada in 1827, thanking him for his support and expressing their happiness that "flows from a settled life, industry and a steady adherence to the great commands of the great Spirit" and their hope to "arise out of the ruins of our great fall, and become a people...like our neighbours the white people".24 Thus, the civilizing policy began to go forward with the establishment of additional reserves in southern Ontario, in the hope that the early success being achieved among the Mississauga would be repeated elsewhere. There was no question, however, of imposing this policy on Indian communities. Indian self-government was to be fully respected by seeking the consent of chiefs before introducing any of the proposed civilization measures. As the letter from the Mississauga indicates, at first these measures were often welcomed by Indian nations as they prepared for the future.

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While this experiment was going on, another entirely different approach was being taken by the lieutenant governor of Upper Canada, Sir Francis Bond Head. After visiting every Indian community where civilizing efforts were being conducted, he concluded that Indians could not be civilized and were doomed as a race to die out over time. He proposed to relocate Indians to Manitoulin Island, where they could be protected in a traditional lifestyle until their inevitable disappearance as separate peoples. To this end he persuaded some bands to surrender their Aboriginal title to large areas of reserved lands in southern Ontario in exchange for lands on Manitoulin Island. Church groups working to convert and civilize Indians at that time were angered by his approach, since it ran counter to the liberal and philanthropic ideas then coming into vogue in Great Britain and the colonies. Thus, in the 1830s the overlap between these policy approaches saw two distinct initiatives in operation at the same time, each favouring a different approach to protecting Indians. Darling's was to help them adjust to the demands of mainstream colonial society through measures designed to augment and eventually supplant their traditional cultures. Bond Head's was the opposite: to isolate them so they could preserve their traditional lifeways a little longer. Each one seemed to assume that, left to their own devices, Indians were inherently unable to respond to the new economic and social climate of British North America. By the end of the decade, both experiments had failed. In the case of Darling's civilization program, Indians were not ready to abandon their traditional ways so quickly or completely. It also appears that the various church groups bickered among themselves, thereby hindering the effectiveness of the program. Bond Head's approach faltered because Indians became increasingly wary of surrendering their rights to their traditional lands. The removal policy had also aroused the opposition of philanthropic and humanitarian elements in British and colonial society, which were genuinely concerned about declining material and social conditions among Indian people. During this period several other official inquiries were commissioned to investigate what was increasingly becoming known as the 'Indian problem'. Each one repudiated the approach taken by Bond Head and supported the civilization policy. Only one is known to have consulted extensively with Indians regarding their views, and then only on the issue of discontinuing the system of 'presents', designed to reinforce the treaty relationship.25 In fact, it was not until after the Second World War that any systematic effort was made to seek the views of Indian people on policy issues that affected them. In support of the policy of protection, legislation was passed in 1839 in Upper Canada expressly declaring Indian reserves to be Crown lands and therefore off-limits to settlers.26 By the 1840s imperial and colonial officials were impatient with what they saw as slow progress in civilizing Indians. Although imperial financial concerns were present, an element of cultural superiority and intolerance was colouring official attitudes more and more. Something similar was occurring in the United States. Alexis de Tocqueville, a French writer travelling in the United States, described the generally negative feelings

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and attitudes of the settlers toward Indians in terms that applied to the British colonies as well: With their resources and their knowledge, the Europeans have made no delay in appropriating most of the advantages the natives derived from their possession of the soil; they have settled among them, having taken over the land or bought it cheaply, and have ruined the Indians by a competition which the latter were in no position to face. Isolated within their own country, the Indians have come to form a little colony of unwelcome foreigners in the midst of a numerous and dominating people.27 In the United States the Indian policy was similar to that advocated by Bond Head: removal of entire tribes to more isolated locations west of the Mississippi River where they could pursue their own cultures and develop their own political institutions according to their aspirations and capacities. In Canada, yet another commission was established to study the problem. Its report would set Canadian Indian policy on an entirely different path from that taken in the United States. In most important respects, official Indian policy in Canada is still on the path set by that commission.

4. Civilization to Assimilation: Indian Policy Formulated Established by Governor General Sir Charles Bagot, the commission reported in 1844.28 Generally, the commissioners found that there were serious problems with squatters on Indian lands, poor records of land sales or leases, and inept official administration of band funds; that the wildlife necessary for subsistence was fast disappearing from settled areas; and that Indians generally were suffering from alcohol abuse. To bring order to the development of Indian policy and to end the varying practices in the different colonies, centralization of control over all Indian matters was recommended. This recommendation later bore fruit, first in 1860 with the passage of the Indian Lands Act. It transferred authority for Indians and Indian lands to a single official of the united Province of Canada, making him chief superintendent of Indian affairs.29 When the Province of Canada united with Nova Scotia and New Brunswick in 1867 to form the Dominion of Canada, section 91(24) of the Constitution Act, 1867 gave legislative authority over Indians and lands reserved for the Indians to Parliament and removed it from the provincial legislatures. To combat settler encroachments and trespassing, the Bagot Commission recommended that reserves be properly surveyed and illegal timber cutting eliminated by a timber licensing system. Indians were to be encouraged to take up farming and other trades and were to be given the training and tools required for this purpose in lieu of treaty gifts and payments. Education was considered key to the entire enterprise; thus boarding schools were recommended as a way of countering the effects on young Indians of exposure to the more traditional Indian values of their parents. Christianity was to be fostered. The commissioners were concerned that Crown protection of Indian land was contrary to the goal of full citizenship in mainstream society. In their view, maintaining a line

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between Indian and colonial lands kept Indians sheltered from various aspects of colonial life such as voting (only landowners could vote at that time), property taxation, and liability to have one's property seized in the event of non-payment of debt. The Bagot Commission therefore recommended that Indians be encouraged to adopt individual ownership of plots of land under a special Indian land registry system. They were to be encouraged to buy and sell their plots of land among themselves as a way of learning more about the non-Indian land tenure system and to promote a spirit of free enterprise. However, the reserve system was not to be eliminated all at once — the transition was to be gradual, and in the meantime, no sales of Indian land to non-Indians were to be permitted. Crown financial obligations were to be reduced by taking a census of all Indians living in Upper Canada. This would enable officials to prepare band lists. No Indian could be added to a band list without official approval, and only persons listed as band members would be entitled to treaty payments. It was recommended that the following classes of persons be ineligible to receive these payments: all persons of mixed Indian and nonIndian blood who had not been adopted by the band; all Indian women who married nonIndian men and their children; and all Indian children who had been educated in industrial schools. These recommendations were adopted in one form or another in the years after the Bagot Commission issued its report and formed the heart of the Indian status, band membership and enfranchisement provisions of the Indian Act. The commissioners were also opposed in principle to the idea of a separate imperial Indian department, believing that it tended to breed dependency. However, until it could be dispensed with, it was recommended that the two branches of the existing Indian department be reunited under an official who would be located in the seat of government where broader social policy was made. This recommendation ultimately led to the creation of a more or less permanent department of government to deal exclusively with Indians and Indian lands. Today it is called the Department of Indian Affairs and Northern Development and is still located in the seat of government in the Ottawa-Hull region. Initially, Indians were generally in favour of the Bagot Commission's proposals on education, since they still wished to co-exist with the new settler society and knew that education was the key to their children's futures. However, once the assimilationist flavour of the program became evident, opposition quickly increased. They also opposed the restrictions on eligibility to receive treaty payments. This was viewed as interference with internal band matters and as a way of ultimately reducing all payments. There was, in addition, strong resistance to the notion of individual allotment of reserve lands, as many feared — rightly — that this would lead to the loss of these lands and to the gradual destruction of the reserve land base. Although it stopped short of endorsing forced assimilation, which would come later, there can be no question that the Bagot Commission recommended a far-reaching and ambitious program that is still in operation today. Many of the current provisions in the Indian Act can trace their origins to these early recommendations.

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In any event, land legislation was passed shortly after, in 1850, in Upper and Lower Canada to put some of these recommendations into effect by dealing with the threat to Indian lands posed by settler encroachments.30 It became an offence to deal directly with Indians for their lands, trespass on Indian lands was formally forbidden, and Indian lands were made exempt from taxation and seizure for debts. Similar provisions continue in the current Indian Act and are generally valued by Indian people, who see them as a bulwark against erosion of the reserve land base. However, in that early legislation appears the first clear indication of the marked differences in the philosophy and perspectives of Indians and non-Indian officials. This pattern, which would be repeated throughout Canadian history right up to the present, has involved building on Indian concerns and carrying remedial measures much further than desired by Indians themselves. For example, by 1850 the presence of substantial numbers of non-Aboriginal men on Indian reserves had apparently begun to alarm some tribal and band governments. Although married to Indian women and hence part of the reserve community, these men brought with them ideas and perspectives that appeared to threaten traditional Indian culture, particularly as it affected land use. Both 1850 land protection acts defined the term 'Indian', for purposes of residency on the protected reserve land base, for the first time in Canadian history, introducing the notion of race as the determining factor. Only a person of Indian blood or someone married to a person of Indian blood would be considered an Indian. In response to Indian concerns, that definition was narrowed in amendments to the Lower Canada legislation one year later, specifically to exclude from the definition all nonAboriginal men married to Indian women.31 However, non-Aboriginal women married to Indian men were still considered Indian in law. Thus, for the first time Indian status and residency rights began to be associated with the male line. Subsequent versions of the definition of 'Indian' went back and forth on the question of whether non-Indian men could acquire Indian status through marriage. By the time the first comprehensive Indian Act was enacted in 1876, it had become accepted policy that non-Indian men could not acquire Indian status through marriage.32 The next important official inquiry into the conditions of Indians in the colonies was that of the Pennefather Commission in 1858.33 Established in response to the continuing emphasis on financial retrenchment by imperial authorities, its mandate was to report upon "the best means of securing the future progress and civilization of the Indian tribes" and "the best mode of so managing the Indian property as to secure its full benefit to the Indians, without impeding the settlement of the country."34 Commissioners found generally that the relationship between the Crown and Indian nations had changed a great deal over the past few years as a result of the civilization policy, with Indians slowly being weaned from dependence on the Crown. Although commissioners were optimistic about the possibility that Indians might be "reclaimed from their savage state" over time, they felt themselves forced to "confess that any hopes of raising the Indians as a body to the social or political level of their white neighbours, is yet but a glimmer and distant spark."35 Slow progress in the civilizing program was

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attributed to the "apathy" and "unsettled habits" of Indians rather than to any shortcomings in the civilization policy or its administration.36 Ultimately, the Pennefather Commission recommended moves toward a policy of complete assimilation of Indians into colonial society. It called, for example, for direct allotment of lands to individual Indians instead of creating communally held reserves. This policy was carried out later in Manitoba in the case of the Métis people, where individual plots of land were awarded instead of collective Métis lands.37 The commission also proposed collecting smaller bands in a single reserve, consolidating the various pieces of Indian legislation, legislating the dismantling of tribal structures, and eventually abolishing the Indian department once the civilizing efforts had borne fruit. As we will see, these recommendations were acted upon in one way or another over the years.

5. The GRADUAL CIVILIZATION ACT:Assimilating Civilized Indians Before the final report of the Pennefather Commission was published, the Gradual Civilization Act was passed in 1857.38 It applied to both Canadas and was one of the most significant events in the evolution of Canadian Indian policy. Its premise was that by eventually removing all legal distinctions between Indians and non-Indians through the process of enfranchisement, it would be possible in time to absorb Indian people fully into colonial society. Enfranchisement, which meant freedom from the protected status associated with being an Indian, was seen as a privilege. There was thus a penalty of six months' imprisonment for any Indian falsely representing himself as enfranchised. Only Indian men could seek enfranchisement. They had to be over 21, able to read and write either English or French, be reasonably well educated, free of debt, and of good moral character as determined by a commission of non-Indian examiners. For those unable to meet these criteria, a three-year qualifying period was allowed to permit them to acquire these attributes. As an encouragement to abandon Indian status, an enfranchised Indian would receive individual possession of up to 50 acres of land within the reserve and his per capita share in the principal of the treaty annuities and other band moneys. An enfranchised man did not own the 50 acres of land allotted to him, however. He would hold the land as a life estate only and it would pass to his children in fee simple ownership upon his death. This meant that it was inalienable by him, but could be disposed of by his children once they had received it following his death. If he died without children, his wife would have a life estate in the land but upon her death it would revert to the Crown — not to the band. Thus, it would no longer be reserve land, thereby reducing the overall amount of protected land for the exclusive use and occupation of the reserve community. Where an enfranchised man died leaving children, his wife did not inherit the land. She would have a life estate like his and it would pass to the children of the marriage once she died. Enfranchisement was to be fully voluntary for the man seeking it. However, an enfranchised man's wife and children would automatically be enfranchised with him

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regardless of their wishes, and would equally receive their shares of band annuities and moneys. They could not receive a share of reserve lands. The provisions for voluntary enfranchisement remained virtually unchanged through successive acts and amendments, although some elements were modified over the years. Other developments in enfranchisement policy in subsequent legislation, such as making enfranchisement involuntary, will be described later in the discussion of the Indian Act. The voluntary enfranchisement policy was a failure. Only one Indian, Elias Hill, was enfranchised between 1857 and the passage of the Indian Act in 1876. His story was told in Chapter 6. Indians protested the provisions of the Gradual Civilization Act and petitioned for its repeal. In addition, Indian bands individually refused to fund schools whose goals were assimilative, refused to participate in the annual band census conducted by colonial officials, and even refused to permit their reserves to be surveyed for purposes of the 50-acre allotment that was to be the incentive for enfranchisement. The passage of the Gradual Civilization Act marked a watershed in the long history of Indian policy making in Canada. In many ways, the act and the response it generated were precursors of the 1969 white paper termination policy in terms of souring Indian/government relations and engendering mutual suspicion. The impact of this legislation was profoundly negative in many ways. The new policy created an immediate political crisis in colonial/Indian relations in Canada. The formerly progressive and co-operative relationship between band councils and missionaries and humanitarian Indian agents broke down in acrimony and political action by Indians to see the act repealed. Indian people's refusal to comply and the government's refusal to rescind the policy showed that the nation-to-nation approach had been abandoned almost completely on the Crown side. Although it was reflected in subsequently negotiated treaties and land claims agreements, the Crown would not formally acknowledge the nation-to-nation relationship as an explicit policy goal again until the 1980s. By virtually abandoning the Crown promise, implied by the Royal Proclamation of 1763 and the treaty process, to respect tribal political autonomy, the Gradual Civilization Act marked a clear change in Indian policy, since civilization in this context really meant the piecemeal eradication of Indian communities through enfranchisement. In the same way, it departed from the related principle of Crown protection of the reserve land base. Reserve lands could be reduced in size gradually without a public and formal surrender to which the band as a whole had to agree. No longer would reserve land be controlled exclusively by tribal governments. The Gradual Civilization Act was also a further step in the direction of government control of the process of deciding who was or was not an Indian. While the 1850 Lower Canada land act had begun this process by defining 'Indians' for reserve residency purposes, this new legislation set in motion the enfranchisement mechanism, through which additional persons of Indian descent and culture could be removed from Indian

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status and band membership. In these two laws, therefore, can be seen the beginning of the process of replacing the natural, community-based and self-identification approach to determining group membership with a purely legal approach controlled by nonAboriginal government officials. Moreover, the Gradual Civilization Act continued and reinforced the sexism of the definition of Indian in the Lower Canada land act, since enfranchisement of a man automatically enfranchised his wife and children. The consequences for the wife could be devastating, since she not only lost her connection to her community, but also lost the right to regain it except by marrying another man with Indian status. Finally, the tone and goals of the Gradual Civilization Act, especially the enfranchisement provisions, which asserted the superiority of colonial culture and values, also set in motion a process of devaluing and undermining Indian cultural identity. Only Indians who renounced their communities, cultures and languages could gain the respect of colonial and later Canadian society. In this respect it was the beginning of a psychological assault on Indian identity that would be escalated by the later Indian Act prohibitions on other cultural practices such as traditional dances and costumes and by the residential school policy.

6. End of the Tripartite Imperial System Between the passage of the Gradual Civilization Act and Confederation several events and legislative measures cemented the change in imperial Indian policy. They included the ending of treaty presents to bands (the symbols of the alliance between the Crown and Indian nations) in 1858 and the passage of the Indian Lands Act in 1860. Although this legislation formalized the procedure for surrendering Indian land in terms reflective of the procedure set out in the Royal Proclamation of 1763, it also transferred authority for Indians and Indian lands to an official responsible to the colonial legislature, thus breaking the direct tie between Indian nations and the British Crown upon which the nation-to-nation relationship rested. This was a clear departure from the Crown/colony/Aboriginal tripartite system described earlier. The Indian Lands Act legislation replaced it with another model of direct colonial/Aboriginal relations. The withdrawal of the British Crown as the impartial arbiter and mediator between the weakened tribal nations and the ascendant and landhungry colonies was a step that would have important consequences for Indians in the future. Indians in the Canadas who were aware of the transfer of responsibility for Indian affairs from the imperial Crown to the Province of Canada generally opposed it, preferring to manage their own affairs than to be managed by the colonial government, which they distrusted and feared: The Imperial Govt. is unwilling to find us officers as Formerly and withdraw wholly its protection we deem that there is a sufficient intelligence in our midst to manage our own affairs.39

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The British parliamentary select committee looking into Aboriginal issues had warned in its 1837 report against entrusting the management of Aboriginal relations to the local legislatures in the British colonies, fearing a conflict of interest between the duty of protection and that of responding to the desires of their electors: The protection of the Aborigines...is not a trust which could conveniently be confined to the local Legislatures. In proportion as those bodies are qualified for the right discharge of their functions, they will be unfit for the performance of this office, for a local legislature, if properly constituted, should partake largely in the interest, and represent the feelings of settled opinions of the great mass of people for whom they act. But the settlers in almost every Colony, having either disputes to adjust with the native Tribes, or claims to urge against them, the Representative body is virtually a party, and, therefore, ought not to be the judge in such controversies; ...we therefore advise, that, as far as possible, the Aborigines be withdrawn from its control.40 The government ignored this advice. From that point on, the authorities entrusted with managing relations with Indian nations in Canada could no longer necessarily be described as disinterested. They were 'local' in a political as well as a geographic sense. At Confederation, Parliament was given law-making powers over "Indians, and Lands reserved for the Indians" in section 91(24) of what was then referred to as the British North America Act. Indian nations as such were not recognized in this new tripartite Crown/dominion/provincial scheme. From a certain perspective, Indian nations were outside and inside Confederation at the same time. They were outside in the sense that they were still self-governing, but inside to the extent individual Indians cared to renounce their collective identity and be absorbed into the mainstream body politic. They could in this sense emigrate to Canada without having to leave their own country. At Confederation, the secretary of state became the superintendent general of Indian affairs and, in 1868, acquired control over Indian lands and funds through federal legislation consolidating much of the previous decade's land protection measures. The definition of 'Indian' was finalized on a patrilineal model, excluding non-Indian men who married Indian women, but including non-Indian women who married Indian men. Thus the Lower Canada rule of 1851 became national policy.41

7. The GRADUAL ENFRANCHISEMENT ACT: Responsible Band Government Two years after Confederation the Gradual Enfranchisement Act marked the formal adoption by Parliament of the goal of assimilation.42 It repeated the earlier voluntary enfranchisement provisions and introduced stronger measures that would psychologically prepare Indians for the eventual replacement of their traditional cultures and their absorption into Canadian society.

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With these provisions Parliament entered a new and definitive phase regarding Indian policy, apparently determined to recast Indians in a mould that would hasten the assimilation process. The earlier Gradual Civilization Act had interfered only with tribal land holding patterns. The Gradual Enfranchisement Act, on the other hand, permitted interference with tribal self-government itself. These measures were taken in response to the impatience of government officials with slow progress in civilization and enfranchisement efforts. Officials were united in pointing to the opposition of traditional Indian governments as the key impediment to achieving their policy goals. This new act, it was hoped, would allow those traditional governments to be undermined and eventually eliminated. The primary means of doing this was through the power of the superintendent general of Indian affairs to force bands to adopt a municipal-style 'responsible' government in place of what the deputy superintendent general of Indian affairs referred to as their "irresponsible" traditional governance systems.43 This new system required that all chiefs and councillors be elected for three-year terms, with election terms and conditions to be determined by the superintendent general as he saw fit. Elected chiefs could be deposed by federal authorities for "dishonesty, intemperance or immorality." None of the terms was defined, and the application of these criteria for dismissal was left to the discretion of the Indian affairs officials upon receiving a report from the local Indian agent. Only Indian men were to be allowed to vote in band elections, thereby effectively removing Indian women from band political life. Indian women were not given the right to vote in band elections until the 1951 Indian Act.44 The authority accorded the elective band councils was over relatively minor matters: public health; order and decorum at public assemblies; repression of "intemperance and profligacy"; preventing trespass by cattle; maintaining roads, bridges, ditches and fences; constructing and repairing schools and other public buildings; and establishing pounds and appointing pound keepers. There was no power to enforce this authority. Thus, under this governance regime Indian governments were to be left with mere shadows of their former self-governing powers. Moreover, even in these limited areas their laws would be ineffective if they were not confirmed by the governor in council (the cabinet). This restricted list of powers later became the basis for the powers accorded band councils under the later Indian Act. Although referred to in the legislation as the "Tribe in Council", it is clear that the elective council system was not at all tribal in the larger sense of the nations or tribes referred to in the Royal Proclamation of 1763. It was restricted to individual reserves and to the inhabitants of individual reserves — a group that would be described in the later Indian Act of 1876 as a band. There was simply no provision for traditional groupings going beyond the individual band level. In fact, the goal of the measures was specifically to undermine nation-level governance systems and the broader nation-level associations of Indians more generally.45

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Traditional Indian patterns of land tenure were also affected. On reserves that had already been sub-divided into lots, a system of individual property holding could be instituted by requiring that residents obtain a 'location ticket' from the superintendent general. Otherwise, reserve residents would not be considered to be lawfully holding their individual plots of land. The intention was to establish a bond between Indians and their individual allotments of property in order to break down communal property systems and to inculcate attitudes similar to those prevailing in mainstream Canadian society. This policy may have been inspired by similar efforts in the United States, where individual allotments had always been used as a method of terminating tribal existence, particularly in the period between 1887 and the early part of the twentieth century.46 Individual land allotments were also used when lands were set aside for the Métis people of Manitoba in 1871.47 The Gradual Enfranchisement Act also provided for the first time that an Indian woman who married a non-Indian would lose Indian status and band membership, as would any children of that marriage. In a similar way, any Indian woman who married an Indian from another band and any children from that marriage would become members of the husband's band. As discussed in Volume 4, Chapter 2, which examines Aboriginal women's perspectives, the sexism that had been bubbling beneath the surface of Indian policy was now apparent and would become an element of the Indian Act when it was passed a few years later. The manifest unfairness of these provisions led to Indian complaints. For example, the Grand Council of Ontario and Quebec Indians wanted the provision concerning marrying out amended so that "Indian women may have the privilege of marrying when and whom they please without subjecting themselves to exclusion or expulsion from the tribe."48 Originally designed for the more 'advanced' Indians of Ontario and Quebec, this legislation was later extended to Manitoba and British Columbia and eventually to all of Canada. The band and band council system of the Gradual Enfranchisement Act and later the Indian Act and all it entailed were thus made uniform throughout Canada.

8. The INDIAN ACT and Indians: Children of the State In the 1870s, Canada grew by the addition of Manitoba, British Columbia and Prince Edward Island as provinces, and by the conclusion of Treaties 1 to 7 with the Indian nations and tribes of western Canada. Treaties 8 to 11 would be concluded in the west and north between 1899 and 1921. These important events in our national history were discussed in more detail in Chapter 6 of this volume. In 1874 new federal legislation extended the existing Indian laws to Manitoba and British Columbia.49 That legislation also widened earlier prohibitions on selling alcohol to Indians, making it an offence punishable by imprisonment for an Indian to be found "in a state of intoxication" and with further punishment possible for refusal by the Indian accused of drunkenness to name the supplier of the alcohol. Earlier anti-alcohol provisions had been passed expressly to protect Indians from what was then the scourge

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of their communities; they had been directed only at the sellers, however. The 1874 prohibition was the beginning of the creation of special offences applicable only to Indians. In the midst of the treaty-making process going on in western Canada, the first Indian Act as such was passed in 1876 as a consolidation of previous Indian legislation.50 Indian policy was now firmly fixed on a national foundation based unashamedly on the notion that Indian cultures and societies were clearly inferior to settler society. The annual report of the department of the interior for the year 1876 expressed the prevailing philosophy that Indians were children of the state: Our Indian legislation generally rests on the principle, that the aborigines are to be kept in a condition of tutelage and treated as wards or children of the State. ...the true interests of the aborigines and of the State alike require that every effort should be made to aid the Red man in lifting himself out of his condition of tutelage and dependence, and that is clearly our wisdom and our duty, through education and every other means, to prepare him for a higher civilization by encouraging him to assume the privileges and responsibilities of full citizenship.51 The transition from tribal nation in the tripartite imperial system to legal incompetent in the bilateral federal/provincial system was now complete. While protection remained a policy goal, it was no longer collective Indian tribal autonomy that was protected: it was the individual Indian recast as a dependent ward — in effect, the child of the state. Moreover, protection no longer meant maintaining a more or less permanent line between Indian lands and the settler society; it meant the very opposite. By reducing the cultural distance through civilizing and assimilating measures that would culminate in enfranchisement of Indians and reduction of the reserve land base in 50-acre chunks, it was hoped Indian lands would in this piecemeal fashion soon lose their protected status and become part of the provincial land regime. In keeping with the clear policy of assimilation, the Indian Act made no reference to the treaties already in existence or to those being negotiated at the time it was passed. The absence of any significant mention of the treaty relationship continues in the current version of the Indian Act.52 It is almost as if Canada deliberately allowed itself to forget the principal constitutional mechanism by which the nation status of Indian communities is recognized in domestic law. The omission is curious and speaks volumes about official intentions with regard to Indian autonomy after 1876. In short, it may give rise to an inference that Canadian officials did not attach great importance to the nation-to-nation nature of the treaty relationship. The Indian Act of 1876 created an Indian legislative framework that has endured to the present day in essentially the terms in which it was originally drafted. Control over Indian political structures, land holding patterns, and resource and economic development gave Parliament everything it appeared to need to complete the unfinished policies inherited from its colonial predecessors. Indian policy was now clear and was expressed in the alternative by the minister of the interior, David Laird, when the draft act was introduced

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in Parliament: "[t]he Indians must either be treated as minors or as white men."53 There was to be no middle road. In general terms the 1876 act offered little that was different from what had gone before. It was much more complex and detailed, however, covering almost every important aspect of the daily lives of Indians on reserve. To facilitate the job of separating Indians from those who were not to enjoy the protection of Indian status and band membership, new definitions were provided to cover terms such as 'band' and 'reserve' in terms reflective of the policies already described. The responsible cabinet minister was referred to in the legislation as the superintendent general of Indian affairs — a title first applied in the earlier legislation by which the new Province of Canada acquired control of Indian matters from the imperial Crown in 1860. In practice, this minister always had another, more politically significant portfolio. Thus, effective management of Indian affairs was left to the deputy superintendent general, an official who would be described today as a deputy minister. As with earlier acts in relation to Indians, in the new Indian Act an Indian had to be someone "of Indian blood" or, in the case of mixed marriages, a non-Indian woman married to an Indian man. Indian women who married non-Indian men were not recognized as Indian. Thus, the exclusionary and sexist provisions described earlier found themselves incorporated into this first Indian Act in one form or another. In this same vein, Indian women were excluded from taking part in band land surrender decisions, since the new act restricted the procedure to "male members of the band of the full age of twenty-one years".54 Not until 1951 would Indian women be permitted to participate in this most important band process. Most of the protective features of earlier legislation were brought forward and made clear: no one other than an "Indian of the band" could live on or use reserve lands without licence from the superintendent general; no federal or provincial taxation on real and personal property was permitted on a reserve; no liens under provincial law could be placed on Indian property and no Indian property could be seized for debt. All these features of the original act are still present in the current version and are credited by most Indian people with preserving the reserve land base from gradual erosion. Former president of the National Indian Brotherhood, George Manuel, supported this assessment, referring to this aspect of the Indian Act as follows: The main value of the Act from our point of view was that it was the one legal protection of our lands, and spelled out the basic rights and privileges of living on a reserve. But it also included a price tag.55 That price tag is discussed in more detail in the context of the many measures subsequently passed to increase federal government control and reduce the political and cultural autonomy of Indians under the Indian Act regime in the years between 1876 and 1951.

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The 1876 Indian Act also carried the three-year elective band council system over from the Gradual Enfranchisement Act almost unchanged. Eventually, the term of office would be shortened to its current length of two years. The 1876 act repeated the list of band council by-law making powers in the earlier Gradual Enfranchisement Act (with one new power, that of allocating reserve land56), but they were still subject to governor in council confirmation. As with that earlier act, there was no power for a band to enforce these laws. To foster individualism, the superintendent general of Indian affairs could now order that a reserve be surveyed and divided into lots and then require that band members obtain location tickets for individual plots of land. The voluntary enfranchisement provisions continued as described earlier, with two significant changes. First, an enfranchised man would receive his 50 acres in fee simple ownership at the end of the probationary period, thus making the land freely alienable right away. This provision was later changed so that no alienation could take place without the approval of the governor in council. In addition, Indians who earned a university degree or who became doctors, lawyers or clergymen were enfranchised automatically whether or not they wished to be enfranchised. Although the Indian Act of 1876 applied throughout Canada, the bands of the west were excluded from many provisions (such as the elective band council system) because they were seen as insufficiently 'advanced' for these measures. They were also in the process of entering into Treaties 1 to 7 and still had sufficient military strength that it might have been unwise to attempt to subject them to federal legislation of this nature. Thus, where a western tribe was not officially under the Indian Act (or the later Indian Advancement Act of 188457) and where a treaty had been entered into, the Indian affairs department allowed Indians to hold elections under the close supervision of the local Indian agent. In British Columbia the department often followed customary or traditional practice, while in the prairies the election practices were akin to appointments by the agent, since it was he who would usually initiate and control the entire procedure. In such cases, the agents would attempt to follow the Indian Act model, limiting terms to three years and otherwise ensuring that procedures similar to those followed in eastern Canada were adopted. Indians in those parts of Canada subject to the Indian Act band council system refused to adopt it unless it was imposed on them. They were aware if they did adopt the system, the superintendent general of Indian affairs would have full supervisory and veto power over governance decisions made by the band. They would also be forced to concern themselves with the minor matters set out in the restrictive list of powers. Only one band is known to have adopted the Indian Act elective system voluntarily at the time.58 The 1880 consolidated version of the act created a new department of Indian affairs to replace the Indian branch of the department of the interior to manage Indian administration and to see to the appointment of local Indian agents. The new department remained under the direction and control of the department of the interior, however, with

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the minister of the interior being superintendent general of Indian affairs. The 1880 act also introduced a new provision denying band governments the power to decide how moneys from the surrender and sale of their lands or other resources would be spent. The governor in council thereby took the power to decide how to manage Indian moneys and retains it to this day.59 The 1880 consolidation also attacked the traditional band governments. Thus, where the superintendent general imposed the elective system on a particular reserve, traditional tribal leaders would no longer be permitted to exercise any powers at all. They would have to stand for election under the new Indian Act procedures, despite tribal or band traditions to the contrary. The new department of Indian affairs, concerned with implementing the assimilation policy, in this way showed its determination to foreclose the possibility of opposition from traditional elements on reserves by using the elective system. Although band councils had by now been given the power to enforce their limited lawmaking powers, the 1880 version of the Indian Act required that proceedings be taken before a justice of the peace in the ordinary way before punishment was imposed. This meant that all proceedings regarding reserve events had to be taken off-reserve to a location where a justice of the peace could be found. Enforcement was all but impossible under these conditions.60 Aside from these few changes, the 1880 act reflected its 1876 predecessor and was the model on which all succeeding versions were erected. Although incremental amendments continued to be made to increase the power of the superintendent general and local Indian agents at the expense of bands and band councils, there was no real change in substance or approach for the next 70 years. The only major legislative addition was the passage of the Indian Advancement Act in 1884, which was designed for the more 'advanced' Indians in eastern Canada and modelled on town councils. The Indian Advancement Act gave the governor in council power to force bands to adopt its provisions regarding one-year elective band councils. There was to be no chief elected by the adult male electorate. Instead the elected band councillors would select one among them to be a chief councillor. For these purposes, the reserve was to be divided into electoral districts with a relatively equal number of voters. These provisions went further than those in the Indian Act by extending the powers of band councils into areas such as public health and by enabling band councils to tax the real property of all band members, whether held by location ticket or by an enfranchised former Indian who had received his 50 acres of reserve land. However, and somewhat paradoxically, if the goal was to educate Indians in mainstream self-government matters, the superintendent general (typically through the local Indian agent) acquired vastly enlarged powers to direct all aspects of elections and to call, participate in and adjourn band council meetings. Although a few bands came under this act voluntarily,61 most bands across Canada refused to adopt its provisions. The

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provisions of this act were later incorporated into the Indian Act and remained part of it until 1951.

9. The INDIAN ACT: Oppressive Measures From the passage of the first version of the Indian Act in 1876, amendments were brought forward almost every year in response to unanticipated problems being experienced by federal officials in implementing the civilization and assimilation policies to which they were committed. Many of these amendments eroded the protected status of reserve lands. Others enabled band governments to be brought under almost complete supervision and control. Yet others allowed almost every area of the daily life of Indians on reserves to be regulated or controlled in one way or another. Many of the provisions, such as the prohibition on alcohol consumption, were often supported by large segments of the reserve population. However, the overall effect was ultimately to subject reserves to the almost unfettered rule of federal bureaucrats. The Indian agent became an increasingly powerful influence on band social and political matters and on most reserves came to dominate all important aspects of daily band life. Most of these provisions and practices arose during the period between 1880 and the 1930s, when the assimilative thrust of Indian policy was at its peak. In many cases these measures were inspired by larger concerns about reducing federal government expenditures or supporting broader federal policies. For example, much of the push for Indians to adopt farming in western Canada was prompted by a more general concern that they become more self-sufficient, so as to reduce the drain on federal expenditures. Similarly, much of the impetus for leasing 'unused' portions of reserves to non-Indian farmers and compelling surrenders of what were referred to as 'surplus' reserve lands came from broader economic policies in support of the war effort between 1914 and 1918.62 Many Indian Act provisions and practices associated with them were known at the time to be arbitrary and unfair. Others have come to be seen in that light with the benefit of hindsight. Some of these provisions and practices merit examination here to impart the flavour of the Indian Act regime that has coloured so profoundly the experiences of several generations of Indian people and their leaders. Thus, what follows is a review of some of the most oppressive amendments and practices in the Indian Act and its administration in the period up to and beyond the 1951 revision.

9.1 Protection of the Reserve Land Base The Gradual Civilization Act first set the Crown on a course contrary to the procedures set out in the Royal Proclamation of 1763 by allowing protected reserve land to be converted to provincial lands upon the enfranchisement of an Indian. The various versions of the Indian Act over the years continued in the same vein, permitting the piecemeal undermining and erosion of the reserve land base in many ways.

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In 1894, for example, the superintendent general was given the power to lease reserve land held by physically disabled Indians, widows, orphans or others who could not cultivate their lands. Neither surrender nor band approval was required. In 1918 the superintendent general's power to lease reserve lands without a surrender was widened to include any uncultivated lands if the purpose of the lease was cultivation or grazing. This was intended to permit him to deal with the relatively large areas of western reserves that were not being cultivated intensively to support the war effort and was part of a broader national policy of encouraging Indian farmers to increase production and make reserve land available to non-Indian farmers, who had more machinery at their disposal and were therefore more efficient. When Arthur Meighen, the minister of the interior, was questioned in the House of Commons about the effect on Indians of having their best lands taken from them this way, he did not give a direct answer, replying instead that "we need [not] waste any time in sympathy for the Indian, for I am pretty sure his interests will be looked after by the Commissioner."63 Other reserve land use decisions were also removed from band council control. Thus, in 1894 bands lost the power to decide whether non-Indians could reside on or use reserve lands — the sole authority to do this was henceforth the superintendent general's. The next year further amendments permitted the superintendent general to lease reserve land held by location ticket if the individual locatee wished to do so. There was no requirement that the band consent, even where the superintendent general intended to lease the land to non-Indians. In 1919 the deputy superintendent general was given the power to grant location tickets to returning Indian war veterans, without band council consent, as part of the Soldier Settlement Act; the tickets were in lieu of the 160 acres of land promised veterans by the legislation. Although an intrusion into band autonomy and local self-government, this was less extreme than the scheme originally proposed — requiring Indian veterans to enfranchise if they wished to receive land under the Soldier Settlement Act. In the view of Deputy Superintendent Duncan Campbell Scott, this would have been a "fitting recognition of their services and...an object lesson to the other Indians".64 The issues surrounding implementation of that act with respect to Indian veterans are discussed in more detail in Chapter 12 of this volume. During this same period, great pressure was put on many bands to surrender portions of their reserves, usually so that the lands could then be sold to settlers or incorporated into adjacent municipalities. In response to an opposition question in 1906 regarding the 'unused' reserve lands in the west, interior minister Frank Oliver replied that the Indian affairs department was making efforts to acquire surrenders of 'surplus' Indian lands, noting in this regard that "if it becomes a question between the Indians and the whites, the interests of the whites will have to be provided for."65 To induce such surrenders, an amendment to the Indian Act was passed that same year allowing up to 50 per cent of the proceeds of a surrender and sale to be distributed immediately to band members.66 The new provision was put to immediate use in the case of the St. Peter's reserve in Manitoba. A long and tangled history of dealings regarding reserve lands had led to

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serious controversy and to a subsequent recommendation by an investigating judge that the Indians be encouraged to surrender the entire reserve in order to clear up the legal problems that had arisen over the years. Accordingly, a surrender was arranged with much difficulty in 1907, upon which the judge noted that the government had "readily and cheaply got out of a nasty tangle."67 The surrender was repudiated the next year, however, by a substantial number of band members on the basis of irregularities in the surrender process; they also asserted that they had been promised a sum of money by federal officials and had never received it.68 The inducements and other pressures for surrender were insufficient to satisfy the demand for additional Indian lands. Thus, public authorities were given the power to expropriate reserve land, without a surrender, in 1911. Any company, municipality or other authority with statutory expropriation power was enabled to expropriate reserve lands without governor in council authorization so long as it was for the purpose of public works. This power continues in the current act, but now governor in council authorization is required. It has been used in the past and is strongly opposed by Indians because of its powerful invasive effect on the reserve land base. Even the threat of its use was often sufficient to force bands to comply by surrendering lands 'voluntarily'. A good example of this provision's use and the threat of its use is provided by the relatively recent Kruger case in the Federal Court of Appeal. The case involved an action for breach of fiduciary obligation in the taking of two large tracts of land from the Penticton reserve in British Columbia for purposes of an airport. The first tract was expropriated in 1940 by the federal transport department, which had refused to follow the advice of Indian affairs officials who had helped negotiate a leasing arrangement instead. The second tract of land was lost through a surrender imposed by the threat of transport officials to expropriate reserve land, once again after a lengthy period of negotiation. In the second case, Mr. Justice Heald noted that transport officials "made little effort to seriously negotiate a settlement" and that "[t]heir only answer was to expropriate first and then negotiate thereafter."69 Despite these facts, two other members of the court could not find a breach of the Crown's fiduciary obligation. Ultimately all three judges agreed, for different reasons, that the case ought to be dismissed.70 In 1911, another amendment to the Indian Act allowed a judge to issue a court order to move a reserve within or adjoining a municipality of a certain size if it was 'expedient' to do so. There was no need for band consent or surrender before the entire reserve was moved. This provision, along with the expropriation power, was subsequently referred to as the 'Oliver Act'. It was passed despite Parliament's knowledge that its implementation could lead to a breach of treaty rights. It arose in the context of a general desire among federal officials to reduce the size of many Indian reserves in order to promote development. The minister of the interior, Frank Oliver, dealt with the issue as follows: For while we believe that the Indian, having a certain treaty right, is entitled ordinarily to stand upon that right and get the benefit of it, yet we believe also that there are certain circumstances and conditions in which the Indian by standing on his treaty rights does

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himself an ultimate injury as well as does an injury to the white people, whose interests are brought into immediate conjunction with the interests of the Indians.71 The provision was considered necessary so that Parliament would not have to pass special legislation every time it wished to expropriate reserves adjoining towns. This had been done in the case of the Songhees reserve in British Columbia that same year (see Chapter 11 on relocations), and federal officials were seeking a more expeditious way of proceeding in such cases. The Songhees reserve had been moved from Victoria to a location outside the city in order to free up prime urban land for development. Indians protested this provision, seeing in it an outright attack on the integrity of their reserve land base. In 1912, for instance, the Grand General Indian Council of Ontario passed a resolution condemning it.72 Nonetheless, it was not repealed until 1951. Federal officials were able to apply this new provision almost immediately, seeking in 1915 to move a Mi'kmaq reserve in Sydney, Nova Scotia, to another location outside the city. The judge to whom the inquiry was directed granted the application, finding that it was in the public interest because "removal would make the property in that neighbourhood more valuable for assessment", since the "racial inequalities of the Indians, as compared with the white man, check to a great extent any move towards social development".73 Similarly, the growing population of the band and the relatively small size of the reserve made it possible for the judge to conclude that it would be in the best interests of the Indians that the reserve be moved, despite the fact that they had previously indicated strong resistance to surrendering the reserve or moving to another location. In other ways, too, Indians' control of their already small reserve land base was undermined through additional powers given to federal officials. In 1919, for example, the governor in council was authorized to make regulations allowing leases to be issued for surface rights on Indian reserves in connection with otherwise valid mining operations. This would allow such operations to make use of adjoining reserve lands where necessary in the event the band refused to surrender them. There was provision for compensating the occupant of the land over which a lease might be granted. In 1936, responsibility for Indian affairs was transferred from the department of the interior to the department of mines and resources. Two years later, further amendments clarified the leasing authority originally granted in 1919, dropping the statutory requirement for compensation. By the time of the 1951 Indian Act revision, bands and band councils were no longer in a position to exercise any real control over their reserve lands beyond refusing to consent to land surrenders for sale or attaching conditions to such surrenders. This situation has continued almost unchanged to the present day. Many bands complain that the high degree of federal control over their land use decisions is preventing them from taking advantage of commercial and development opportunities in the modern Canadian economy. This issue is discussed in more detail in Volume 2 of this report.

9.2 Band Government and Law-Making Powers

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In many cases amendments to the Indian Act gave the superintendent general further powers to control band councils. For example, in 1884 he was given the power to override a band council's refusal to consent to the enfranchisement of a band member who otherwise met the qualifications. He could also annul the election of any chief found guilty of "fraud or gross irregularity" in a band council election and recommend to the governor in council that such a chief be prohibited from standing for election for six years. This provision was passed to counter the practice of many bands of holding sham elections and simply electing their traditional or hereditary leaders. In 1914 the superintendent general received authority to make health regulations that would prevail over competing band council by-laws. This regulation-making power was enhanced to cover many more areas in 1936. Since these areas coincided with many of the band council law-making powers, this effectively allowed federal authorities to second-guess band councils. In 1933 the authority of Indian agents was reinforced by an administrative directive requiring that all Indian complaints and inquiries be directed to the Indian affairs branch through the local agent. This produced the paradoxical situation of band complaints about their agents having to be directed to headquarters in Ottawa by the very agents complained about. Three years later other Indian Act amendments authorized Indian agents to cast the deciding vote in band council elections in the event of a tie and to preside at and direct band council meetings. Although Indian agents began to be phased out in the 1960s, band councils still operate under the restrictive and limiting by-law making framework first developed in 1869. In the modern era, most band council by-laws are subject to either a ministerial power of disallowance or a requirement that the minister confirm them. In addition, the regulationmaking authority of the governor in council may render band council by-laws irrelevant if they cover the same area as the regulation. Moreover, subject to certain limits, recent judicial decisions have confirmed that general provincial laws may apply to Indians living on federally protected reserve lands.74 In many situations both the provincial law and the band council by-law cover the same area. Traffic laws are a good example. So long as they do not actually conflict in a narrow constitutional sense, both sets of laws stand. This effectively undercuts band council authority and impedes the establishment of a band legal regime appropriate to the circumstances of the reserve concerned. The limited and supervised law-making powers of bands under the Indian Act are a constant object of criticism by Indian people and appear to be more and more glaringly at odds with current trends toward enhanced autonomy for First Nations communities and general trends toward decentralization within the Canadian federation.

9.3 Enfranchisement

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The concept of voluntary enfranchisement was given its first legislative expression in the Gradual Civilization Act of 1857 and remained virtually unchanged through successive versions of the Indian Act until relatively recently. It was not a realistic or popular policy among Indians, most of whom had no intention of renouncing their personal and group identity by assimilating into non-Aboriginal society. Since only one Indian, Elias Hill, had been enfranchised voluntarily (see Chapter 6), federal officials decided to make it compulsory in some situations. Thus, to the 'privilege' of voluntary enfranchisement, officials added compulsory enfranchisement in 1876 for those who obtained higher education. However, that first Indian Act also allowed unmarried Indian women to seek enfranchisement — ironically, one of the few examples of sexual equality in the early versions of the Indian Act. Given the stipulation that such a woman be unmarried, there was little possibility that her decision would affect others — unlike the case of men, whose enfranchisement would automatically enfranchise their wives and children. In addition, the new Indian Act permitted entire bands to be enfranchised, a provision that the Wyandotte (Wendat) band of Anderdon, Ontario took advantage of in 1881, finally receiving letters patent enfranchising them in 1884. This move greatly encouraged subsequent generations of Indian affairs officials in their civilizing and assimilating endeavour.75 Bands could still apply for voluntary enfranchisement until 1985. Only one other band was enfranchised voluntarily during the period when the Indian Act contained band enfranchisement provisions.76 With respect to compulsory individual enfranchisement, an 1880 amendment removed the involuntary element, thereby allowing university-educated Indians and those who had entered one of the professions to retain their Indian status if they wished. However, to prevent Indian communities from impeding worthy candidates from taking advantage of the provisions, in 1884 another amendment removed the right of the band to refuse to consent to enfranchisement or to refuse to allot the required land to the individual who had applied for enfranchisement during the probationary period. Further amendments in 1918 made it possible for Indians living off-reserve to enfranchise. This included widows and women over the age of 21. Passage of this amendment produced immediate results. The department of Indian affairs noted, for example, that in the period before 1918, only 102 persons had enfranchised, whereas between 1918 and 1920, a further 258 Indians abandoned their Indian status through enfranchisement.77 The most drastic change occurred in 1920, however, when the act was amended to allow compulsory enfranchisement once again. A board of examiners could be appointed by the superintendent general of Indian affairs to report on the "fitness of any Indian or Indians to be enfranchised" and, following the board's report, the superintendent general could recommend to the governor in council that "any Indian, male or female, over the age of twenty-one [who] is fit for enfranchisement" be enfranchised two years after the order.78 This provision was repealed two years later, but reintroduced in slightly modified form in 1933 and retained until the major revision of the act in 1951. A further modification,

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made in 1951 and retained until 1985, allowed the compulsory enfranchisement of Indian women who married out. These matters are discussed in more detail in Volume 4, in Chapter 2 and are touched on only generally in this chapter. A particularly compelling example of how enfranchisement was used by federal officials — the case of F.O. (Fred) Loft — is described later in this volume (see Chapter 12). A returning veteran of the First World War, Loft was a Mohawk from the Six Nations reserve at Brantford. After the war he became an effective leader and national spokesman for the fledgling League of Indians of Canada, a political organization designed to lobby on behalf of Indian concerns in Canada. His organizational activities alarmed Indian affairs officials, who were instructed not to co-operate with him in any way. After the passage of the 1920 amendment allowing compulsory enfranchisement, the deputy superintendent general of the day, Duncan Campbell Scott, threatened to use it to enfranchise Loft and thereby deprive him of credibility among status Indians in the country. Loft protested strongly and wrote directly to the superintendent general. In the interim, the involuntary element was repealed in 1922, so the threat was never carried out.79 Compulsory enfranchisement of Indian women who married non-Aboriginal, Métis, Inuit or unregistered Indian men was introduced in 1951 and retained until repealed in 1985 by Bill C-31. As explained in the chapter on the perspectives of Aboriginal women (Volume 4, Chapter 2), from 1951 on, enfranchisement measures under the notorious subsection 12(1)(b) of the act were directed primarily against Indian women who married men who did not have Indian status. The effects on enfranchised women and their children could be devastating. They, along with their children, would lose Indian status, the right to live in the reserve community, and even the right to treaty benefits or to inherit reserve land from family members. Compulsory enfranchisement of women led to an enormous increase in the number of enfranchised persons after the figures had remained relatively low for decades.80

9.4 Reserve Justice Administration In 1881, the administration of non-Aboriginal justice was brought formally to Indian reserves by making officers of the Indian department, including Indian agents, ex officio justices of the peace and by extending to the reserves the jurisdiction of magistrates in towns and cities. Importantly, the department of Indian affairs now had authority to enforce its own civilizing regulations. The next year local Indian agents were given the same powers accorded magistrates. Evidently, this was a considerable extension of the powers of administrators with no previous legal training. In 1884, yet another set of amendments allowed Indian agents, in their role as justices of the peace, to conduct trials wherever they thought necessary. Presumably, this would allow them to conduct trials off-reserve as well. The same amendments extended the authority of Indian agents acting as justices of the peace beyond Indian Act matters to "any other matter affecting Indians." Given that the Criminal Code had not yet been enacted, this presumably included all civil and criminal matters generally — a

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considerable amount of jurisdiction for a civil servant. This was corrected two years later, however, to limit their jurisdiction to Indian Act matters. Also in 1884, a new offence was created under the Indian Act, that of inciting "three or more Indians, non-treaty Indians, or halfbreeds" to breach the peace or to make "riotous" or "threatening demands" on a civil servant. In addition, the superintendent general was given authority to prohibit the sale to any Indian in the west of "fixed ammunition or ball cartridge." These measures were adopted for purely political motives — to foil the Métis and Cree peoples, who were increasingly discontented with government policy toward them. Ultimately, of course, the other stern measures being taken against them, such as the restriction of rations to the Cree, for example, would cause them to rebel against the imposition of Canadian political authority over them in what became known as the second Riel Rebellion. Thus, the federal government criminalized Indian and Métis political protest and prevented Indians from receiving ammunition needed for hunting at a time when they were already suffering from the effects of Deputy Superintendent Vankoughnet's cost-saving policy of restricting rations to them following the drastic decline of the buffalo herds.81 Both new offences, inciting and providing ammunition, were within the jurisdiction of the Indian agent. Amendments to the Indian Act in 1890 brought Indian persons accused of certain sexual offences within the jurisdiction of Indian agents.82 Following enactment of a comprehensive Criminal Code in 1892, Indian agents lost this aspect of their criminal law authority over Indians, but it was restored to them in 1894 along with jurisdiction over two additional offences, Indian prostitution and Indian vagrancy. In describing the evolution of the powers of Indian agents, the two judges who conducted the Aboriginal Justice Inquiry of Manitoba compared the relatively more oppressive Canadian approach to bringing non-Aboriginal justice to Indians with that used on reservations in the United States: The Americans also sought from the outset to use the court system as a "civilizing" tool to foster their values and beliefs in substitution for traditional law and governmental structures. It was felt that this was accomplished best through the hand-picking of individual tribal members to be appointed as judges under the supervision of the Bureau of Indian affairs Indian agents. The Canadian approach was much more oppressive. All Indian agents automatically were granted judicial authority to buttress their other powers, with the result that they could not only lodge a complaint with the police, but they could direct that a prosecution be conducted and then sit in judgment of it. Except as accused, Aboriginal persons were excluded totally from the process.83 It seems clear that the justice administration powers of the agents served more to augment their already impressive array of administrative powers than to deliver Canadian justice to Indians. It is hardly surprising, then, that even today, many Indians still harbour a deep-seated resentment toward mainstream justice officials — something pointed out by

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most of the many recent Aboriginal justice inquiries. We dealt with these issues in some detail in our special report, Bridging the Cultural Divide.84 Today, there are no longer any Indian agents exercising judicial functions. A few Indians have now been appointed to the position of justice of the peace under the Indian Act, but only on three reserves.85 Except for those reserves that have appointed by-law enforcement officers and band constables under delegated federal authority, most bands have no internal means of enforcing their by-laws or prosecuting those who contravene them. They must rely for the most part on provincial police and provincial Crown attorneys to prosecute by-law offenders in the provincial court system. Unfortunately, police and prosecutors have a heavy workload and usually intervene only in the case of criminal and serious statutory offences. As a result, bands themselves must often initiate proceedings where their by-laws have been violated, sometimes by engaging counsel to pursue such matters. This is expensive and time-consuming, unless the band is a large one with the financial resources and political will to pursue such actions. With regard to criminal matters, the remoteness and isolation of many communities means that access to the judicial system is often limited to sporadic and hurried visits by circuit courts enforcing Canadian criminal law. Thus, the police and courts are usually unable to accommodate Indian values and concepts of justice. The results include inappropriate charging practices and convictions and sentences that do not reflect Indian views or needs. These matters have been reviewed extensively in federal and provincial Aboriginal justice inquiries over the years. Many bands see the existing justice system as a foreign one, less a protector than an enforcer of an alien and inappropriate system of law. Effective enforcement of Indian Act by-laws and the most common criminal offences involves not only laying charges against offenders, but also prosecution, adjudication and sentencing. The current situation with outside police forces refusing to enforce by-laws, the limited criminal jurisdiction of Indian Act justices of the peace, the forced reliance on provincially and territorially administered courts, and the absence of any authority for bands to correct these anomalies means jurisdictional gaps, confusion over procedures and policies, and the continuing inability of bands to provide effectively for the safety and security of their own members. Paradoxically, most bands have moved from a position of extremely heavy judicial control of reserve law and order matters to a situation of almost no control, except by outside forces on a sporadic basis. From a position of too much enforcement, they have arrived at one of not enough. This is just one of the legacies of the past, but it is one that has profoundly serious consequences for daily life in most reserve communities.

9.5 Attacks on Traditional Culture In 1884 official policy turned from protecting Indian lands from non-Indians to protecting Indians from their own cultures. That year amendments to the Indian Act prohibited the potlatch and the Tamanawas dance. The potlatch was a complex ceremony among the

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west coast tribes that involved giving away possessions, feasting and dancing, all to mark important events, confirm social status and confer names and for other social and political purposes. Tamanawas dances were equally complex west coast ceremonies involving supernatural forces and initiation rituals of various kinds, many of which were repugnant to Christian missionaries.86 A jail term of two to six months could result from conviction of any Indian who engaged or assisted in Tamanawas dances. This was a significant development in Indian policy because it went further than merely imposing non-Indian forms on traditional Indian governance or land holding practices — it was a direct attack on Indian culture. The goal was, of course, to assist the civilization and assimilation goals of Indian policy by abolishing what a British Columbia official referred to at the time as the evil that lay "like a huge incubus upon all philanthropic, administrative or missionary effort for the improvement of the Indians."87 The 1884 prohibition on potlatching and the Tamanawas dance was not pursued as vigorously as its sponsors had hoped, although the arrests and harassment of potlatchers apparently had the desired effect of reducing the incidence of potlatching and Tamanawas dances or at least forcing adherents to conduct these activities in secret. The failure to pursue the ban more actively was partly because of the reluctance of the Indian agents to enforce it — not all were opposed to traditional practices such as these. Partly it was the result of an early decision by British Columbia Chief Justice Begbie that was unsympathetic to such prosecutions.88 In British Columbia, it seems as if most of the antipotlatching impetus came from missionaries and Christian converts among the west coast tribes rather than from government officials.89 Thus, no one was jailed for potlatching until 1920, during a period of intense official enforcement of prohibitions on traditional cultural practices in British Columbia and on the prairies. However, official disapproval and the pressure generated by it, harassment from the Indian agents, use of the Indian Act trespass provisions to evict Indians from other reserves, and mass arrests and trials did have the desired effect of eliminating or at least undermining the potlatch and other traditional ceremonies in many cases. This was particularly so under the leadership of Deputy Superintendent Duncan Campbell Scott, who led a virtual crusade against traditional Indian cultural practices and who sponsored an amendment to the Indian Act in 1918 that gave Indian agents the additional power when acting as justices of the peace to prosecute the anti-dancing and anti-potlatching provisions. Speaking at our round table on justice, British Columbia Provincial Court Judge Alfred Scow supported the conclusion that official harassment of the potlatch and other traditional ceremonies was harmful to the traditions of his people, the Kwakiutl of Vancouver Island: The Indian Act did a very destructive thing in outlawing the ceremonials. This provision of the Indian Act was in place for close to 75 years and what that did was it prevented the passing down of our oral history. It prevented the passing down of our values. It meant an interruption of the respected forms of government that we used to have, and we did have

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forms of government be they oral and not in writing before any of the Europeans came to this country. We had a system that worked for us. We respected each other. We had ways of dealing with disputes. We did not have institutions like the courts that we are talking about now. We did not have the massive bureaucracies that are in place today that we have to go through in order to get some kind of recognition and some kind of resolution.90 Following the initial ban of the potlatch and the Tamanawas, further amendments prohibiting traditional dances and customs followed in 1895. Thus, later practices associated with traditional dances, including the Blackfoot sundance and the Cree and Saulteaux thirst dance, were singled out for an outright ban. However, since the ban applied only to the giving away of property and to the wounds and other injuries that were customary for some of the participants, the dances themselves were immune from the prohibition. Indian agents nonetheless attempted to suppress the actual dances. This led to tensions between agents and the RCMP, who were charged with enforcement, because the police were unwilling to go beyond the law to enforce departmental policy. Arrests and imprisonments did take place, however, including one in 1904 that led to a sentence of two months' imprisonment at hard labour for a 90-year-old, nearly blind man named Taytapasahsung.91 Because of the scandal associated with such cases and the growing popularity of stampedes and agricultural exhibitions at which Indians were increasingly invited to dance, an amendment was passed in 1914 barring western Indians under penalty of law from participating without official permission in "Aboriginal costume" in any "dance, show, exhibition, stampede or pageant." Arrests and prosecutions immediately went up, but because the offences were indictable ones, they were beyond the jurisdiction of Indian agents acting as justices of the peace. In such cases they could merely lay charges in another court. In 1918 this was corrected by bringing these offences within the agent's jurisdiction and removing them from courts outside the reserve. In 1921, the deputy superintendent general wrote to one of his western officials, urging him in the following terms to find alternatives to what he clearly misunderstood to be a mere recreational activity: It has always been clear to me that the Indians must have some sort of recreation, and if our agents would endeavour to substitute reasonable amusements for this senseless drumming and dancing, it would be a great assistance.92 In 1933 the requirement that the participants be in Aboriginal costume was deleted from the prohibition; to attract the penalty it was sufficient that an Indian participate in the event, no matter how he or she was dressed. The apparent intent was to prevent Indians from attending fairs and stampedes without the permission of Indian affairs officials. Since the first prohibition was enacted in 1895, various means had been found by Indians and their supporters to get around the ban on dancing. This new offence seems in

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retrospect to have been the last desperate attempt of Indian affairs officials to enforce their anti-dancing policy. These provisions have now been removed from the Indian Act. Nonetheless, and as illustrated by the comments of Judge Scow concerning the ban on potlatching, their legacy continues. Indian traditional ways have been subverted and have sometimes disappeared. This has left many Indian communities trapped between what remains of traditional ways of doing things and the fear of importing too much more of mainstream Canadian cultural values into reserve life.

9.6 Liquor Offences The control of sales of alcohol to Indians had been a feature of colonial legislation long before the Indian Act and had been ardently requested by many Indian nations because of the destructive social consequences of drunkenness in Indian communities. Both before and after Confederation penal sanctions were imposed on the sellers of alcohol. However, legislation was passed in 1874 making it an offence punishable by one month in jail for an Indian to be intoxicated on- or off-reserve. Failure to name the seller of the alcohol in question could lead to an additional 14 days' imprisonment. These provisions became part of the 1876 Indian Act, supplemented by the prohibition on simple possession of alcohol by an Indian on-reserve. The later 1951 Indian Act revision made one exception to the provisions by allowing an Indian to be in possession of alcohol if in a public place and in accordance with provincial law. It was still an offence to be drunk, however. No non-Indian could have been convicted of a similar offence. In the Drybones case the Supreme Court of Canada finally struck down the off-reserve intoxication offence for contravening the equality provision of the Canadian Bill of Rights.93 These provisions have been eliminated from the contemporary version of the Indian Act, and control over intoxicants on-reserve has been transferred entirely to the band and band council.

9.7 Pool Room Prohibition In 1927 the superintendent general of Indian affairs was given the unusual power of regulating the operation of pool rooms, dance halls and other places of amusement on reserves across Canada. This was apparently to ensure that Indians would learn industriousness and would not spend too much time in leisure pursuits that were available to non-Indians. Where Indians were tempted to leave the reserve to play pool, further amendments in 1930 made it an offence for a pool room owner or operator to allow an Indian into the pool room who "by inordinate frequenting of a pool room either on or off an Indian reserve misspends or wastes his time or means to the detriment of himself, his family or household". The penalty for the pool room operator in such a case was a fine or a jail term of up to one month. These provisions are no longer in the Indian Act.

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9.8 Sale of Agricultural Products Amendments to the Indian Act in 1881 aimed to protect western Indians by prohibiting the sale of their agricultural produce except in conformity with official regulations. Anyone who purchased Indian agricultural produce without the appropriate permit was subject to summary conviction and a fine or imprisonment for up to three months. The official rationale was that this was necessary to prevent Indians from being swindled by non-Indians and to prevent the exchange or barter of agricultural products for things the agents did not consider worthwhile, especially alcohol. However, another motive may have been the desire to reduce competition between Indian and non-Indian farmers. There are indications that in the 1880s non-Indian farmers were complaining to local Indian agents about the competition they were facing from Indian farmers, claiming it was unfair because of the government assistance to reserves.94 At this time, official federal policy on the prairies was explicitly to convert Indians to peasant farmers on the model of peasants of Europe. This addled policy was the brainchild of Hayter Reed, then deputy superintendent general of Indian affairs. He was imbued with a philosophy of strict social Darwinism, convinced that social evolution could proceed only in defined stages, from savagery to barbarism to civilization. Convinced that Indian attempts to 'advance' themselves too quickly would be 'unnatural', he stated as follows: The fact is often overlooked, that these Indians who, a few years ago, were roaming savages, have been suddenly brought into contact with a civilization which has been the growth of centuries. An ambition has thus been created to emulate in a day what white men have become fitted for through the slow progress of generations.95 The requirement for a permit was also used by certain agents as more than a means to oversee transactions in Indians' interests. It was equally available as yet another tool for enforcing compliance with official policies. In this respect, the daughter of a prominent prairie Cree leader reports that her father saw the permit system as a loaded gun in the hands of the agent: As time went on the permit system began to evolve into a disciplinary device. If the agent did not like a certain Indian, or if an Indian did something to displease him the agent could refuse or delay indefinitely a permit enabling him to sell any of his produce or to buy needed stock, equipment or implements. Favoured Indians would get all kinds of lands and help, totally contrary to the intent of the treaties, others got nothing. With no money coming in, unable to pay his debts, properly work his land or even to feed his stock the helpless farmer had to give away his cattle and try to find work from outside farmers, which usually consisted of clearing bush or picking rocks. This was enervating, debilitating work which the farmers themselves detested. And even such work was seasonal and not always available. White people, seeing only that the Indian had stopped working and had not paid his debts, concluded that Indians were useless, lazy and unreliable. There were too many men like this on the reserves.96

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Whatever may have been the underlying reasons for this prohibition or the uses to which it was put, one effect was to hinder Indian farmers and to make them appear less efficient or even to drive them from farming. Nonetheless, the provision was retained and expanded in successive versions of the Indian Act and was extended in 1941 to all Indians in Canada regarding the sale of furs and wild animals. Despite the 1951 revision and the advent of the Canadian Charter of Rights and Freedoms and other human rights instruments, the present version of the Indian Act still contains a provision prohibiting the sale of agricultural products by western Indians without official permission, although it is apparently no longer enforced.

9.9 Indian Legal Claims In a 1927 amendment, the superintendent general acquired a powerful new weapon in his arsenal — the right to require that anyone soliciting funds for Indian legal claims obtain a licence from him beforehand. Conviction could lead to a fine or imprisonment for up to two months. Official explanations once again focused on the need to protect Indians, this time from unscrupulous lawyers and other "agitators".97 The true reason probably had more to do with the desire of federal officials to reduce the effectiveness of Indian leaders such as Fred Loft and of organizations such as the Allied Tribes of British Columbia and the Six Nations Council. These groups had already proven troublesome to Indian affairs officials because of their insistence that their unresolved land claims be dealt with. In fact, Indian affairs officials were actively working to have charges laid against long-time British Columbia activist Arthur E. O'Meara when he died in 1928 and were on the verge of charging Loft when, elderly and tired, he finally withdrew from the struggle for Indian rights in the early 1930s.98 The effect of this provision was not only to harass and intimidate national Indian leaders, but also to impede Indians all across Canada from acquiring legal assistance in prosecuting claims until this clause was repealed in 1951. The claims of most British Columbia Indians as well as those of the Six Nations are still outstanding — as are hundreds of others.

9.10 The Pass System The notorious pass system was never part of the formal Indian Act regime. It began as a result of informal discussions among government officials in the early 1880s in response to the threat that prairie Indians might forge a pan-Indian alliance against Canadian authorities. Designed to prevent Indians on the prairies from leaving their reserves, its immediate goal was to inhibit their mobility. Under the system, Indians were permitted to leave their reserves only if they had a written pass from the local Indian agent. The agent would often act on the advice of the reserve farm instructor. The pass system should be read against the backdrop of other attempts to interfere with Indian cultural life, as it was intended not only to prevent Indian leaders and potential militants from conspiring with each other, but also to discourage parents from visiting

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their children in off-reserve residential schools and to give agents greater authority to prevent Indians from participating in banned ceremonies and dances on distant reserves. Although the pass system was official policy on the prairies, there was never any legislative basis for it. It was therefore nothing more than an expedient policy that arose apparently from a suggestion by the deputy superintendent general of Indian affairs to Prime Minister Macdonald in 1885.99 It was maintained through the 1880s but had fallen into general disuse by the 1890s, although it was used occasionally in various parts of the prairies into the twentieth century. The RCMP disliked enforcing the pass system because of their fear that, if challenged, it would be found illegal by the courts and would bring their other law enforcement efforts into disrepute. In practice the pass system was only partly effective in restricting Indian movement and was often ignored by Indians and by the agents themselves. Because it could not be legally enforced, many Indian agents simply issued passes to those who were going to leave the reserve in any event, or else they attempted to enforce the system by other means. Thus, rations and other matters within the control of the Indian agent were sometimes withheld from those who refused to comply. Another alternative was to prosecute Indians found off the reserve without passes for trespass under the Indian Act or for vagrancy under the Criminal Code,100 both of which were within the jurisdiction of the agent.

9.11 Indian Agents The role of the Indian agent has never been fully documented in Canadian history. This is largely because the work of these local reserve representatives of the superintendent general of Indian affairs was usually conducted in geographically remote areas, far from the scrutiny of most Canadians. Moreover, Indian affairs were, until relatively recently, well down on the list of the preoccupations of most Canadians. Most accounts of how Indian agents conducted themselves have therefore been written from the vantage point of Indians and in the context of the many civilizing and assimilating measures that were imposed on them through official federal policy. Some of those measures and the role played by Indian agents have already been described. Over the years the superintendent general acquired an increasingly vast array of powers to intervene in almost all areas of daily reserve life. Most of these powers were available to the agents. With their control of local administrative, financial and judicial matters, it is easy to understand how they came to be regarded as all-powerful and as persons of enormous influence in community life on most reserves. For example, in a 1958 study of Indian conditions in British Columbia, the duties of superintendents (agents) were described as follows: [T]he superintendent deals with property and with records, or with the recording of property. He registers births, deaths and marriages. He administers the band's funds. He supervises business dealings with regard to band property. He holds band elections and

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records the results. He interviews people who want irrigation systems, who complain about land encroachments, who are applicants for loans. He suggests to others that, if they are in a common-law relationship, they should get married, for, among other reasons, this simplifies the records. He obtains information about persons applying for enfranchisement. He adjusts the property of bands when members transfer. He deals with the estates of deceased Indians. He obtains the advice of the engineering officers on irrigation systems, and the building of schools. He negotiates the surrender of lands for highways and other public purposes. He applies for funds to re-house the needy and provide relief for the indigent. He draws the attention of magistrates to factors which bear upon Indians standing trial on criminal charges.101 To that list, of course, must be added the justice of the peace duties and powers described earlier: the power of inspecting schools and health conditions on reserves, presiding over band council meetings and, later, voting to break a tie. In addition, and as outlined in Chapter 12, the agents were also responsible for encouraging Indians to enlist in the armed forces during the wars and for keeping lists of those enlisted for purposes of administering veterans' benefits after the wars. It is clear that their powers and influence were formidable. In many cases, Indian agents were persons of intelligence and integrity. For example, the anti-potlatch provisions in the Indian Act after 1884 were often thwarted by the agents themselves, as many regarded the prohibition as misguided and harmful. In the same way, Indian agents, along with the farm instructors, were from the beginning the most vociferous in calling for an end to certain aspects of Hayter Reed's absurd agriculture policy of transforming Indians into simple peasant farmers by forcing them to use hand implements instead of machinery. Many were courageous in allowing Indians to use machinery to harvest their crops, despite the career risks this entailed.102 By the same token, however, some Indian agents were petty despots who seemed to enjoy wielding enormous power over the remnants of once powerful Aboriginal nations. While much of their apparent disrespect can be attributed to the profound cultural differences between them and the Indian nations they were supervising, it is nonetheless clear that the Indian affairs branch often seemed to attract persons particularly imbued with the zeal associated with the strict morality and social Darwinism exhibited by deputy superintendents general Hayter Reed and Duncan Campbell Scott. The condescending attitudes of many agents seemed to be accurately reflected in the following observation by William Graham, a long-time prairie agent and one who was much feared and complained about: However, I must say, taking everything into consideration, the Indians were not bad, generally speaking. They did not thoroughly understand everything that was being done for them and were more or less suspicious by nature. The wonder is that there was not more trouble than there was.103

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Following the return of veterans after the Second World War, Indian agents and other Indian affairs officials found themselves confronted increasingly by challenges to their authority and influence from activists. Many of the additional powers given to agents following the war were precisely to enable them to maintain their local authority. Beginning in the 1960s and at the initial insistence of the Walpole Island Band in Ontario, Indian agents began to be removed from reserves across Canada. The position no longer exists in the department of Indian affairs.

9.12 Indian Voting Rights After Confederation, provincial voter eligibility requirements determined who could vote in federal elections and generally involved property ownership provisions that reservebased Indians could not meet unless they enfranchised. In 1885, however, the right to vote in federal elections was extended to Indians in eastern Canada; eligibility included male Indians who met the qualification of occupying real property worth at least $50. For these purposes, reserve land held individually through location tickets would qualify. Indians in western Canada were not allowed to vote, however, because, in the words of the minister of Indian affairs of the day, David Mills, that would have allowed them to go "from a scalping party to the polls".104 The legislation granting the vote to eastern Indians was eventually repealed in 1898, thereby making all Indians ineligible to vote federally, since provincial laws once again governed the issue. The First World War and the large number of Indians who enlisted altered the situation, however. Thus, in 1917 Indians on active military service were permitted to vote in federal elections, and in 1920 the federal vote was restored to two classes of Indians: those who lived off-reserve; and those (on- or off-reserve) who had served in the Canadian army, navy or air force in the First World War. In 1944, during the Second World War, the federal government extended the federal franchise once again to Indians (on- or off-reserve) who had served in the war and to their spouses. In 1950, the federal franchise was extended further to on-reserve Indians, but only to those who waived their Indian Act tax-exempt status regarding personal property (which would have made them liable for income tax). In 1960, the federal franchise was finally extended without qualification to all Indians. When the provinces dropped the property qualification and adopted universal male suffrage in the late nineteenth and early twentieth century, many provinces passed legislation explicitly to exclude Indians.105 The provincial franchise was then re-extended to Indians at different times: British Columbia in 1949; Manitoba in 1952; Ontario in 1954; Saskatchewan in 1960; Prince Edward Island and New Brunswick in 1963; Alberta in 1965; and Quebec in 1969. Indian people in Nova Scotia were apparently never prevented from voting in provincial elections after the adoption of universal male suffrage. Newfoundland did not enter Confederation until 1949 and when it did, agreement was reached with the federal government that neither government would recognize Aboriginal people as status Indians under the Indian Act. Indeed, until the

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federal government recognized the Miawpukek Band of Conne River in 1984, there were no status Indians in the province, so the question of Indian people voting in provincial elections never arose. Inuit were excluded from the federal franchise in 1934 but had the vote restored to them without qualification in 1950. Except for those who had identified themselves as Indians and lived on reserves as part of an Indian community, Métis people had always been considered citizens and were eligible to vote in both provincial and federal elections (so long as they met the other criteria, such as possession of property).

9.13 Indian Women If Indian people generally can be said to have been disadvantaged by the unfair and discriminatory provisions of the Indian Act, Indian women have been doubly disadvantaged. This is particularly so, for example, with regard to discriminatory provisions on land surrender, wills, band elections, Indian status, band membership and enfranchisement. The Indian status and band membership system is discussed in the next section. The lingering effects of this early and sustained assault on the ability of Indian women to be recognized as 'Indian' and to live in recognized Indian communities continue to be experienced by many Indian women and their children today. As described earlier, the first enfranchisement legislation, the Gradual Civilization Act, enabled any male Indian who met the qualifications to be enfranchised. His wife and children were automatically enfranchised with him, irrespective of their wishes in the matter. Unlike the husband, the wife received no allotment of reserve land upon being enfranchised. When an enfranchised man died, the land passed to the children in fee simple. The widow could regain Indian status and band membership only by marrying another Indian man. In 1869, the Gradual Enfranchisement Act continued these enfranchisement provisions and added to them by providing that an enfranchised man could draw up a will leaving his land to his children — but not to his wife. By this legislation, Indian women were also denied the right to vote in band council elections. This prohibition on participation in band political matters continued through successive versions of the Indian Act until 1951, well after non-Indian women in Canada had acquired the right to vote in Canadian elections. The Gradual Enfranchisement Act was the first federal legislation to impose serious consequences on an Indian woman who married a non-Indian. Unlike the case of an Indian man marrying out — whose non-Indian wife and children would acquire Indian status — she would lose Indian status, and any children of the marriage would never have it. These provisions were carried forward into the first Indian Act in 1876 and were maintained until 1985. In the same vein, the 1876 Indian Act carried the Victorian

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emphasis on male superiority to new extremes, providing that only Indian men could vote in reserve land surrender decisions. Amendments to the Indian Act in 1884 permitted any male Indian holding reserve land by location ticket to draw up a will. He could bequeath his property to anyone in his family, including his wife. However, in order for her to receive anything she had to have been living with him at his death and be "of good moral character" as determined by federal authorities. No Indian man inheriting property by will needed to meet any such criteria. Further amendments in 1920 removed an important band council power and gave it to the superintendent general. Before that, band councils had been able to decide whether an Indian woman who had lost Indian status through marrying out could continue to receive treaty annuity payments or whether she would be given a lump sum settlement. Often a band would continue to allow women who had married out to receive treaty payments and in this way retain a link to their home communities. Thus, while such women would no longer have Indian status as such, through band council permission they could retain informal band membership. The band and federal authorities would thus overlook their lack of status.106 The 1951 revision of the Indian Act, discussed later in this chapter, went further than previous legislation in attempting to sever completely the connection between Indian women who married out and their reserve communities. A solution had to be found to the situation of Indian women who had married out but had then been deserted or widowed by their non-Indian husbands. These women did not have legal status as Indians, nor were they considered non-Indian in the same way as enfranchised women were. Rather than allow them to regain Indian status and formal band membership and with them an Indian community to go back to, federal authorities decided to provide for their involuntary enfranchisement upon marriage. They would thus lose any claim to Indian status or to formal or informal band membership. Until then, these women had usually managed to continue to receive their treaty annuities and, in many cases, even to continue to reside in their reserve community. Before the 1951 revision it had even been the practice in some Indian agencies to issue informal identity cards, referred to as 'red tickets', to these women to identify them as entitled to share in treaty moneys. The director of the Indian registration and band list directorate at DIAND describes the system as follows: It would have been a card that would have been issued to a woman who had married a non-Indian and lost her Indian status and band membership, and originally it would have been red [the colour] to indicate that she was no longer a member of the band but was entitled to collect treaty at the time the treaty payment was made.107 With the 1951 enfranchisement provisions, all that changed. Henceforth, an Indian woman would not only lose status but would also be enfranchised as of the date of her marriage to the non-Indian man.

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Enfranchisement had immediate and serious consequences. Not only did it mean automatic loss of status and band membership, and with it the forced sale or disposal of any reserve lands she might have held; it also meant she would be paid out immediately for her share of any treaty moneys to which her band might have been entitled as well as a share of the capital and revenue moneys held by the federal government for the band. These provisions were later upheld against an equality challenge under the Canadian Bill of Rights, despite their characterization by Mr. Justice Laskin in the Lavell and Bedard cases as "statutory excommunication" and "statutory banishment".108 Red ticket women who had lost status before 1951 were dealt with in a later amendment to the Indian Act. They were paid a lump sum and put in the same position as Indian women who married out after 1951. The children of these mixed marriages were not mentioned in the 1951 Indian Act. For a few years such children were erroneously enfranchised along with their mothers. Because there had been no legal basis for their enfranchisement, in 1956 further Indian Act amendments restored their Indian status. However, the same amendments authorized the issuing of orders that all or any of the children of an enfranchised woman also be enfranchised with her. This language was inserted to correct the earlier problem and to make it possible to enfranchise such children in the future. In practice, the off-reserve children of a woman enfranchised under these provisions would usually also be enfranchised, while her children living on-reserve would generally be permitted to retain their Indian status. Thus, the discriminatory features of the Indian Act regarding Indian women who married out were actually strengthened following the Second World War, despite trends toward greater egalitarianism in the rest of Canadian society. It is clear in retrospect that a double standard was at work, since Indian men could not be enfranchised involuntarily after 1951 except through a stringent judicial inquiry procedure in the revised Indian Act. The figures for enfranchisement between 1955 and 1975 (when compulsory enfranchisements of women were ended administratively) demonstrate this, with nearly five times as many persons enfranchised compulsorily as enfranchised voluntarily.109 Thus, the number of enfranchisements, which had been relatively small in the century following passage of the Gradual Civilization Act, jumped markedly after 1951. Today many of those women and their children have been returned to status and to band membership by the 1985 amendments to the Indian Act contained in Bill C-31. However, there are still large numbers of non-status Indians, the victims of earlier loss of status or of the enfranchisement provisions, who have not been able to meet the new criteria set out in the current version of the act. At the same time, many women and their children who have recovered Indian status as a result of the 1985 amendments have been unable to secure band membership. This is because those amendments gave bands the power to control their own membership. Some bands that control their membership have refused to allow these 'Bill C-31 Indians' to rejoin the band. In other cases, people who have managed to acquire band membership

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have been refused residency rights on the reserve by the band council. Thus, they may now have status and band membership but be unable to return to the community or to vote in band council elections. Moreover, the children of Indian women restored to status under the new rules in Bill C31 generally fall into the section 6(2) category of status Indian. As discussed in the next section, this means they are inherently disadvantaged in terms of their ability to transmit Indian status through marriage. In these and other ways, many Indian women and their descendants continue to experience the lingering effects of the history of discriminatory provisions in the Indian Act.

9.14 Indian Status and Band Membership The Gradual Enfranchisement Act of 1869 was the first law denying Indian status to an Indian woman who married out and preventing her children from acquiring status. Carried forward into the first Indian Act in 1876, these provisions were maintained until 1985. Recognition as 'Indian' in Canadian law often had nothing to do with whether a person was actually of Indian ancestry. Many anomalies and injustices occurred over the years in this regard. For example, a woman of non-Indian ancestry would be recognized as Indian and granted Indian status upon marriage to an Indian man, but an Indian woman who married a man without Indian status would lose legal recognition as Indian. Moreover, for historical reasons, many persons of Indian ancestry were not recognized as being Indians in law and were, accordingly, denied Indian status. The status and band membership provisions, although heavily slanted against Indian women, nonetheless worked a hardship on Indians of both sexes over the years. For example, in 1887 the superintendent general was given the power to determine who was or was not a member of a band, with his decision on the matter appealable only to the governor in council. This power would ensure that those deemed ineligible for band membership could be removed more easily from a reserve community by federal authorities.110 This provision was retained through to the 1951 amendments, when the power passed to an official known under the Indian Act as the registrar. Although Indian Act bands have had delegated authority since 1985 to determine their own membership, they do not have the authority to grant Indian status in law — that remains with federal authorities. The federal government, which normally funds bands through a formula based on the number of status Indian band members, does not generally provide funds to bands for persons who are not status Indians. Bands that allow people without Indian status to become band members are therefore penalized financially, since they then have to provide housing and other services to these new band members without offsetting federal payments. This is a strong disincentive to many bands, since most are poor and utterly

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dependent on the federal government for their funding. This means that large numbers of people of Indian ancestry who may have a connection to a band are unable to acquire either band membership or reserve residency. In 1920 the superintendent general was given the authority to decide whether an Indian woman who lost status upon marrying out would receive her annuity or a lump sum settlement. This led to many problems, including that of Indian women who lost status but were then widowed or deserted; these women were left in a precarious and doubtful situation — neither Indian nor non-Indian in Canadian law. During the 1946-48 parliamentary hearings on revising the Indian Act (discussed in more detail later), federal officials were unable to explain whether or to what extent they planned remedial action. As it turned out, the response of federal officials dealt with the situation of these women, but also served to confirm the continuing assimilative thrust of federal Indian policy. In a letter to the joint committee examining the issues, Indian affairs officials were candid regarding their motivations in the case of Indian women who married non-Indian men: ...by the alteration of the definition of Indian by the Statute of 1876 the Dominion very substantially reduced the number of people for whose welfare it was responsible and by that action passed the responsibility on to the provinces for thousands of people, who, but for the statute of 1876, would have been federal responsibility for all time.111 The 1951 version of the Indian Act allowed such women to be enfranchised involuntarily upon marrying out. Thus, their status was left in no doubt: under no circumstances would they be considered 'Indian' unless they subsequently remarried a status Indian man. Although the current Indian Act contains no enfranchisement provisions, the status rules, as modified in 1985 by Bill C-31, are still highly problematic. Not only are they extremely complex, but like their historical predecessors, they appear to continue the policy of assimilation in disguised but strengthened form. This is because of the distinctions drawn between two classes of Indians under the post-1985 rules. We discuss this issue in more detail in Volume 4, Chapter 2. Subsection 6(1) of the Indian Act accords status to persons whose parents are or were (if they are no longer alive) defined as 'Indian' under section 6 of the act. Subsection 6(2) accords status to persons with one parent who is or was an Indian under section 6. All those who were status Indians when the new rules came into effect in 1985 are referred to as 6(1) status Indians. This includes non-Indian women who were married to Indian men at that time. The difficulties arise for the children and grandchildren of today's 6(1) and 6(2) status Indians. For the grandchildren of the present generation of 6(1) and 6(2) Indians, the manner in which their parents and grandparents acquired status is an important determinant of whether the grandchildren have Indian status themselves. The net result of the new rules is that by the third generation, the effects of the 6(1)/6(2) distinction will be

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felt most clearly. Figure 9.1 shows how transmission of status works under the new rules.112

Thus, comparing examples 3 and 5, it is clear that the children of a 6(2) parent are penalized immediately if the 6(2) parent marries out, while the children of 6(1) parents are not. Figure 9.2 extends the effects of the 6(1)/6(2) difference in examples 3 and 5 to illustrate this. It is clear that the 6(1) parent has an advantage in terms of time if he or she marries out, since the child will still be a status Indian and will have the chance to marry another status Indian, 6(1) or 6(2), in order to retain Indian status for the children of that marriage. The 6(2) parent is not so fortunate, and may by marrying out cause status to be lost within the first generation. Thus, who the children marry is crucial in determining whether status is passed on to future generations, since there is a definite disadvantage to being in the 6(2) category. Nor should it be forgotten that this has very little to do with actual Indian ancestry, since the new rules are arbitrary and are built on the arbitrary distinctions that have come down through the history of the Indian Act and its predecessors. An example using siblings shows the unfairness of the new rules clearly. A status Indian brother and his status Indian sister both married non-Indians before the new rules came into effect in 1985. The children of the sister would fall into the 6(2) category at the outset, because they would only have one parent (the mother) who is a status Indian under section 6 of the current act. The children of the brother who married out before the 1985 amendments would fall into the 6(1) category, however, since both parents would 281

be status Indians under section 6 (the non-Indian mother having acquired status under the pre-1985 rules). The brother's children would therefore start off with an advantage over their 6(2) cousins in terms of status transmission. This has nothing to do with Indian ancestry, since the 6(1) and 6(2) children discussed in this example have exactly the same degree of Indian ancestry. Each has one parent of Indian ancestry and one of non-Indian ancestry. The fact that the children of the status Indian man who married out acquired status, while the children of the status Indian woman who married out did not, is at the root of this 6(1)/6(2) distinction. Thus, the post1985 status rules continue to discriminate as the pre-1985 rules did, except that the discriminatory effects are postponed until the subsequent generations. Moreover, the increase in the number of persons with Indian status through Bill C-31 was

Moreover, the increase in the number of persons with Indian status through Bill C-31 was a one-time event. Demographic trends show that this increase will begin to reverse itself within a few generations and that the number of status Indians will likely decline drastically. Thus, given the present rate at which status Indians marry outside the 6(1) or 6(2) category, it is predicted that, in time, many Indian communities will no longer be populated by people who fall within either the 6(1) or the 6(2) category. Material circulated by the Whispering Pines Indian Band of British Columbia in 1989 confirms this observation in more graphic terms: The Whispering Pines Indian Band is located about 25 miles outside Kamloops. Since this is where the reserve is situated, our members associate the majority of time with nonstatus people.... [M]arriages are 90 per cent (approx.) to non-status people. For two generations already, marriages have been this way, so the chances of children from these marriages, in turn, marrying status Indians are very slim.... Actually the whole section in Bill C-31 on status has affected all Bands in Canada. The Bill was written to eliminate discrimination in the Indian Act. What it has really done is found a way to eliminate status Indians all together.113

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Thus, it can be predicted that in future there may be bands on reserves with no status Indian members.114 They will have effectively have been assimilated for legal purposes into provincial populations. Historical assimilation goals will have been reached, and the federal government will have been relieved of its constitutional obligation of protection, since there will no longer be any legal 'Indians' left to protect.

10. Post-War Indian Policy Reform: Everything Old Is New Again To return to the evolution of Indian policy and the Indian Act, by the early twentieth century policy development had entered a new phase, as Canada attempted to come to terms with the impact of massive immigration and the effects of the First World War. Although the possibility of assimilating Indians quickly into the mainstream of a changing and growing Canadian population seemed more remote than ever, the government nevertheless introduced many oppressive measures designed to promote assimilation and enhance the authority of Indian affairs officials in daily reserve life. It soon became evident, however, that past policies of civilization and assimilation had failed to eliminate the collective identity of Indians. This sense of failure was compounded by the diversion of official attention from Indian policy during the depression and the war years. Far from vanishing through enfranchisement and assimilation, Indians were increasing in number, and existing reserves, with their limited resources, were less and less able to support this growth. The Indian affairs bureaucracy had no policies other than civilization and assimilation with which to cope with the continuing presence of Indian communities and their burgeoning populations. By the 1940s it had become abundantly clear that Indian affairs were in disarray. The end of the Second World War and the creation of the United Nations unleashed a national mood of egalitarianism and a growing interest in individual human rights. This national mood coincided with public awareness of the strong contribution of Indian servicemen to the Canadian war effort, and public interest in Indian issues grew. Many called for a royal commission to review and revise the Indian Act and put an end to what was seen increasingly as discriminatory legislation. In response, the federal government established a joint committee of the Senate and the House of Commons to examine the general administration of Indian affairs. Its mandate included an examination of treaty rights and obligations; band membership issues; taxation of Indians; enfranchisement; Indian voting rights; encroachment on Indian reserve lands; Indian day and residential schools; and any other matter having to do with Indian social and economic issues that ought to find a place in a new Indian Act. The failure of the mandate to refer to issues of importance to Indians, such as self-government and the limited power of band councils, reveals the committee's egalitarian thrust. Committee members came to the proceedings with a decided bent in this direction. The co-chairman, for example, commented as follows early in the first year of hearings: And I believe that it is a purpose of this committee to recommend eventually some means whereby Indians have rights and obligations equal to those of all other Canadians. There

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should be no difference in my mind, or anybody else's mind, as to what we are, because we are all Canadians.115 The challenge for the Joint Committee would be to recommend equality without forcing Indians to abandon their heritage and collective and constitutional rights. At the outset, committee members decided as a matter of policy to hear first and foremost from government officials and experts, particularly Indian branch officials. Early on, however, they made an exception by hearing Andrew Paull, then president of the newly formed North American Indian Brotherhood and a long-time Indian rights activist in British Columbia. His testimony was dramatic, for rarely had articulate Indian leaders been given a chance to be heard on the national stage before. Noting that the Joint Committee was not the independent royal commission that Indians and others had been calling for, Paull also emphasized the absence of Indian representatives on the committee and the fact that its mandate did not include the issues of greatest concern to Indians. Moreover, with respect to the guiding philosophy for Indian policy, Paull challenged the Joint Committee to decide from which perspective it would deal with Indians: as wards or citizens. He also focused on Canada's abandonment of the nation-to-nation relationship of equality embodied by the treaties and on the lack of meaningful self-government on reserves. In Paull's view, the answers to these questions would determine the committee's ultimate response to other issues surrounding the overall relationship between Indians and the federal government. In short, he challenged committee members to abandon the historical assumptions underlying Canadian Indian policy in favour of a model more in harmony with Indian aspirations. Paull's brief included several recommendations that have since become familiar: ending the Indian branch's power to determine band membership; continuing the taxation exemption; abolishing denominational schools on-reserve; decentralizing the Indian branch and generally hiring more Indians in administrative capacities; empowering band councils to act as local governments, including the power to police reserves; and granting Indians the right to vote in federal elections, with the possibility of electing their own Indian members to the House of Commons. The most important thing in Paull's view, however, was to give Indians a greater degree of control over their own lives, free of government interference. Following Paull's testimony, a motion to permit five Indian observers drawn from across Canada to monitor committee sessions was defeated, although Indian witnesses and briefs were welcomed. This was the first time in Canadian history that the federal government made any systematic effort to consult with Indians. Indians attempted to make themselves heard. Sometimes this was with great difficulty, as it appears that on some reserves the Indian branch refused access to band funds for this purpose. As a result, most Indian evidence was in the form of letters to the committee, although several Indian bands and associations did manage to send representatives to testify on their behalf.

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Indian submissions were varied, covering a broad range of issues and expressing a variety of political philosophies. Many focused on the nation-to-nation relationship and on the sanctity of treaties, criticizing the Indian Act regime. Others seemed to accept the general legitimacy of the Indian Act but called for increased band council powers. Still others appeared to accept the act to a greater extent and focused on incremental changes to particular provisions. The range of views expressed makes it impossible to speak of a single Indian position. There was a consistent focus, however, on the political relationship between Indians and the federal government as reflected in issues such as respect for treaties and Aboriginal rights and an end to the domination of reserve life by government bureaucrats. On one issue there was virtual unanimity: the need for a greater degree of local autonomy and self-government. Diamond Jenness, an anthropologist and senior federal civil servant, took an entirely different approach, however, and one that was more in keeping with historical assimilation policy. In retrospect, it is clear that he and like-minded non-Indian witnesses carried the day. His testimony focused on the reserve system as the aspect of Indian policy that was the greatest impediment to Indians attaining equality with non-Indians in Canadian society. Jenness proposed a 25-year plan "to abolish, gradually but rapidly, the separate political and social status of Indians (and Eskimos); to enfranchise them and merge them into the rest of the population on an equal footing".116 The plan called for placing Indian children in provincial schools; delivering social services to Indians in the ordinary way, primarily by the provinces; having a committee study reserves across Canada with a view to abolishing them and enfranchising the inhabitants; and improving education for Indians in the North. In 1948, giving little indication that it had heard or comprehended the views expressed before it by Indian people and their organizations, and in language reminiscent of the assumptions of an earlier era, the Joint Committee declared with respect to its proposals for reform of the Indian Act that "All proposed revisions are designed to make possible the gradual transition of Indians from wardship to citizenship and to help them to advance themselves."117 The gulf between the perspectives and philosophies of most of the Indian testimony and those of committee members is startling. It is nothing less than the difference between greater Indian self-government and the revitalized goal of assimilation. It appears that the Joint Committee simply adopted and strengthened certain aspects of historical policies, clothing them in new rhetorical garments.

11. The 1951 INDIAN ACT Revision The present-day Indian Act is the result of the major revision that occurred in 1951, following the Joint Committee process. It has been bolstered by a number of incremental amendments since then. Ironically, but in keeping with the tone of the non-Indian testimony to the Joint Committee, it is generally accepted that the net effect of the 1951 revision was to return Canadian Indian legislation to its original form, that of the 1876 Indian Act. The 1876 and 1951 versions are very similar in essential respects.

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For example, although the number of powers that can be exercised by the minister of Indian affairs and the governor in council was reduced in 1951, their authority nonetheless remained formidable, with administration of more than half the act being at their discretion. In the current version of the act, nearly 90 provisions give the minister of Indian affairs a range of law-making, quasi-judicial and administrative powers in allimportant areas. In addition, another 25 provisions give the governor in council wide powers, including that of making regulations in areas otherwise covered by band council by-law authority. Expropriation powers were significantly reduced, although where a federal or provincial law authorizes a province, municipality or local authority to expropriate land, the governor in council can still permit reserve lands to be expropriated without band consent. The Kruger case, described earlier, offers graphic evidence of the high-handed way this power has sometimes been used. This power is strongly criticized by Indians as a derogation from the Crown duty of protection of their land base and political autonomy. The 1951 revision also removed the prohibition on traditional dances and appearing in exhibitions and stampedes. Somewhat paradoxically, however, Indians in western Canada still needed official permission to sell their livestock and produce, and this provision remains in the act, although it is no longer applied. Importantly, the definition of Indian status and control of band membership remained in non-Indian hands, and the definitions were actually tightened up for financial reasons by introducing an Indian register as a centralized record of those entitled to registration as an Indian (and to the receipt of federal benefits). This enabled federal officials to keep track of reserve populations and to remove non-status Indians and others. Before this, federal officials had kept various records, such as treaty and interest distribution lists, estates administration, band membership and 'half-breed' scrip records, but had attempted no comprehensive listing of Indians. The mention of "Indian blood", which had been a feature of the act's definition section since 1876, was replaced by the notion of registration, with a strong bias in favour of descent through the male line. At the time the new registration system was introduced, the practice according to the provisions of the 1951 Indian Act was to use the existing band lists as the new "Indian Register" called for by the act. These lists may have been band fund entitlement lists, treaty pay lists or similar records. Given the relative informality and lack of comprehensive documentation at the time, they were not by any means complete lists of status Indians or of those entitled to legal status as Indians. The lists were to be posted "in a conspicuous place in the superintendent's office that serves the band", and six months were given for additions, deletions and protests before the band list was finalized as the basis for the Indian register. In addition, a general list of Indians without band affiliations was kept in Ottawa. The registrar could add to or delete names from that list, under his own authority, or from band lists through application of the status rules in the new act.118

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The names of many people who ought to have been on the band lists or the general list were never added. They may, for example, have been away from the reserve when band lists were posted. In remote places, especially where people still practised a subsistence lifestyle, people could have been away on hunting parties, fishing or on their traplines. Such people were also the least likely to have been able to read in the first place. Some people were opposed to any form of registration, seeing it as a derogation from the historical status of Indian nations. Sometimes, it has been argued, the "conspicuous place" called for in the Indian Act was less conspicuous than it ought to have been. In any event, and for whatever reason, many people claim that they or their parents or grandparents were never included on these lists when they should have been and that they were prevented later from obtaining Indian status.119 Under the new status rules the definition of Indian was made even more restrictive as far as women were concerned. A good example is the so-called 'double mother' rule in subsection 12(1)(a)(iv), whereby a child lost Indian status at age 21 if his or her mother and grandmother had obtained their own status only through marriage. In short, someone born and raised on a reserve, whose father and grandfather were status Indians, would automatically lose Indian status at the age of 21. Upon loss of status, band membership too would be forfeited, as well as the right to continue to live on the reserve. The double mother rule applied to all women without Indian status. Thus it included women who might have been enfranchised involuntarily or left off band lists through inadvertence or otherwise, or who were simply unable to qualify under the Indian Act, despite being of Indian descent. A good example of the latter situation would obtain at the Mohawk reserve at Akwesasne if the mother and grandmother in question were both from the U.S. side of the reserve. The 21-year-old grandchild would lose Indian status in Canada automatically, even though he or she might be Mohawk by ancestry, language and culture. The legal fiction involved in registration and Indian status becomes evident in such cases. Voluntary and compulsory enfranchisement were kept in the 1951 revisions, although the compulsory element was weakened: the minister could enfranchise an Indian or a band only upon the advice of a special committee established for that purpose. If the committee found that the Indian or band was qualified and that enfranchisement was desirable, the person or band in question would be deemed to have applied for enfranchisement. According to Indian affairs officials, no band was ever forced to enfranchise through this provision, although the threat was present until enfranchisement was dropped from the Indian Act after 1985. One band, however, did choose to enfranchise as a group using the voluntary enfranchisement procedures in the 1951 Indian Act. In 1958 the members of the Michel Band of Alberta voluntarily renounced their Indian status in law, taking most of their reserve land in individual lots along with the proceeds of the sale of the remaining lands. The enfranchisement of this band solved one set of problems for Indian affairs officials, since it meant that there would no longer be an entity to pursue land claims based on some doubtful reserve land transactions from the past. However, it caused problems for

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the descendants of the enfranchised band members, many of whom regained status through the 1985 amendments. These people have Indian status but no band and no reserve to return to as a result of a decision taken nearly 40 years ago. They have no standing to pursue land claims, since the government's specific claims policy states that only the chief and council of a band can apply to enter the negotiation process.120 Returning to the 1951 Indian Act, Indian women on-reserve could now vote and, in that limited way, participate in band political life. In addition, the provision that had prohibited Indian women from voting on land surrenders was amended to permit women to participate on equal terms with men. However, the discriminatory features of the old acts regarding Indian women who married out were actually strengthened in aid of the overall assimilation policy. The administration of Indian estates was simplified in the 1951 act to bring it more in line with provincial law. However, where Indian women who married out were enfranchised involuntarily, they also lost the right not only to possess reserve land but to inherit it. In such cases, the land would be sold to an 'Indian' and the proceeds forwarded to the enfranchised woman, even if she had divorced the non-Indian man or had been widowed before inheriting the land. The part of the Indian Act incorporating the former Indian Advancement Act was dropped, with some elements incorporated into the provisions on band council powers. As before, the minister could impose the elective system on a band (now with two-year terms for chief and council). Band council authority was still limited, but bands that had reached "an advanced stage of development" could acquire additional powers, such as authority to tax local reserve property. The current version continues the limited band council powers but has dropped the requirement that a band be "advanced" before it is permitted to pass local property taxation and business licensing by-laws to generate revenue for band purposes. The 1951 revision also reinforced the prohibition on Indian intoxication, making it an offence for an Indian to be in possession of intoxicants or to be intoxicated, whether onor off-reserve. Obviously, this was far more draconian than the alcohol laws applicable to non-Indians. Ultimately, of course, these provisions were struck down by the Supreme Court. They were replaced in 1985 by band council authority to regulate alcohol questions. One of the most significant changes concerned the new section 87 (now section 88), which incorporated provincial laws of a general nature and made them part of the Indian Act legal regime. Thus, whenever a provincial law dealt with a subject not covered by the Indian Act, such as child welfare matters, Parliament would allow the provincial law to apply to Indians on-reserve. Through this route, the provinces made inroads into what was previously a federally protected area. Provincial laws could be prevented from applying only if they were not "laws of general application" in a constitutional sense, if there existed contrary treaty provisions, or if the Indian Act or its regulations or by-laws

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dealt with the same area and conflict arose between the provincial law and the Indian Act provision, regulation or by-law. Section 88 continues in today's version of the act, giving the provinces law-making powers in areas that they would not normally be able to deal with in regard to Indians. This provision is the source of much criticism from Indians and of accusations that the federal government has almost completely abandoned its role of protecting Indian autonomy from the provinces.

12. The Modern Era: Contrasting Assumptions and Models of SelfGovernment From the 1950s on, Aboriginal policy development in Canada entered a confusing stage as the continuing policies of civilization and assimilation came into increasing conflict with the desire of Indian nations to resume control over social and political processes in their own communities and with newer ideas derived from the evolution of the international indigenous movement. Thus, until 1969, assimilation was still the dominant federal policy, although by then the federal government was using terms such as 'equality' and 'citizenship' instead of the more brutal language of the earlier era. After 1969 and the disastrous white paper, described earlier in this chapter, Canada seems to have adopted a new approach and is moving toward a policy based on true nation-to-nation negotiations. However, as discussed in this section, it is less clear that the old ideas of assimilation are dead. Following the 1951 revision of the Indian Act, a number of the other recommendations of the 1946-48 Joint Committee were implemented during the 1950s. For example, a cooperative effort was undertaken with the provinces to extend provincial services to Indians. Since then, of course, it has become accepted that Indians are provincial residents for purposes of service delivery. However, it also appears that the federal government has continued to accept the desirability and inevitability of Indians becoming full-fledged provincial residents. In 1959 the federal government struck another joint parliamentary committee to examine the Indian Act. Indian affairs officials prepared a report, A Review of Activities, 19481958, and submitted it to the Joint Committee. It outlined progress since the last joint committee report of the 1940s. After noting the various initiatives in progress with the provinces on sharing or transferring programs, the document indicated that, by 1959, 344 bands were using the elective system under the Indian Act, and 22 bands had been given authority to raise and spend band funds. More interestingly, enfranchisement figures were given that showed a vastly increased number of forced enfranchisements since 1951. For example, in the entire period between 1876 and 1948 there were 4,102 enfranchisements, while an additional 6,301 occurred after the restrictive provisions of the new act were introduced in 1951.121 The figure for involuntary enfranchisements would continue to rise until 1975, when the practice was suspended. Although taken as a sign of progress, these figures reflect for the most part the effect of the marriage provisions, whereby Indian

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women who married out and their descendants lost status through automatic enfranchisement. The 1959 Joint Committee hearings repeated to a considerable extent those of the previous decade. Thus, virtually all Indian submissions, whether from Indian associations or individual band councils, reiterated Indian concerns about reserve conditions, administrative red tape, land claims, violation of treaties, and unsettled Aboriginal land title issues. For Indians, the solutions also remained as they had been presented to the earlier committee. In particular, Indian submissions stressed the continuing need for enhanced powers of self-government and less Indian branch interference in local reserve life. Nonetheless, as with the earlier committee, that of 1959-61 came down firmly in favour of continuing on the path of preparing Indians for full participation in Canadian society, without distinction based on their Indian descent and their special constitutional status. In short, Indians were not seen as members of more or less permanent and distinct political units within the Canadian federation. Rather, they were considered members of a disadvantaged racial minority, to be encouraged and helped to leave their inferior status behind through social and economic evolution. Reserves and Indian status were transitional devices on the road to absorption within mainstream society. Assimilation was still the goal, although it was now solidly recast in the more felicitous language of citizenship and equality: The time is now fast approaching when the Indian people can assume the responsibility and accept the benefit of full participation as Canadian citizens. Your Committee has kept this in mind in presenting its recommendations which are designed to provide sufficient flexibility to meet the varying stages of development of the Indians during the transition period.122 The Joint Committee reported in 1961, recommending, among other things, greater equality of opportunity and access to services for Indians, the transfer of education and social services to the provinces, the imposition of taxes on reserve, more social research, more community planning and development studies, a formal federal-provincial conference to begin the transfer of social services to the provinces, the establishment of a claims commission, Indian advisory boards at all levels, and the striking of another parliamentary committee to investigate Indian conditions in seven years' time. Only one significant Indian Act amendment came out of this exercise: in 1961 compulsory enfranchisement for men and for bands was finally eliminated. If this represented one model — a continuing emphasis on assimilation — the vision contained in the comprehensive Hawthorn report on Indian conditions in Canada represented what was for non-Indian reformers a radical new vision.123 This 1966 report confirmed what had by then become obvious: Indians and their reserve communities had not been assimilated, although their "lonely splendour as isolated federal islands surrounded by provincial territory" had begun by then to be overtaken by the provincially administered welfare state emerging in Canada. Indian communities were actually

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increasing in population, so much so that many Indians were forced to leave the reserves for the cities. Both trends have continued. In 1967, nearly 80 per cent of status Indians lived on their reserves; today less than 60 per cent do. The solution to the Indian problem proposed by the Hawthorn report was to abandon assimilation as a formal goal of Indian policy. Instead, and in keeping with its view that Indian communities were already part of the provinces in a jurisdictional as well as a physical sense, it proposed building on the band council system to prepare reserve communities to become provincial municipalities. The authors were sceptical about a wide-ranging Indian right of self-government, concluding that the "best Indians can hope for is the limited control and autonomy available to small communities within a larger society, plus sympathetic consideration of their common and special needs by higher levels of government."124 The Hawthorn report did not accept the inevitability or desirability of individual assimilation and proposed instead the concept of "citizens plus" whereby, in addition to the ordinary rights and benefits to which all Canadians have access, the special rights of Indians as "charter members of the Canadian community" would be respected. The "charter rights" of Indians were traced back to the bargain made by the historical tribal nations: in exchange for allowing non-Indian settlement of the lands, Indians would be guaranteed Crown protection and special status within the imperial system. Earlier in this chapter we described this view in terms of the imperial tripartite system, developed on the basis of the Crown undertaking in the Royal Proclamation of 1763. Thus, the view of the Hawthorn report appears in retrospect to be one of collective absorption of Indians into provincial municipal structures. Indians would retain certain federal protections over their lands and would remain Indians. Nonetheless, Indians were expected to develop new and permanent links with the provinces as the historical link to the federal Crown was gradually severed in favour of what the authors believed was the inevitability of greater provincial involvement in reserve matters through program and service delivery. Indians did not see this process as inevitable, however, and they made this clear to the next important parliamentary committee struck to examine Indian issues — the 1983 Special Committee on Indian Self-Government, chaired by Keith Penner, MP.125 In between the Hawthorn report and the Penner report, Canada patriated its constitution from Great Britain, adding the Constitution Act, 1982 and its recognition and affirmation of existing Aboriginal and treaty rights in section 35. This was the context in which Indian nations formulated their views to the Penner committee. What they wanted, and what the Penner committee recommended, was the immediate recognition of Indian First Nations as a distinct, constitutionally protected order of government within Canada and with a full range of government powers. In short, their vision was a return to that of the imperial tripartite system: a status equal to that of the colonies (now provinces), with the federal Crown in the role of protector originally assumed by imperial authorities.

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Thus, the Penner report proposed an active and protective federal role to recreate the original partnership that Indians have never ceased to call for. As the protector and guarantor of Indian self-government, the federal Crown would pass legislation that under normal constitutional paramountcy rules would oust the provinces from regulating anything to do with "Indians, and Lands reserved for the Indians" under section 91(24) of the Constitution Act, 1867. Having secured a space in which to legislate exclusively for Indians, Parliament would withdraw its laws to allow the laws of federally recognized self-governing Indian First Nations to regulate matters occurring on Indian reserves. Ultimately, the Penner committee saw Indian First Nations as equivalent to provinces. Thus, in the same way that provinces are immune from each other's law-making powers, Indian First Nations laws and provincial laws would have had no effect on each other. In the event of conflict, federal laws in the same areas would be paramount over Indian First Nations laws, as is the case with provincial laws. The federal government would support Indian First Nations programs, services and operations through a system of grants like those available to the provinces under the rules of fiscal federalism. Eventually, the whole arrangement would be entrenched in the constitution. Neither the federal government nor the provincial governments endorsed the approach of the Penner report. Instead, in recent years they have supported legislation like the CreeNaskapi (of Quebec) Act, passed by Parliament in 1984, conferring a form of delegated self-government on the Cree and Naskapi peoples of Quebec.126 These powers, like those conferred subsequently on the Sechelt Band by the 1986 Sechelt Indian Band SelfGovernment Act,127 resemble the municipal-style powers that the Hawthorn report saw Indian reserve communities exercising. They are most definitely not the wider powers that Indians have been seeking, which would restore them to the self-governing status they enjoyed before the Gradual Enfranchisement Act of 1869. In this vein, the federal government formally adopted a Hawthorn-style municipal approach in the Community-Based Self-Government Policy of 1986. With the exception of the Yukon self-government agreements, this policy has not been a successful one. While the 1992 Charlottetown Accord, had it been adopted, would have seen constitutional recognition of Aboriginal governments as a third order within the Canadian federation, it is less clear that the powers that would have been available to Aboriginal governments would have embraced the same range of law-making authority available to the provinces. Thus, it seems clear that there is a certain continuing reluctance on the part of federal and provincial governments to embrace fully the vision of Indian nations as a true third order as envisaged by the Penner report.

13. Conclusion In the twentieth century as in the nineteenth, it is apparent that Indian and non-Indian perspectives on the fundamental issue of the place of Indians within the Canadian federation remain to be reconciled. Although massive attempts have been made in past decades to carve out a space within which Indian self-governing powers might operate in many ways in a renewed Canadian federation, and to repeat our earlier observations

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about the formulation of Indian policy more generally, it has all too often been a dialogue of the deaf — neither side has heard or fully comprehended the other. Aboriginal and non-Aboriginal people, operating from the different cultural perspectives highlighted in the first seven chapters of this volume, often do not appear to be speaking the same language when they sit around the negotiating table to discuss self-government and constitutional issues. In many ways, this difference in perspectives is captured by the way fundamental issues are typically formulated in the self-government context. For Indians the most common formulation goes as follows: "Show us in terms of international or domestic Canadian constitutional law why your assumption of jurisdiction over Indian tribal nations is justified." For the federal and provincial governments the formulation would more typically be as follows: "Show us precisely how you think your powers — inherent or delegated — will operate in the context of the current division of powers, lands and resources in the Canadian federation." It is clear that each side starts from fundamentally different assumptions. For Indians, the original assumption that they are partners in the exercise of sharing the land of Canada and in building a society based on areas of exclusive and shared sovereignty has continued almost unabated since the time of the Royal Proclamation of 1763. For the federal and provincial governments, which have benefitted from the use and exploitation of the lands and resources of this continent, the assumption seems to be that Indians must make a case for themselves as entities fit to participate as governments in their own right in the joint enterprise now known as Canada. It is true, as Tom Siddon, a former minister of Indian affairs, has observed, that there can be no real change within the confines of the Indian Act.128 However, it is equally true that even if the Indian Act were repealed, there could be no real change without repeal of the attitudes and assumptions that have made legislation like the Indian Act and its precursors possible. A royal commission cannot make laws. It can inform and recommend, however. In that role, we can call attention to the factors, attitudes and continuing assumptions that brought about the Indian Act and that continue to prevent progress in moving away from the restrictive Indian Act vision. Those factors are to be found in past assumptions and the shadows they have cast on present attitudes. They must be recognized for what they are and cast away as the useless legacy of destructive doctrines that are as inappropriate now as they were when first conceived. If this review of the foundations of the Indian Act has shown these assumptions for what they are, it will have succeeded as the first step in entering a new era of partnership between governments and Indians. Paradoxically, this new partnership is also a very old partnership, indeed, older than the Indian Act and what it represents. In subsequent volumes of our report we outline how we believe the renewed partnership we have called for can be implemented. In Volume 2, Chapter 3 in particular, we return to a discussion of the Indian Act and its future in the context of Aboriginal selfgovernment. Before doing so, however, the full range of factors that have led to the

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present impasse in the relationship have to be addressed. One of the most important of these is the destructive experience for Aboriginal people of the industrial and residential schools that were so prominent a part of the civilizing and assimilation programs described in general terms in this chapter. It is to these schools and to their legacy that we now turn.

Notes: 1 Royal Commission on Aboriginal Peoples [RCAP], Partners in Confederation: Aboriginal Peoples, Self-Government, and the Constitution (Ottawa: Supply and Services, 1993). 2 In the matter of a reference as to whether the term “Indians” in head 24 of section 91 of the British North America Act, 1867, includes Eskimo inhabitants of the province of Quebec, [1939] S.C.R. 104, commonly referred to as Re Eskimos. The federal government, however, has explicitly excluded Inuit from the Indian Act since the 1951 revisions (S.C. 1951, chapter 29, section 4) and instead delivers federal programs and services to them through the Department of Indian Affairs and Northern Development under its mandate for northern development. 3 See, to this effect, Bradford W. Morse and John Giokas, “Do the Métis fall within section 91(24) of the Constitution Act, 1867 and, if so, what are the ramifications in 1993?”, research study prepared for the Royal Commission on Aboriginal Peoples [RCAP] (1993) and published in Aboriginal Self-Government: Legal and Constitutional Issues (RCAP: 1995). For information about RCAP publications and research studies, see A Note About Sources at the beginning of this volume. 4 St. Catharines Milling and Lumber Company v. The Queen, [1887] 13 S.C.R. 577 at 652 per Gwynne J. 5 Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313 at 395 per Hall J. 6 These constitutional documents are the Manitoba Act, 1870, R.S.C. 1985, Appendix II, No. 8; the Rupert’s Land and North-Western Territory Order (1870), R.S.C. 1985, Appendix II, No. 9; the British Columbia Terms of Union (1871), R.S.C. 1985, Appendix II, No. 10; The Ontario Boundaries Extension Act (1912), S.C. 1912, chapter 40; The Quebec Boundaries Extension Act, 1912, S.C. 1912, chapter 45; and the Constitution Act, 1930, R.S.C. 1985, Appendix II, No. 26. 7 The Task Force on Canadian Unity, A Future Together, Observations and Recommendations (Ottawa: Supply and Services, 1979), p. 56 [emphasis in original].

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8 Department of Indian Affairs and Northern Development [DIAND], Statement of the Government of Canada on Indian Policy, 1969 (Ottawa: Queen’s Printer, 1969) [hereafter, the white paper]. 9 Harold Cardinal, The Unjust Society, The Tragedy of Canada’s Indians (Edmonton: M.G. Hurtig Ltd., 1969), p. 140. 10 Department of Indian Affairs, Annual Report, 1870, p. 4, quoted in Wayne Daugherty and Dennis Madill, Indian Government under Indian Act Legislation 1868-1951 (Ottawa: Research Branch, Department of Indian Affairs and Northern Development, 1980), p. 2. 11 The commissions of inquiry that laid the foundation for Indian policy before Confederation are reviewed and assessed in John Leslie, Commissions of Inquiry into Indian Affairs in the Canadas, 1828-1858: Evolving a corporate memory for the Indian department (Ottawa: Indian Affairs and Northern Development, 1985). There were six commissions of inquiry into Indian policy between 1828 and 1858, all conducted in response to what was becoming known as the ‘ Indian problem ’. The first report was somewhat rushed and rudimentary and was prepared in 1828 by Major General Darling, military secretary to the governor general, Lord Dalhousie. It covered both Upper and Lower Canada and led to the establishment of the reserve system as official policy. The second was prepared by a committee of the Lower Canada Executive Council in 1837 and essentially followed the recommendations of the earlier Darling report. In 1839, the third report was prepared by Justice James Macauley and dealt with conditions in Upper Canada. It too generally supported the reserve and civilization policies of the time. A committee of the Upper Canada Legislative Assembly prepared the fourth report in response to Lord Durham’s report on conditions in the two Canadas, arriving at conclusions similar to those of the preceding report by Justice Macauley. The fifth, and by far the most important, was the 1844 report of Governor General Sir Charles Bagot, which covered both Upper and Lower Canada. Its recommendations gave a direction to Canadian Indian policy that has endured in many respects right up to the present. A sixth report was prepared in 1858 by Richard Pennefather, civil secretary to the governor general. It too covered both Canadas and was the most thorough report on Indian conditions to that point. 12 The 1969 white paper (cited in note 8) was devised in secret by federal public servants and politicians. Its proposals went completely against recommendations flowing from contemporaneous and wide-ranging consultations with Indian people across Canada, leading to feelings of betrayal. For a detailed examination of the secrecy and apparent duplicity of federal policy making with respect to this initiative, see Sally M. Weaver, Making Canadian Indian Policy: The Hidden Agenda 1968-70 (Toronto: University of Toronto Press, 1981). 13 A Survey of the Contemporary Indians of Canada: A Report on Economic, Political, Educational Needs and Policies in Two Volumes, ed. H.B. Hawthorn (Ottawa: Indian Affairs Branch, 1966), volume 1, p. 344.

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14 White paper (cited in note 8), p. 5. 15 In Bill C-31 (1985), the status and band membership provisions were amended to eliminate sex discrimination and to allow bands to control their membership if they wished. However, the basic philosophical premise of that section of the Indian Act remained unchanged from when the act was passed originally in 1876. The issue of who is recognized as an ‘Indian’ and which groups of Indian people are recognized as ‘bands’ is still under exclusive federal government control. See sections 5-14.3 of the Indian Act, R.S.C. 1985, chapter I-5, as amended. 16 Recent years have seen a spate of scholarly revisions of the simplistic and largely contrived story of the clash of ‘civilization’ and ‘savagery’ that was put forward by generations of narrow-minded clergymen, politically oriented propagandists and romantic frontier novelists. Two particularly powerful debunkings of these conventional histories are Francis Jennings, The Invasion of America: Indians, Colonialism, and the Cant of Conquest (Chapel Hill, N.C.: University of North Carolina Press, 1975); and Robert A. Williams, Jr., The American Indian in Western Legal Thought, The Discourses of Conquest (New York: Oxford University Press, 1990). 17 There has been no uniform pattern in Canada for the creation of Indian reserves. Some were set aside by religious orders for converted Indians, some were created as refuges by imperial or colonial authorities for Indians fleeing other areas of Canada, some were created by treaty with the Crown, some were purchased from private individuals or from a colonial or provincial government, others were created by provincial governments after Confederation, while still others were simply recognized as such by the Crown. The Indian Act itself has no mechanism for the creation of reserves. Rather, new reserves are created or, if already in existence, legally affirmed under the Crown prerogative power. After Confederation, the federal Crown was unable to use its jurisdiction over Indian lands in the Constitution Act, 1867 to create reserves unilaterally, since after 1867 the land was vested in the provincial Crown under section 109. Joint federal-provincial action was required. The nature and conditions of that joint action are reflected in various federal-provincial agreements and vary somewhat from province to province. For a fuller discussion of the reserve system, see Richard Bartlett, Indian Reserves and Aboriginal Lands in Canada: A Homeland (Saskatoon: University of Saskatchewan Native Law Centre, 1990); and Jack Woodward, Native Law (Toronto: Carswell, 1994). See also Chapter 4 in this volume. 18 R. v. Sioui, [1990] 1 S.C.R. 1025 at 1053. 19 The most accurate text of the Proclamation is provided in Clarence S. Brigham, ed., British Royal Proclamations Relating to America, Transactions and Collections of the American Antiquarian Society (Worcester, Mass.: American Antiquarian Society, 1911), volume 12, pp. 212-218. A less accurate version is reproduced in R.S.C. 1985, Appendix II, No. 1. The original text, entered on

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the Patent Roll for the regnal year 4 George III, is found in the United Kingdom Public Record Office, c. 66/3693 (back of roll). The complete text of the Royal Proclamation is provided in Appendix D at the end of this volume. 20 This formulation first appeared in the seminal case Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1 (1831), and has been elaborated and refined ever since by a long and still growing line of court decisions in the United States. Academic commentators are divided on whether the courts have done justice to Indian aspirations through this verbal formula. A relatively positive appraisal is given in Charles F. Wilkinson, American Indians, Time, and the Law (New Haven: Yale University Press, 1987). A more negative conclusion has been reached by Russell Lawrence Barsh and James Youngblood Henderson, The Road: Indian Tribes and Political Liberty (Berkeley: University of California Press, 1980). 21 No reserve was established in Newfoundland until 1984, since neither the federal nor the provincial government recognized the existence of a status Indian community until the Miawpukek Band of Conne River was declared to be a band by the federal government that year. The Mi’kmaq themselves claim that from 1870 a colonial ‘reserve’ had existed at Conne River, thereby indicating that they were a recognized Indian community. See Adrian Tanner, John C. Kennedy, Susan McCorquodale and Gordon Inglis, “Aboriginal Peoples and Governance in Newfoundland and Labrador”, research study prepared for RCAP (1994). 22 Regarding the creation of Indian reserves under the French regime, see G.F.G. Stanley, “The First Indian ‘Reserves ’ in Canada”, Revue d’histoire de l’Amérique française 4/2 (September 1950), pp. 168-185. See also note 17. 23 National Archives of Canada [NAC], Record Group 10 [RG10], volume 5, described in Leslie, Commissions of Inquiry (cited in note 11), p. 20 and following. 24 NAC RG10, “An address to our Great Father, Sir Peregrine Maitland from the Mississauga Nation residing on the River Credit”, 2 January 1827, quoted in Leslie, Commissions of Inquiry, p. 16. 25 The Lower Canada Executive Committee; see note 11. 26 AN ACT for the protection of the Lands of the Crown in this Province, from trespass and injury, The Statutes of Upper Canada to the Time of the Union, volume 1 — Public Acts (1839), chapter15. 27 Alexis de Tocqueville, Democracy in America, ed. J.P. Mayer, trans. George Lawrence (New York: Harper & Row, 1969), p. 334. 28 Province of Canada, Journals of the Legislative Assembly of Canada, 1844-1845, Appendix EEE, “Report on the Affairs of the Indians in Canada”, 20 March 1845, quoted in Leslie, Commissions of Inquiry (cited in note ), pp. 81-96. See also John Leslie, “The

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Bagot Commission: Developing a Corporate Memory for the Indian Department”, in Historical Papers 1982, A Selection from the Papers Presented at the Annual Meeting Held at Ottawa, 1982 (Ottawa: Canadian Historical Association, 1983), pp. 31-52. 29 An Act respecting the Management of the Indian Lands and Property, Statutes of the Province of Canada 1860, chapter 151, section 1. 30 An Act for the better protection of the Lands and Property of the Indians in Lower Canada, Statutes of the Province of Canada 1850, chapter 42; An Act for the protection of the Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury, Statutes of the Province of Canada 1850, chapter 74. 31 An Act to repeal in part and to amend an Act, intituled, An Act for the better protection of the Lands and property of the Indians in Lower Canada, Statutes of the Province of Canada 1851, chapter 59, section II. 32 An Act to amend and consolidate the laws respecting Indians, S.C. 1876, chapter 18, section 3: 3. The term “Indian” means First. Any male person of Indian blood reputed to belong to a particular band; Secondly. Any child of such person; Thirdly. Any woman who is or was lawfully married to such person--33 Province of Canada, Journals of the Legislative Assembly of Canada, Sessional Papers, Appendix 21, “Report of the Special Commissioners---” (Toronto: 1858), quoted in Leslie, Commissions of Inquiry (cited in note 11), pp. 129-172. 34 United Kingdom, House of Commons, Parliamentary Papers, volume XLIV, no. 595, “Copies or Extracts of Correspondence between the Secretary of State for the Colonies and the Governor General of Canada respecting Alterations in the Organization of the Indian Department of Canada” (London: 1860), p. 1, quoted in Leslie, Commissions of Inquiry, p. 138. 35 Quoted in Leslie, Commissions of Inquiry, pp. 143, 144. 36 Interim Report, Richard Pennefather to Governor General Sir Edmund Head, Parliamentary Papers (cited in note 34), quoted in Leslie, Commissions of Inquiry, p. 138. 37 The net result of these measures in Manitoba was the elimination of any system of communally held Métis land. For a more detailed discussion of Métis issues, see Volume 4, Chapter 5. See also Paul L.A.H. Chartrand, Manitoba’s Métis Settlement Scheme of 1870 (Saskatoon: University of Saskatchewan, Native Law Centre, 1991). 38 An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians, S.C. 1857, chapter 26.

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39 NAC RG10, volume 245, part 1, Resident Agent and Secretary of Indian Affairs Letterbooks, statements of Indian leaders contained in communication from D. Thorburn to R. Pennefather, 13 October 1858, quoted in John S. Milloy, “A Historical Overview of Indian-Government Relations 1755-1940”, discussion paper prepared for the Department of Indian Affairs and Northern Development, 7 December 1992, p. 61. 40 United Kingdom, Parliamentary Papers, Aborigines, volume 2, “Report of the Select Committee of the House of Commons on the Aborigines of the British Settlement” (1837), p. 77. See also Richard Bartlett, Subjugation, Self-Management and SelfGovernment of Aboriginal Lands and Resources (Kingston: Institute of Intergovernmental Relations, Queen’s University, 1986), p. 27. Very similar language was used 50 years later in United States v. Kagama, 118 U.S. 375 (1886), the leading U.S. Supreme Court decision justifying congressional plenary power over Indians as a way of protecting them from the local settler populations (p. 384): They owe no allegiance to the States, and receive from them no protection. Because of the local ill-feeling, the people of the States where they are found are often their deadliest enemies. 41 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, S.C. 1868, chapter 42, section 15. 42 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, S.C. 1869, chapter 6. 43 Department of Indian Affairs, Annual Report, 1870, per William Spragge. See Daugherty and Madill, Indian Government (cited in note 10), p. 1. 44 Even today many assert that political matters internal to bands are firmly in the control of a dominant male hierarchy that has had more than a century to consolidate its power. 45 Ultimately, this limiting focus on band-level government would be adopted by Indian peoples themselves. Thus the modern Assembly of First Nations, for example, is made up of the chiefs of the individual band governments first established in 1869 and carried forward into the Indian Act a few years later. 46 In Felix Cohen’s Handbook of Federal Indian Law, 1982 edition, ed. R. Strickland et al. (Charlottesville, Virginia: The Michie Company Law Publishers, 1982), allotment is described (pp. 129-130, footnote omitted) as follows: The allotment concept was not new; Indian lands had been allotted as early as 1633--- Later, allotments were used as a method of terminating tribal existence. Allottees surrendered their interest in the tribal estate and became citizens subject to state and federal jurisdiction. During the 1850s this break-up of tribal lands and tribal existence assumed a standard pattern. Such experiments in allotment served as models for later legislation. The major attempt to

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destroy the basis of separate tribal existence in the United States occurred in 1887 with the passage of the General Allotment Act (25 U.S.C. ss. 331-34, 339, 341, 342, 349, 354, 381), known as the Dawes Act. It provided for compulsory allotment of communally held tribal lands. The allotment policy and process are described in Janet A. McDonnell, The Dispossession of the American Indian 1887-1934 (Bloomington: Indiana University Press, 1991). 47 Location tickets have been replaced on Indian reserves by certificates of possession and occupation in the modern version of the Indian Act, but otherwise the concept is the same. Section 31 of the Manitoba Act, 1870, R.S.C. 1985, Appendix 2, No. 8, provides for the allotment of individual tracts of land to “the children of the half-breed heads of families” as follows: 31. And whereas, it is expedient, towards the extinguishment of the Indian Title to the lands in the Province, to appropriate a portion of such ungranted lands, to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the half-breed residents, it is hereby enacted, that, under regulations to be from time to time made by the Governor General in council, the Lieutenant-Governor shall select such lots or tracts in such parts of the Province as he may deem expedient, to the extent aforesaid, and divide the same among the children of the half-breed heads of families residing in the Province at the time of the said transfer to Canada, and the same shall be granted to the said children respectively, in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine. For a discussion of this provision see Paul L.A.H. Chartrand, “Aboriginal Rights: The Dispossession of the Métis”, Osgoode Hall Law Journal 29 (1991), p. 457, where he states that the section of the Manitoba Act granting land to Métis children “was a ‘fasttrack’ version of the Indian enfranchisement legislation applied in eastern Canada” (p. 470). 48 NAC RG10, Red Series, volume 1934, file 3541, Chairman, General Indian Council (Napanee) to the Minister of the Interior, 16 June 1872, quoted in John Leslie and Ron Maguire, The Historical Development of the Indian Act, second edition (Ottawa: Department of Indian Affairs and Northern Development, Treaties and Historical Research Centre, 1978), p. 54. 49 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 S.C. 1874, chapter 21. 50 An Act to amend and consolidate the laws respecting Indians, S.C. 1876, chapter 18. 51 Department of the Interior, Annual Report for the year ended 30th June, 1876 (Parliament, Sessional Papers, No. 11, 1877), p. xiv.

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52 Its sole provision in this respect is to allow treaty moneys to be paid to Indians out of the Consolidated Revenue Fund. Indian Act, R.S.C. 1985, chapter I-5, as amended, section 72. 53 House of Commons, Debates, Third Session — Third Parliament, 30 March 1876, p. 933. See also Leslie and Maguire, Historical Development (cited in note 48), p. 60. The approach of treating Indians as minors was, of course, also official policy in the United States, the basis of which can be found in the leading Supreme Court case, Worcester v. Georgia, 31 U.S. (8 Peters) 515 (1832), where the relation of the tribes to the United States is described as resembling “that of a ward to his guardian”. That phrase was enlarged upon and used as justification for the imposition of unrestricted federal power over the internal affairs of the tribes in United States v. Kagama, 118 U.S. 375 (1886) at 383-384: These Indian Tribes are the wards of the nation. They are communities dependent on the United States... . From their very weakness and helplessness... there arises the duty of protection, and with it the power. 54 S.C. 1876, chapter 18, section 26.1. 55 George Manuel and Michael Posluns, The Fourth World: An Indian Reality (Don Mills: Collier-Macmillan Canada, Ltd., 1974), p. 123. 56 S.C. 1876, chapter 18, section 63. But the allocation was not valid until approved by the superintendent general, who would issue the actual location ticket under sections 6 and 7. 57 An Act for conferring certain privileges on the more advanced Bands of the Indians of Canada, with the view of training them for the exercise of municipal powers, S.C. 1884, chapter 28. 58 The Mississauga Band, by order in council in 1877. NAC RG10, volume 1079, No. 337, reference in the letterbook of the Deputy Superintendent General, 12 April 1880, quoted in Daugherty and Madill, Indian Government (cited in note 10), p. 4. 59 In modern times this has impeded Indian bands effectively from participating in the larger Canadian economy because of delays in getting access to their own funds for investment and development purposes. 60 The provision for the imposition of punishment continues in the present act. Where there is no local justice of the peace, it is still difficult for band councils to enforce their by-laws.

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61 The Mississauga of the Credit, the Caughnawaga, the Cowichan, Kinolith, Metlekatla, Port Simpson and St. Peter’s reserves, according to Leslie and Maguire, Historical Development (cited in note 48), p. 90. 62 A brief but excellent description of the policies underlying particular measures in the Indian Act is offered in Brian E. Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada (Vancouver: University of British Columbia Press, 1986), particularly the chapter entitled “General Aspects of Policy and Administration”, pp. 37-59. For a more general perspective, see Rémi Savard and JeanRené Proulx, Canada derrière l’épopée, les autochtones (Montreal: Éditions de l’Hexagone, 1982), chapter 3, pp. 91-174. 63 House of Commons, Debates, First Session — Thirteenth Parliament, volume 132, p. 1049 (19 April 1918). See also Brian Titley, A Narrow Vision, p. 41. About two months earlier, former Indian agent and agency inspector William Graham had been appointed commissioner for greater production for the prairie provinces as part of the scheme to improve wartime agricultural production. His powers included developing a production policy for each individual reserve, leasing reserve lands to nonIndian farmers where necessary, and establishing ‘greater production farms ’ on Indian lands expropriated under the War Measures Act and using Indian labour. A grant from war appropriations financed a large part of this overall scheme. 64 NAC RG10, volume 7484, file 25001, part 1, Duncan Campbell Scott to Superintendent General Arthur Meighen, 15 October 1918, quoted in Titley, A Narrow Vision, p. 44. 65 House of Commons, Debates volume 74, 30 March 1906, quoted in Titley, A Narrow Vision, p. 21. 66 The provision is still in the Indian Act (section 64(1)(a)) and is criticized by many Indian people as providing too much of an incentive to Indians to sell their homelands. See The Report of the Commission of Inquiry Concerning Certain Matters Associated with the Westbank Indian Band (Ottawa: Supply and Services, 1988), p. 409. 67 NAC RG10, volume 3617, file 4646-1, Chief Justice H.M. Howell, Manitoba Court of Appeal, to the Governor General in Council, 2 December 1907, quoted in Richard C. Daniel, A History of Native Claims Processes in Canada, 1867-1979 (Ottawa: Research Branch, Department of Indian Affairs and Northern Development, 1980), p. 113. 68 Eventually legislation was passed (An Act relating to the St. Peter’s Indian Reserve S.C. 1916, chapter 24) to settle the matter. Even today, however, controversy surrounds the surrender, by which the band exchanged the St. Peter’s reserve for its present reserve. See Daniel, A History of Native Claims. 69 Kruger v. The Queen, [1986] 1 F.C. 3 at 24.

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70 Although Mr. Justice Heald found a breach of the fiduciary obligation, ultimately he also found that the action by the band was time-barred. Justices Urie and Stone found no breach of the fiduciary obligation in the first place. In the result, all three judges dismissed the appeal. 71 House of Commons, Debates, 1910-1911, volume 4, column 7827, 26 April 1911. 72 Titley, A Narrow Vision (cited in note 62), p. 95. 73 Re Indian Reserve, City of Sydney, N.S. (1918), 42 D.L.R. (Ex. C.) 314 at 316-317 per Audette J. 74 Dick v. The Queen, [1985] 2 S.C.R. 309. 75 Duncan Campbell Scott, a deputy superintendent general of Indian affairs, stated with regard to the Wyandotte (Wendat) of Anderdon that by “education and intermarriage they had become civilized”; see The Administration of Indian Affairs in Canada (Toronto: Canadian Institute of Indian Affairs, 1931), p. 605. The enfranchisement of the Wyandotte of Anderdon is also discussed in Bruce G. Trigger, “The Original Iroquoians: Huron, Petun, and Neutral”, in Aboriginal Ontario: Historical Perspectives on the First Nations, ed. Edward S. Rogers and Donald B. Smith (Toronto: Dundurn Press, 1994), pp. 59-61. 76 The Michel Band in Alberta, in 1958, discussed later in this chapter (see note 119 and accompanying text). 77 Department of Indian Affairs, Annual Report, 1920, p. 13, quoted in Titley, A Narrow Vision (cited in note 62), p. 48. 78 An Act to amend the Indian Act, S.C. 1919-1920, chapter 50, section 3. 79 The incident, along with a brief history of Loft’s activities, is recounted in Titley, A Narrow Vision (cited in note 62), pp. 102-106. 80 In Indian Women and the Law in Canada: Citizens Minus (Ottawa: Supply and Services, 1978), Kathleen Jamieson cites the following figures (pp. 63-65), all derived from statistics provided to her by the department of Indian affairs. Between 1955 and 1965, for example, there were a total of 7,725 enfranchisements, 2,276 of which were voluntary enfranchisements of men and women (1,313) and included any children enfranchised along with them (963). Thus, 5,449 people — 4,274 women and 1,175 of their children — were involuntary enfranchisements. The disparity between voluntary and involuntary enfranchisements was even more pronounced between 1965 and 1975. There were 5,425 enfranchisements, of which 390 were voluntary, including both men and women (263) and any children enfranchised along with them (127). During the same period, however, a total of 5,035 people — 4,263 women and 772 of their children — were enfranchised involuntarily under section 12(1)(b) of the Indian Act.

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81 For a fuller explanation of this period in Canadian history and of the policies designed to prevent Indian unrest on the prairies, see John L. Tobias, “Canada’s Subjugation of the Plains Cree, 1879-1885”, in Sweet Promises: A Reader on Indian-White Relations in Canada, ed. J.R. Miller (Toronto: University of Toronto Press, 1991), pp. 212-240. 82 An Act further to Amend “The Indian Act,” chapter forty-three of the Revised Statutes, R.S.C. 1890, chapter 29, section 9, making Indian agents justices of the peace for purposes of enforcing An Act respecting Offences against Public Morals and Public Convenience, R.S.C. 1886, chapter 157. 83 Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba, Volume 1, The Justice System and Aboriginal People (Winnipeg: Queen’s Printer, 1991), pp. 303-304. 84 RCAP, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Supply and Services, 1996). 85 According to the Department of Indian Affairs and Northern Development, at the time of writing this report, those reserves were Akwesasne, Kahnawake and Mashteniatsh (Pointe Bleue). 86 The potlatch and the Tamanawas dance are described briefly in Douglas Cole and Ira Chaikin, An Iron Hand Upon the People: The Law Against the Potlatch on the Northwest Coast (Vancouver: Douglas & McIntyre, 1990), pp. 5-13. 87 NAC RG10, volume 3669, file 10,691, Gilbert M. Sproat, joint federal-provincial appointee to the British Columbia Indian Reserve Commission, to the superintendent general of Indian Affairs, 27 October 1879, quoted in Cole and Chaikin, An Iron Hand, p. 15. 88 This case arose in 1889 and is discussed in Cole and Chaikin, An Iron Hand, pp. 3536. The Indian Act was amended later to overcome the specific problems with the wording that Begbie had pointed out. 89 J.R. Miller describes the role of these Indian converts to Christianity in the antipotlatch crusade in “Owen Glendower, Hotspur and Canadian Indian Policy”, in Sweet Promises (cited in note 81), p. 329. 90 Chief Alfred Scow, Kwicksutaineuk Tribe, in RCAP, National Round Table on Aboriginal Justice Issues, transcripts, Ottawa, 26 November 1992. For information about transcripts and other RCAP publications, see A Note About Sources at the beginning of this volume. 91 The campaign to eradicate dancing on the prairies is related in Katherine Pettipas, Severing the Ties That Bind:

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Government Repression of Indigenous Religious Ceremonies on the Prairies (Winnipeg: University of Manitoba Press, 1994), particularly pp. 121-122, where the story of the arrest and jailing of Taytapasahsung is told. 92 NAC RG10, volume 3826, file 60, Duncan Campbell Scott to W.M. Graham, 4 October 1921, quoted in Titley, A Narrow Vision (cited in note 62), p. 177. 93 The Queen v. Drybones, [1970] S.C.R. 282. 94 Sarah Carter, “Two Acres and a Cow: ‘Peasant’ Farming for the Indians of the Northwest, 1889-97”, in Sweet Promises (cited in note 81), p. 360. 95 Parliament of Canada, Sessional Papers, volume 23, no. 12, Annual Report for the year ended 31st December 1889, p. 162, quoted in Sarah Carter, Lost Harvests: Prairie Indian Reserve Farmers and Government Policy (Montreal: McGill-Queen’s University Press, 1990), p. 213. 96 Jean Goodwill and Norma Sluman, John Tootoosis (Winnipeg: Pemmican Publications, 1984), p. 125. 97 This was the rationale of Duncan Campbell Scott, deputy superintendent general of Indian affairs at the time. In 1924 he had written to E.L. Newcombe, deputy minister of justice, requesting a legal opinion of the draft clause that eventually became section 149A of the revised Indian Act (R.S.C. 1927, chapter 98). See NAC RG10, volume 6810, file 470-2-3, volume 8, quoted in Leslie and Maguire, Historical Development (cited in note 48), p. 121. 98 The attempt to charge A.E. O’Meara is recounted briefly in Titley, A Narrow Vision (cited in note 62), p. 157, while that regarding F.O. Loft is told in Goodwill and Sluman, John Tootoosis (cited in note 96), pp. 136-137. 99 F. Laurie Barron, “The Indian Pass System in the Canadian West, 1882-1935”, Prairie Forum 13/1 (Spring 1988), pp. 27-28. 100 NAC RG18, volume 1100, no. 134-35, from the Assistant Indian Commissioner to the Commissioner of the North-West Mounted Police, 20 September 1888; NAC RG10, volume 3285, file 60,511-1-7, p. 7, from F.H. Paget to the Commissioner of the NorthWest Mounted Police, 30 May 1896, quoted in Barron, “The Indian Pass System”, pp. 34-35. See also Pettipas, Severing the Ties That Bind (cited in note 91), p. 113. 101 H.B. Hawthorn, C.S. Belshaw, and S.M. Jamieson, The Indians of British Columbia: A Study of Contemporary Social Adjustment (Vancouver: University of British Columbia Press, 1958), p. 486. See Peter Carstens, The Queen’s People: A Study of Hegemony, Coercion, and Accommodation among the Okanagan of Canada (Toronto: University of Toronto Press, 1991), p. 88.

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102 In this regard, see Carter, “Two Acres and A Cow” (cited in note 94), p. 368. 103 William M. Graham, Treaty Days: Reflections of an Indian Commissioner (Calgary: Glenbow Museum, 1991), p. 84. 104 House of Commons, Debates, Third Session — Fifth Parliament, 30 April 1885, p. 1484, quoted in Richard Bartlett, “Citizens Minus: Indians and the Right to Vote”, Saskatchewan Law Review 44 (1980), p. 163. For a discussion of the federal and provincial franchise in relation to Indians, see also Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy, volume 1 (Ottawa: Supply and Services, 1991). 105 This happened at different times in different provinces. See Bartlett, “Citizens Minus”, pp. 183-184. 106 Although this put such women in a vulnerable position, they were nonetheless in a more fortunate situation than women who had actually been enfranchised through the actions of their husbands under the enfranchisement provisions of the act. Such women lost not only Indian status, but also all connection to the band. In law they were considered non-Indians, provincial residents and Canadian citizens like all others, regardless of their Indian origins and former Indian community. 107 Transcript of the evidence of Sandra Ginnesh, cited in the recent decision of the Federal Court of Canada in Sawridge Band v. Canada, [1995] 4 Canadian Native Law Reporter 121. The red ticket system is discussed in some detail in this case. 108 A.G. of Canada v. Lavell — Isaac v. Bedard, [1974] S.C.R. 1349 at 1386. 109 See note 80. 110 This power was used in 1942, when the Indian affairs branch investigated its band lists in the Lesser Slave Lake area and discharged 663 persons on the basis of their mixed ancestry. The protests led to the creation of a judicial inquiry conducted by Judge W.A. Macdonald of the District Court of Alberta. He found in his 1944 report that in almost half the cases the power had been used arbitrarily. See Daniel, History of Native Claims (cited in note 67), pp. 25-26. 111 NAC RG10, 577-127-33, volume 1A, quoted in Jamieson, Indian Women and the Law (cited in note 80). 112 Figure 9.1 is based on the excellent discussion of the post-1985 Indian status rules in Native Women’s Association of Canada, Guide to Bill C-31: An Explanation of the 1985 Amendments to the Indian Act (Ottawa: NwAC, 1985).

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113 Stewart Clatworthy and Anthony H. Smith, “Population Implications of the 1985 Amendments to the Indian Act”, paper prepared for the Assembly of First Nations (December 1992), preface. 114 Projections in the study by Clatworthy and Smith (pp. 37-39) show that the expansion of the status Indian population will peak between 2021 and 2051 and will begin to decline thereafter, returning to its present level by 2091. A decline in the status Indian population is expected to set in then and to continue. 115 Special Joint Committee of the Senate and House of Commons appointed to examine and consider the Indian Act, Minutes of Proceedings and Evidence (Ottawa: King’s Printer, 1946), p. 744. 116 Diamond Jenness, “Plan for Liquidating Canada’s Indian Problem Within 25 Years”, in Special Joint Committee, Minutes of Proceedings and Evidence, p. 310. 117 Special Joint Committee, Minutes of Proceedings and Evidence, p. 187. 118 Indian Act, S.C. 1951, chapter 29, section 8. 119 To this effect, see Bradford W. Morse, “The Aboriginal Peoples of Canada”, in Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada, ed. Bradford Morse (Ottawa: Carleton University Press, 1989), p. 1; and Linda Rayner, “The Creation of a ‘Non-Status’ Indian Population by Federal Government Policy and Administration”, paper prepared for the Native Council of Canada (1978), p. 6. 120 The history of the Michel Band and the origins of the land claims, to which current status Indians descended from this band apparently do not have access, is set out in Bennett McCardle, “The Michel Band: A Short History” (Ottawa: Treaty and Aboriginal Rights Research of the Indian Association of Alberta, 1981). This paper can be obtained from the Assembly of First Nations. The federal specific claims policy and its failure to address potential claims from Michel Band descendants is described in William B. Henderson and Derek T. Ground, “Survey of Aboriginal Land Claims”, Ottawa Law Review 26/1 (1994), pp. 201-202. A report by the Indian affairs branch (cited in note 121), p. 36, states that one other band enfranchised voluntarily in the 1950s. It consisted of one family living on a reserve but is not named in the document. 121 Indian Affairs Branch, Department of Citizenship and Immigration, A Review of Activities, 1948-1958, pp. 8-9, 35-36. See also John F. Leslie, “A Historical Survey of Indian-Government Relations, 1940-1970”, paper prepared for the Royal Commission Liaison Office, DIAND (December 1993). 122 Joint Committee of the Senate and the House of Commons on Indian Affairs, Minutes of Proceedings, No. 16, including second and final report to Parliament (1961), p. 605.

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123 Survey of the Contemporary Indians of Canada (cited in note 13). 124 Survey of the Contemporary Indians of Canada, p. 263. 125 House of Commons, Special Committee on Indian Self-Government, Indian SelfGovernment in Canada: Report of the Special Committee (Ottawa: Supply and Services, 1983). 126 S.C. 1984, chapter 18. 127 S.C. 1986, chapter 27. 128 Lands, Reserves and Trusts Review: Phase II Report (Ottawa: Supply and Services, 1990), preface.

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Volume 1 - Looking Forward Looking Back PART TWO False Assumptions and a Failed Relationship

10

Residential Schools of the life of the new Canadian nation, when the government turned to address the constitutional responsibility for Indians and their lands assigned by the Constitution Act, 1867, it adopted a policy of assimilation1. As described in the previous chapter, the roots of this policy were in the pre-Confederation period. It was a policy designed to move communities, and eventually all Aboriginal peoples, from their helpless 'savage' state to one of self-reliant 'civilization' and thus to make in Canada but one community — a non-Aboriginal, Christian one.2 IN THE FIRST FEW DECADES

Of all the steps taken to achieve that goal, none was more obviously a creature of Canada's paternalism toward Aboriginal people, its civilizing strategy and its stern assimilative determination than education. In the mind of Duncan CampbellScott, the most influential senior official in the department of Indian affairs in the first three decades of the twentieth century, education was "by far the most important of the many subdivisions of the most complicated Indian problem". 3 As a potential solution to that 'problem', education held the greatest promise. It would, the minister of Indian affairs, Frank Oliver, predicted in 1908, "elevate the Indian from his condition of savagery" and "make him a self-supporting member of the state, and eventually a citizen in good staning." 4 It was not, however, just any model of education that carried such promise. In 1879, Sir John A. Macdonald's government, pressured by the Catholic and Methodist churches to fulfil the education clauses of the recently negotiated western treaties,5 had assigned Nicholas Flood Davin the task of reporting "on the working of Industrial Schools...in the United States and on the advisability of establishing similar institutions in the North-West Territories of the Dominion." Having toured U.S. schools and consulted with the U.S. commissioner of Indian affairs and "the leading men, clerical and lay who could speak with authority on the subject" in western Canada, Davin called for the "application of the principle of industrial boarding schools" — off-reserve schools that would teach the arts, crafts and industrial skills of a modern economy. Children, he advised, should be removed from their homes, as "the influence of the wigwam was stronger than that of the [day] school", and be "kept constantly within the circle of civilized conditions" — the residential school — where they would receive the "care of a mother" and an education that would fit them for a life in a modernizing Canada.6

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Davin's report received the unqualified support of the churches and the department, with the latter going so far as to suggest that within the wide range of assimilative policies, it would be through residential education, more than any other method, that "the solution of that problem, designated 'the Indian question' would probably be effected...".7 Politician, civil servant and, perhaps most critically, priest and parson all felt that in developing the residential school system they were responding not only to a constitutional but to a Christian "obligation to our Indian brethren" that could be discharged only "through the medium of the children" and "therefore education must be given the foremost place".8 At the same moment, however, they were driven by more prosaic motives. Macdonald's deputy superintendent general of Indian affairs, L. Vankoughnet, assured him that Indian expenditures were "a good investment", for in due course Aboriginal people, "instead of being supported from the revenue of the country...would contribute largely to the same."9 The socializing power of education had a similarly self-serving utility. Schools were part of a network of institutions that were to minister to industrial society's need for order, lawfulness, labour and security of property.10 Scott admitted frankly that the provision of education to Indian communities was indispensable, for without it and "with neglect", they "would produce an undesirable and often dangerous element in society."11 Residential schools were more than a component in the apparatus of social construction and control. They were part of the process of nation building and the concomitant marginalization of Aboriginal communities. The department's inspector of education wrote in 1900 that the education of Aboriginal people in frontier districts was an important consideration, not only as an economical measure to be demanded for the welfare of the country and the Indians, themselves, but in order that crime may not spring up and peaceful conditions be disturbed as that element which is the forerunner and companion of civilization penetrates the country and comes into close contact with the natives. That benefit will accrue to both the industrial occupants of the country covered by treaty and to the Indians by weaning a number from the chase and inclining them to industrial pursuits is patent to those who see [that] a growing need of intelligent labour must occur as development takes place.12 The Aboriginal leader George Manuel, a residential school graduate, was rather more blunt. The schools, he wrote, were the laboratory and production line of the colonial system...the colonial system that was designed to make room for European expansion into a vast empty wilderness needed an Indian population that it could describe as lazy and shiftless...the colonial system required such an Indian for casual labour...13 Selfless Christian duty and self-interested statecraft were the foundations of the residential school system. The edifice itself was erected by a church/government partnership that would manage the system jointly until 1969. In this task the churches —

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Anglican, Catholic, Methodist and Presbyterian — led the way. Indeed, their energetic proselytizing resulted in the opening of residential schools in Ontario, the north-west and British Columbia even before the Davin report was submitted in 1879. Thereafter, the system — a combination of boarding schools built close to or in reserve communities and Davin's centrally located industrial schools — was expanded rapidly, reaching a high point with 80 schools in 1931 (see Table 10.1) and growing again in the 1950s as part of the nation's post-war expansion into Inuit homelands. It was maintained until the mid1980s. Schools were built in every province and territory except Prince Edward Island, New Brunswick and Newfoundland.14 They registered children from every Aboriginal culture — Indian, Inuit, and Métis children too — though the federal government assumed no constitutional responsibility for Métis people.15 While Métis children would be invisible, rarely mentioned in the records, they were nevertheless there and were treated the same as all the children were. TABLE 10.1 Residential Schools, 1931 Nova Scotia Ontario

Shubenacadie (RC) Albany Mission (RC)

Cecilia Jeffrey (PR)

Chapleau (CE)

Fort Frances (RC)

Fort William (RC)

Kenora (RC)

McIntosh (RC)

Mohawk (CE)

Moose Fort (CE)

Mount Elgin (UC) Shingwauk Home (CE)

Sioux Lookout (CE)

Spanish (RC) Manitoba

Birtle (PR)

Brandon (UC)

Cross Lake (RC)

Elkhorn (CE)

Fort Alexander (RC)

MacKay (CE)

Norway House (UC)

Pine Creek (RC) Portage la Prairie (UC)

Sandy Bay (RC) Saskatchewan

Alberta

Northwest Territories

Beauval (RC)

Cowessess (RC)

Duck Lake (RC)

File Hills (UC)

Gordon's (CE)

Guy (RC)

Lac La Ronge (CE)

Muscowequan (RC)

Onion Lake (CE)

Onion Lake (RC)

Qu'Appelle (RC)

Round Lake (UC)

St. Phillips (RC)

Thunderchild (RC)

Blood (RC)

Blue Quills (RC)

Crowfoot (RC)

Edmonton (UC)

Ermineskins (RC)

Holy Angels (RC)

Lesser Slave Lake (CE)

Morley (UC)

Old Sun's (CE)

St. Albert (RC)

St. Bernard (RC)

St. Bruno (RC)

St. Cyprian (CE)

St. Paul's (CE)

Sacred Heart (RC)

Sturgeon Lake (RC)

Vermilion (RC)

Wabasca (CE)

Wabasca (RC)

Whitefish Lake (CE)

Aklavik (RC)

Fort Resolution (RC)

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Hay River (CE))

Providence Mission (RC) British Columbia

Ahousaht (UC)

Alberni (UC)

Alert Bay (CE)

Cariboo (RC)

Christie (RC)

Coqualeetza (UC)

Kamloops (RC)

Kitamaat (UC)

Kootenay (RC)

Kuper Island (RC)

Lejac (RC)

Port Simpson (UC)

St. George's (CE) St. Mary's Mission (RC)

Sechelt (RC)

Squamish (RC) Yukon

Carcross (CE)

St. Paul's Hostel (CE)

In 1931 there were 44 Roman Catholic (RC), 21 Church of England (CE), 13 United Church (UC) and 2 Presbyterian (PR) schools. These proportions among the denominations were constant throughout the history of the system. In Quebec two schools, Fort George (RC) and Fort George (CE), were opened before the Second World War. Four more were added after the war: Amos, Pointe Bleue, Sept-ëles and La Tuque.

Put simply, the residential school system was an attempt by successive governments to determine the fate of Aboriginal people in Canada by appropriating and reshaping their future in the form of thousands of children who were removed from their homes and communities and placed in the care of strangers. Those strangers, the teachers and staff, were, according to Hayter Reed, a senior member of the department in the 1890s, to employ "every effort...against anything calculated to keep fresh in the memories of the children habits and associations which it is one of the main objects of industrial education to obliterate."16 Marching out from the schools, the children, effectively re-socialized, imbued with the values of European culture, would be the vanguard of a magnificent metamorphosis: the 'savage' was to be made 'civilized', made fit to take up the privileges and responsibilities of citizenship. Tragically, the future that was created is now a lamentable heritage for those children and the generations that came after, for Aboriginal communities and, indeed, for all Canadians. The school system's concerted campaign "to obliterate" those "habits and associations", Aboriginal languages, traditions and beliefs, and its vision of radical resocialization, were compounded by mismanagement and underfunding, the provision of inferior educational services and the woeful mistreatment, neglect and abuse of many children — facts that were known to the department and the churches throughout the history of the school system. In the course of that history there were those who understood that such a terrible legacy was being created. In 1943, R. Hoey, the department's superintendent of welfare and training, on receiving from the principal of St. George's School (located on the Fraser River, just north of Lyttons, B.C.) a set of shackles that had been used routinely "to chain runaways to the bed" and reports of other abuses at the school, wrote, "I can understand now why there appears to be such a widespread prejudice on the part of the Indians against residential schools. Such memories do not fade out of the human consciousness very rapidly."17 Nevertheless, with very few exceptions, neither senior departmental officials nor churchmen nor members of Parliament raised their voices against the

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assumptions that underlay the system or its abusive character. And, of course, the memory did not and has not faded. It has persisted, festered and become a sorrowful monument, still casting a deep shadow over the lives of many Aboriginal people and communities and over the possibility of a new relationship between Aboriginal and nonAboriginal Canadians.

1. The Vision and Policies of Residential School Education 1.1 The Vision ...it is to the young that we must look for a complete change of condition.18 The tragic legacy of residential education began in the late nineteenth century with a three-part vision of education in the service of assimilation. It included, first, a justification for removing children from their communities and disrupting Aboriginal families; second, a precise pedagogy for re-socializing children in the schools; and third, schemes for integrating graduates into the non-Aboriginal world. The vision sprang from and was shaped and sustained by the representations of departmental officials and churchmen of the character, circumstances and destiny of the nation's Aboriginal population. For such social reformers in Canada, and indeed throughout the world of European empires, the contact between expansive and 'mature' non-Aboriginal culture and indigenous cultures in their 'infancy' imperilled the survival of Aboriginal peoples. According to an 1886 report from the department's inspector of schools for the north-west, for example, resource development and settlement had prevented Indian communities from following that course of evolution which has produced from the barbarian of the past the civilized man of today. It is not possible for him to be allowed slowly to pass through successive stages, from pastoral to an agricultural life and from an agricultural one, to one of manufacturing, commerce or trade as we have done. He has been called upon suddenly and without warning to enter upon a new existence.19 The need for government intervention to liberate these savage people from the retrograde influence of a culture that could not cope with rapidly changing circumstances was pressing and obvious. Without it, the inspector continued, the Indian "must have failed and perished miserably and he would have died hard entailing expense and disgrace upon the Country." The exact point of intervention that would "force a change in [the Indian's] condition" was equally clear — "it is to the young that we must look for a complete change of condition." Only in the children could hope for the future reside, for only children could undergo "the transformation from the natural condition to that of civilization".20 Adults could not join the march of progress. They could not be emancipated from their "present state of ignorance, superstition and helplessness";21 they were "physically, mentally and morally...unfitted to bear such a complete metamorphosis".22 Under departmental tutelage, adults might make some slight advance. They could, Davin suggested, "be

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taught to do a little at farming and at stock raising and to dress in a more civilized fashion, but that is all."23 They were, in the words of the Reverend E.F. Wilson, founder of the Shingwauk residential school, "the old unimprovable people."24 The central difficulty in this analysis was not that adults were lost to civilization, but that they were an impediment to it. While they could not learn, they could, as parents, teach their children. Through them to their children and on through successive generations ran the "influence of the wigwam". If the children's potential was to be realized, it could only be outside the family. As E. Dewdney, superintendent general of Indian affairs in Macdonald's second government, reasoned, children therefore had to be removed from "deleterious home influences";25 they must be, the Archbishop of St. Boniface added, "caught young to be saved from what is on the whole the degenerating influence of their home environment."26 Their parents were, by the light of the vision's compelling logic, unfit. Only Frank Oliver demurred, pointing out the essentially un-Christian implication of this formative conclusion: I hope you will excuse me for so speaking but one of the most important commandments laid upon the human by the divine is love and respect by children for parents. It seems strange that in the name of religion a system of education should have been instituted, the foundation principle of which not only ignored but contradicted this command.27 No one took any notice of the minister, however, for no one involved in Indian affairs doubted for a moment that separation was justified and necessary and that residential schools were therefore indispensable. Such institutions would, Parliament had been informed in 1889, undoubtedly reclaim the child "from the uncivilized state in which he has been brought up" by bringing "him into contact from day to day with all that tends to effect a change in his views and habits of life."28 In its enthusiasm for the schools, the department went so far as to suggest that it would be "highly desirable, if it were practicable, to obtain entire possession of all Indian children after they attain to the age of seven or eight years, and keep them at schools...until they have had a thorough course of instruction".29 The common wisdom of the day that animated the educational plans of church and state was that Aboriginal children had to be rescued from their "evil surroundings", isolated from parents, family and community,30 and "kept constantly within the circle of civilized conditions".31 There, through a purposeful course of instruction that Vankoughnet described as "persistent" tuition,32 a great transformation would be wrought in the children. By a curriculum aimed at radical cultural change — the second critical element of the vision — the 'savage' child would surely be re-made into the 'civilized' adult. The school, as department and church officials conceived it, was a circle, an allencompassing environment of re-socialization with a curriculum that comprised not only academic and practical training but the whole life of the child in the school. This constituted the basic design of the schools and was maintained, with little variation, for most of the history of the system.

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The classroom work of the teachers and students was to be guided by the standard provincial curriculum. To this was added equally important training in practical skills. The department held firm to Davin's industrial model, convinced that no system of Indian training is right that does not endeavour to develop all the abilities, remove prejudice against labour, and give courage to compete with the rest of the world. The Indian problem exists owing to the fact that the Indian is untrained to take his place in the world. Once teach him to do this, and the solution is had.33 In every school, therefore, the children were to receive instruction in a range of subjects, including, for the boys, agriculture, carpentry, shoemaking, blacksmithing, tinsmithing and printing and, for the girls, sewing, shirt making, knitting, cooking, laundry, dairying, ironing and general household duties. As the curriculum was delivered in a half-day system until after the Second World War, with students spending half the day in the classroom and the other half in practical activities, trades training took place both in shops and in learn-by-doing chores. These chores had the additional benefit for the school of providing labour — on the farm and in the residences, bakehouse, laundry and dairy that made operation of the institution possible.34 Although these academic and practical courses might clothe the children in the skills and experience they needed to survive and prosper, the department and the churches realized that the children would have to undergo much more profound socialization. Skills would be useless unless accompanied by the values of the society the children were destined to join. The seeds of those values were, of course, embedded in each and every academic subject, in the literature they read, the poetry they recited, and the songs they were taught to sing. As well, however, in its 1896 program of study, the department directed that an ethics course be taught in each grade. In the first year, the students were to be taught the "practice of cleanliness, obedience, respect, order, neatness", followed in subsequent years by "Right and wrong", "Independence. Self-respect", "Industry. Honesty. Thrift", and "Patriotism....Self-maintenance. Charity." In the final year, they were confronted by the "Evils of Indian Isolation", "Labour the Law of Life" and "Home and public duties".35 Cardinal among these virtues was moral training for, as a memorandum from the Catholic principals explained, "all true civilization must be based on moral law." Christianity had to supplant the children's Aboriginal spirituality, which was nothing more than "pagan superstition" that "could not suffice" to make them "practise the virtues of our civilization and avoid its attendant vices." In the schools, as well as in the communities, there could be no compromise, no countenancing Aboriginal beliefs and rituals, which, "being the result of a free and easy mode of life, cannot conform to the intense struggle for life which our social conditions require."36 The children were not only to imbibe those values, and a new faith, they were to live them. The school was to be a home — a Canadian one. On crossing its threshold, the children were entering a non-Aboriginal world where, with their hair shorn and dressed in European clothes, they would leave behind the 'savage' seasonal round of hunting and

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gathering for a life ordered by the hourly precision of clocks and bells and an annual calendar of rituals, the festivals of church and state — Christmas, Victoria Day, Dominion Day and St. Jean Baptiste Day — that were the rapid, steady pulse of the industrial world. According to Dewdney, students had to be taught that "there should be an object for the employment of every moment", and thus the "routine...the recurrence of the hours for meals, classwork, outside duties...are all of great importance in the training and education, with a view to future usefulness".37 In school, in chapel, at work and even at play the children were to learn the Canadian way. Recreation was re-creation. Games and activities would not be the "boisterous and unorganized games" of "savage" youth. Rather they were to have brass bands, football, cricket, baseball and above all hockey "with the well regulated and...strict rules that govern our modern games", prompting "obedience to discipline" and thus contributing to the process of moving the children along the path to civilization.38 None of the foregoing would be achieved, however, unless the children were first released from the shackles that tied them to their parents, communities and cultures. The civilizers in the churches and the department understood this and, moreover, that it would not be accomplished simply by bringing the children into the school. Rather it required a concerted attack on the ontology, on the basic cultural patterning of the children and on their world view. They had to be taught to see and understand the world as a European place within which only European values and beliefs had meaning; thus the wisdom of their cultures would seem to them only savage superstition. A wedge had to be driven not only physically between parent and child but also culturally and spiritually. Such children would then be separated forever from their communities, for even if they went home they would, in the words of George Manuel, bring "the generation gap with them".39 Only in such a profound fashion could the separation from savagery and the re-orientation as civilized be assured. That the department and churches understood the central challenge they faced in civilizing the children as that of overturning Aboriginal ontology is seen in their identification of language as the most critical issue in the curriculum. It was through language that children received their cultural heritage from parents and community. It was the vital connection that civilizers knew had to be cut if progress was to be made. E.F. Wilson informed the department that at Shingwauk school, "We make a great point of insisting on the boys talking English, as, for their advancement in civilization, this is, of all things, the most necessary."40 Aboriginal languages could not carry the burden of civilization; they could not "impart ideas which, being entirely outside the experience and environment of the pupils and their parents, have no equivalent expression in their native language."41 Those ideas were the core concepts of European culture — its ontology, theology and values. Without the English language, the department announced in its annual report of 1895, the Aboriginal person is "permanently disabled" and beyond the pale of assimilation for, "So long as he keeps his native tongue, so long will he remain a community apart."42

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The only effective road to English or French, however, and thus a necessary precondition for moving forward with the multi-faceted civilizing strategy, was to stamp out Aboriginal languages in the schools and in the children. The importance of this to the department and the churches cannot be overstated. In fact, the entire residential school project was balanced on the proposition that the gate to assimilation was unlocked only by the progressive destruction of Aboriginal languages. With that growing silence would come the dying whisper of Aboriginal cultures. To that end, the department ordered that "the use of English in preference to the Indian dialect must be insisted upon."43 It was left to school principals to implement that directive, to teach the languages of 'civilization' — French in Quebec and English in all other parts of Canada, including Francophone areas, and to prevent the language of 'savagery' from being spoken in the school. Some instituted imaginative systems of positive reinforcement through rewards, prizes or privileges for the exclusive use of English. More often than not, however, the common method was punishment. Children throughout the history of the system were beaten for speaking their language.44 The third and final part of the vision was devoted to the graduates, their future life and their contribution to the civilization of their communities. It was this aspect of the vision that underwent the greatest change. While the ideology of the curriculum and its goal of extensive cultural replacement remained constant, the perceived utility of the schools to the overall strategy of assimilation and their relationship to Aboriginal communities underwent substantial revision. There were, in fact, two residential school policies. The first, in the long period before the Second World War, placed the school at the heart of the strategy to disestablish communities through assimilation. In the subsequent period, the residential school system served a secondary role in support of the integration of children into the provincial education system and the modernization of communities. Initially, the schools were seen as a bridge from the Aboriginal world into non-Aboriginal communities. That passage was marked out in clear stages: separation, socialization and, finally, assimilation through enfranchisement. By this last step, the male graduate could avail himself of the enfranchisement provisions of the Indian Act, leaving behind his Indian status and taking on the privileges and responsibilities of citizenship. Each stage in the passage had its difficulties, and the department was fully aware that its task was not completed with the training that led to graduation. Indeed, it declared in its annual report of 1887, "it is after its completion that the greatest care...needs to be exercised, in order to prevent retrogression." Retrogression — cultural backsliding — was the great fear. Once the connection between child and community had been broken it should not be re-established; the child should never again fall under the influence of Indian "prejudices and traditions" or the "degradations of savage life."45 To prevent this unhappy occurrence, the department reported in 1887, it would be best "to prevent those whose education at an industrial institution...has been completed from returning to the reserves". They were instead to be placed in the non-Aboriginal world and secured there by employment in the trade they had learned at the school, "so as to cause them to reside in towns, or, in the case of farmers, in settlements of white people, and thus become

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amalgamated with the general community."46 By implication, the future was not only one of amalgamating growing numbers of employable graduates but also the progressive decay and final disappearance of reserve communities. Reality intervened in this strategy, however, and, indeed, the department and the churches did not exercise the "greatest care" of graduates. There was no placement program, and even if there had been, situations were not available in towns or "settlements of white people". "Race prejudice", an Indian agent informed the department, "is against them and I am afraid that it will take time, under the circumstances, before they can compete with their white brothers in the trades."47 By 1896, the department had to face the fact that "for the majority [of graduates], for the present at least, there appears to be no alternative" but to return to the reserves.48 That present became the future; there were always but few openings for graduates. With the exception of temporary labour shortages during the war, it was obvious that "no appreciable number of graduates of the Schools will be in a position to earn a livelihood by working as a craftsman among whites."49 The second fact that had to be faced was that in returning to their communities, as Reed predicted, "there will be a much stronger tendency for the few to merge into the many than to elevate them."50 A great proportion of the graduates would go "back to the ways of the old teepee life",51 to the "nomadic habits of his ancestors."52 They could not, one principal reported "stand firm" or "overcome this tendency to drift with the current that carries so many of their own people."53 The department and the churches recognized the problem — one that cut to the very heart of their strategy, blunting the usefulness of the schools and in fact so calling into question the industrial school model that, in 1922, it was abandoned in favour of the simpler boarding school, thereafter called a residential school. They recognized it but, as would be the case so often in the history of the system when it faced difficulties, they did very little apart from discuss it and formulate proposals.54 In 1898, the deputy superintendent general, James Smart, recognizing the impossibility of countering the drift back to reserves, decided to make a virtue out of necessity. He redesigned the system, supplementing its original emphasis on the enfranchisement of individual graduates with the additional goal of developing the communities to which the graduate returned. It would now be the object "to have each pupil impart what he has gained to his less fortunate fellows, and in fact become a centre of improving influence for the elevation of his race".55 The graduates could be, the principal of the Regina industrial school predicted, a "great moral force in the uplift of the life of the reserve", providing "an object lesson" in farming, gardening, housekeeping, the care of the sick and "maintaining sanitary conditions about their homes."56 By 1901, the department had initiated an experiment, the File Hills colony on the Peepeekeesis reserve, designed to release the graduates' uplifting developmental potential. The colony, under the close supervision of the agent W.M. Graham, was a model settlement of 15 former pupils, each allocated an 80-acre lot, horses, farming equipment, lumber and hardware for houses. Departmental expenses were to be recouped

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from the young farmers when they achieved an adequate income and the funds transferred to "help others make a like start."57 Reports on the colony were promising in 1902 but in ensuing years they were much less so,58 with the graduates described as being "all the way from 'lazy and indifferent' to 'making favourable or satisfactory progress'".59 Reflecting these assessments, or perhaps because the experiment was, as the historian Olive Dickason has suggested, "too costly for the budget-minded department",60 Duncan Campbell Scott chose not to extend it. Instead, he merely called upon principals and agents to co-ordinate the return of graduates to reserves and, so that they should not be thrown "entirely upon [their] own resources", he announced a modest start-up program — offering graduates "a gift of oxen and implements...and the granting of a loan which must be repaid within a certain time, and for which an agreement is signed by the pupil."61 These loans substituted for what could have been a more ambitious attempt to resolve the problem of the graduates.62 As the United Church's Association of Indian Workers in Saskatchewan pointed out in 1930, there continued to be "a missing link that should be forged into the present system along the line of 'Follow up work'."63 Without such a link, without any effective "control over the graduates",64 they were destined to return to the reserves, where rather than being that "great moral force",65 they would fall under "the depressing influence of those whose habits still largely pertain to savage life".66 For those ex-pupils and for the communities, assimilation would remain an ever-distant departmental goal.

1.2 Changing Policies ...the interests of the children are best served by leaving them with their parents.67 The fact that the department stumbled in planning this final step to assimilation was augmented by an even more disturbing reality. As a general rule, at no time in the history of the system did the schools produce the well-educated graduates that were the prerequisite for both the original scheme of enfranchisement and Smart's amended community-based strategy. Indeed, the use of the word graduate was rather misleading, for very few children completed the full course of study, though it is clear that many children did receive some of the basics of a rudimentary education and a few children reached advanced levels. Even for those that did complete the program, most schools did not provide the training that was such an essential part of the residential vision. According to a review of the educational performance of the system up to 1950, conducted in 1968 by R.F. Davey, the director of educational services, the practical training that had been in place "contained very little of instructional value but consisted mainly of the performance of repetitive, routine chores of little or no educational value."68 Davey's judgement of the quality of the academic program was equally harsh. The system had failed to keep pace with advances in the general field of education and, because the schools were often in isolated locations and generally offered low salaries, the system had been unable to attract qualified staff. A departmental study quoted by Davey found that,

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as late as 1950, "over 40 per cent of the teaching staff had no professional training. Indeed, some had not even graduated from high school." Moreover, teachers worked under the most difficult conditions. Language training was a persistent problem, and the half-day system reduced class time to the extent that it was, Davey concluded, virtually impossible for students to make significant progress. He noted in his report that in 1945, when there were 9,149 residential school students, the annual report of the department showed only "slightly over 100 students enroled in grades above grade VIII and...there was no record of any students beyond the grade IX level." In the 1950s and '60s the department made improvements in the educational component of the residential system. Additional departmental educational supervisory staff were employed, in 1951 the half-day system was abandoned, the department assumed direct responsibility for the hiring and remuneration of teachers in 1954,69 and, in an attempt to attract more competent staff, teachers were "placed upon salary scales which bore some relationship to the salaries paid across the country."70 In attracting more competent staff, the department was able to achieve considerable success quickly. By 1957, the number of unqualified teachers in residential schools had been reduced by 50 per cent, and in 1962 the department reported that 91.1 per cent of the teachers it employed were fully qualified.71 It was not easy to keep the percentage up, however, and two decades later the department admitted that it still had "difficulty in recruiting and retaining education staff."72 Nevertheless, the department could track advances in educational attainment. By 1959, the number of children in grades 9 to 13 in residential and day schools had increased from none in 1945 to 2,144, and in the next decade, it rose even more rapidly to 6,834, which was just over 10 per cent of the total school (day and residential) population.73 All these efforts were overshadowed by what had been and continued to be a most fundamental impediment. Both the curriculum and the pedagogy, which were not in any way appropriate to the culture of the students, made it difficult for the children to learn. This fact could not have escaped the department's and the churches' attention, for on a number of occasions provincial school inspectors, employed by the department to assess the educational condition of the schools, had made the point that the "curricula in use in various provinces are not necessarily the courses of study adapted for use in Indian schools." "It should not be forgotten", Inspector Warkentin informed the department in 1951, "that there is very often a very wide difference in the life experiences of Indian children and white children, a difference which should be reflected in courses of study."74 Another inspector, while reinforcing this point, added a call for a change in pedagogy to one that would be more familiar to the children. In considering the subject of social studies, for example, he advised that "this work be taught by a due recognition of Indian background. Story telling can be used more effectively to arouse interest."75 Although the department admitted in the 1970s that the curriculum had not been geared to the children's "sociological needs", it did little to rectify that situation. A national survey was undertaken "to identify textbooks that the Indian people considered offensive, and steps were taken to remove these books from the schools".76 Research was

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commissioned from a number of universities to address "the absence from the school curriculum generally of an Indian cultural component",77 but none of it was of the scope that would ever have met Warkentin's suggestion that a comprehensive "curriculum specially aimed at the instruction of Indian children should be drawn up".78 There is no indication in school records that the results of any of this research found its way into the classrooms of residential schools. Efforts to improve the school program in the post-war period were undercut further by one final factor — the system was gradually abandoned. In 1948, the federal government — on the recommendation of the joint parliamentary committee on Indian affairs, which in hearings held beginning in 1946, had received strong representations from Indian groups for "an end to the policy and practice of segregated education"79 — initiated an extensive redesign of its Aboriginal education strategy that not only took the emphasis off residential schools but determined that the system should be shut down completely as soon as possible. Departmental efforts and resources were reallocated to a new policy, away from the residential system to creation of a day school system and, most significantly, integration by "transferring Indian children to provincial schools, and federal schools to provincial administrative school units."80 The representations of Indian groups cannot be wholly discounted in this development, but in fact the move away from the traditional strategy began even before the war, and the dynamics that motivated it were, as always, a non-Aboriginal assimilative strategy and more mundane considerations — financial ones in this instance. In 1943, R.A. Hoey appeared before a special parliamentary committee on reconstruction and reestablishment. Reacting to statements by one of the committee members — that residential schools "lose a great deal of the value of the education", because they "segregate the children" from their community, and that if children were educated in a day school "[y]ou would educate the parents and the children together" — Hoey admitted that he too had doubts about the efficacy of residential schools. His personal preference was "to see residential schools slowly and gradually closed".81 Hoey took back to the department the clear understanding that the "Indians in the judgement of the committee, should be encouraged to attend white schools" and that this would probably be the policy of the future. He was, as the department would be, in total agreement with such a policy directive. As he pointed out to the deputy minister, there was a definite educational benefit in giving the children the "opportunity of associating with white children during their formative years".82 Such experience would increase the likelihood of their absorbing non-Aboriginal culture or, as Davey characterized it two decades later, would "quicken and give meaning to the accultural process through which [the children] are passing".83 There also appeared to be a financial advantage for the government, in that integration, Hoey believed, "would in the end be substantially less than the cost of establishing" and operating an exclusively federal system of residential and day schools.84 The policy of integration, though an apparently radical redirection of educational policy, was not based on a wholly new vision of education's role in the quest for assimilation. It

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built upon Smart's idea of community development, but in this version, in a most surprising break with the civilizing logic of the late nineteenth century, an active part was assigned to the parents, whose dangerously savage character and baleful influence appear mysteriously to have disappeared. Indeed, the department took the position that maintaining the parent/child relationship was key — that "there can be no complete substitute for the care and concern of parents and the security which children feel when living at home".85 Therefore, It is considered that the parents, wherever possible, should assume the responsibility for the care of their children, and that the interests of the children are best served by leaving them with their parents when home circumstances and other factors are favourable.86 This now-valued parental involvement was even given institutional form in federal day and residential schools. In 1956, the department set up a number of school committees "to stimulate parental and community interest, and to provide experience for the further involvement of Indians in the management of education." The committees, made up of band members, were to act as "advisory boards to departmental staff" and were to be "involved in the operation of the schools", being given authority for the "school lunch program, daily school transportation, repairs and the maintenance of school buildings...and they also present the annual operating budget to the district superintendent of education."87 While the department expanded this initiative, establishing some 180 such committees by 1971, there was no increase in their authority. Most noticeably, they were given no control over curriculum, perhaps so that whatever traces of the influence of the wigwam still existed might be effectively excluded from the classroom. There is, indeed, reason to suspect that integration — despite the apparent cultural sensitivity of the textbook survey and commissioned research — did not lessen, and may even have increased, the corrosive impact of education on the culture of the children. Again, as in the original vision, the question of language was the essential template shaping the policy. The department realized that "the most formidable handicap that faces the Indian child entering [the provincial] school"88 was the requirement to be able to function in English (and in French or English in Quebec). To that end, the greatest emphasis in this period was on the development of a language arts program,89 and regional language specialists were employed to help the children "overcome any language difficulties",90 in the belief that "much of the progress in Indian education" was to be realized by these "improved methods of language instruction."91 Most significantly, integration meant repositioning the residential school system. No longer the main thrust of the assimilative strategy, it became, as the department described it, "a supplementary service" for children "who for very special reasons, cannot commute to federal day schools or provincial schools from their homes".92 The new organizing principle of the policy was "that in educational services, everything possible will be done to enable families to stay together, so children will not have to be separated from their parents needlessly."93

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The whole educational system could not, of course, be remodelled overnight to conform to this new dictum. Rather the change in status occurred school by school, at different times in different parts of the country owing to local circumstances — for example, the development of reserve roads to allow busing of children to day schools, the construction of schools close to communities, and the progress of integration, which could not go forward without negotiating local school board and provincial agreements. The residential school system therefore comprised, at any point in time, a spectrum of different types of residential schools — from those that remained classic residential schools because of community isolation, to those that combined "residential and day school with a preponderance of day students", to those that became hostels or student residences for children brought in from distant communities to provincial schools during the day. There were even some that combined hostel, residential and day school, providing boarding facilities only for those pupils attending a nearby provincial school, boarding facilities and classroom instruction for others and classroom instruction only for day pupils.94 Finally, a boarding home program, involving the placement of high school students "in carefully selected private homes", was also introduced and substituted for residential assignment of children.95 The overall intention, of course, was for all residential schools to be closed as soon as implementation of the integration policy reduced enrolments. In 1948, 60 per cent of the Indian school population was enroled in federal schools.96 In 1969, 60 per cent were in provincial schools,97 and the number of residential schools and hostels was reduced from the 72 schools operating in 1948, with 9,368 students, to 52 schools with 7,704. That the number of schools and students did not fall proportionately was attributable not only to local circumstances but to two further difficulties — opposition to closures and the emergence of a new role for the schools as social welfare institutions. The development of a welfare function was not a completely unforeseen implication of the new integration policy. Hoey had warned the reconstruction and re-establishment committee in 1943 that there would continue to be a need for residential places for "orphans and children from disrupted homes".98 Because of "such things as alcoholism in the home, lack of supervision, serious immaturity",99 some parents would not be able, as the new policy directed, to "assume the responsibility for the care of their children".100 To reflect that reality and at the same time control and reduce residential school enrolments, an admissions policy "based upon the circumstances of the student's family"101 was adopted. In areas where federal day school attendance or integration was possible, priority was given to children deemed to be "Category 3" — those from families where "a serious problem leading to neglect of children exists". Neglect — measured, of course, against non-Aboriginal norms — was "interpreted as defined in the provincial statute of the province in which the family resides".102 In line with the general post-war trend of involving provinces in Indian affairs, provincial child welfare agencies co-operated in determining cases of neglect and in placing children in care. Residential schools were an available and apparently popular option within the wider child care system.

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As the integration program expanded, many residential schools, particularly in southern Canada, where the rate of progress was most extensive, became, to a degree alarming to the department, repositories for 'neglected' children.103 A confidential 1966 departmental report estimated that 75 per cent of children in the schools were "from homes which, by reasons of overcrowding and parental neglect or indifference, are considered unfit for school children."104 This trend caused a serious bottleneck in the process of reducing enrolments. It might have been remedied by providing support to families in communities to "alleviate the situations where children year in and year out are being removed from their homes and the home situation [remains] practically the same."105 The more usual methods, however, appear to have been either the referral of children requiring long-term care "to a child welfare agency for foster home service" or adoption or the placement of "incorrigible" children with "an officer of a correctional or welfare agency."106 As the department characterized the situation, this welfare bottleneck put it in the anomalous position of having to administer a group of schools which have a degree of independence of operation permitting them to pursue policies which are diametrically opposed to those of the Federal Government, particularly with respect to segregation and welfare. The tension created by this internal conflict is damaging to the Indian education program and confusing to the Canadian public.107 Much of this conflict sprang from opposition to integration that the department had, in fact, anticipated from its old partner in education, the churches, and from "some Indian associations who dislike working with provincial governments, and from individuals, both Indian and non-Indian, who, for personal reasons, wish to keep the federal schools open."108 Church opposition came almost exclusively from the Catholic church,109 which fought particularly hard in western Canada where, as the department noted, perhaps cynically, provinces "do not provide for separate schools".110 According to the church, its position was purely altruistic. In Residential Education for Indian Acculturation, a study produced in 1959 by the Oblate Indian and Eskimo Welfare Commission, the church argued that separate on-reserve education in day schools or separate residential school education provided greater educational benefits and had greater "efficiency towards acculturation". Residential schools, in addition, provided healthier living conditions, more appropriate supervision, better grouping by grade and more vocational training possibilities than the average day school. It is also usually in a better position to offer a wider range of social and recreational activities including those with non-Indians.111 The church conducted an aggressive political campaign in the late 1950s and into the 1960s through the reserve-based Catholic Indian League to save the schools it managed and particularly to extend high school services through residential schools.112 Each closure was a battle by "pulpit, press and politicians"113 but they were made, school by school, normally by a complicated process of closing residences with low enrolments and transferring the remaining children to others, all the while carefully retaining the single denominational affiliation of each school.114

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In 1969, the federal government obviated the need for that careful process when it formally ended the partnership with the churches, effectively secularizing Aboriginal education.115 The department then had almost unrestrained control of the residential school system. The rate of closures in the next decade bore witness to that; by 1979, the number of schools had fallen from 52 with 7,704 students to 12 with 1,899. The withdrawal of the churches did not clear the way forward completely, however. Bands and political associations insisted on consultation when closures were proposed and pushed for "increased responsibility in the management of student residences".116 In that same vein, the National Indian Brotherhood proposed in 1971 that "residence services be contracted to Indian groups having the approval of the bands served by the respective residences."117 Communities connected with the Blue Quills school not only prevented its closure but forced the government to turn it over to the people of the Saddle Lake-Athabaska district.118 The need for such co-operation became paramount after the government accepted, in 1972, the principle of Indian control of Indian education. In line with that, the department adopted the position that "major changes in the operation and administration of individual residences will be considered only in consultation with Indian parents or their representatives."119 In the next few years six more schools in Saskatchewan followed the Blue Quills lead. By 1986, apart from a continued funding responsibility for such schools, the department virtually came to the end of the residential school road.120 The introduction of integration, the context for the final closure or transfer of the schools, was not the only significant development in the post-war period. As the nation moved north, further penetrating Indian, Métis and Inuit homelands, a whole new tier of schools was created in the Northwest Territories. Northern Aboriginal peoples had not been untouched by the residential school system in the pre-war period. Schools in British Columbia, Alberta, Saskatchewan, Ontario and Quebec had taken in children from far northern communities. Yukon Indians were served by the Anglican residential school begun at Carcross in 1902 and by the Catholic Lower Post School in British Columbia.121 In the Northwest Territories, residential schools operated at Fort Providence, Aklavik and Fort Resolution. Inuit students had been concentrated at the Roman Catholic and Anglican residential schools at Aklavik and Fort George on the eastern coast of James Bay in Quebec. There were, as well, federal and missionary day schools.122 In March 1955, the government, through the Department of Northern Affairs and National Resources, incorporated these largely church-initiated developments into an official educational strategy.123 This administrative arrangement had been chosen to allow "a single system of schools for children of all races", facilitating "greater economy of effort" and removing "any element of segregation".124 There any substantial differences with the southern system ended. The presumptive scenario and educational philosophy, the vision and the attitudes toward Aboriginal people that underlay this system, bore considerable resemblance to what they had been in the south. Growing scarcity in the resources that supported the traditional hunting and gathering culture, caused in part by

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incursions into the region by resource development, combined with a dramatic fall in the price of fur and the rapid growth of population — tied, the government suggested, to improved medical services125 — provided both the need and the opportunity for a new life. It was the government's announced belief that as "[c]ivilization is now advancing into the Arctic areas at such a rapid pace...[it] is therefore essential that [Aboriginal people] be assisted in every possible way to face the future in a realistic manner — in a way which will result in their becoming true Canadian citizens...".126 That assistance was to come primarily by way of "an extensive program of construction of schools and hostels to provide better education."127 By 1969-1970, as plans were finalized to transfer education to the government of the Northwest Territories,128 the Northern Affairs department had completed a network of schools that included eight "large pupil residences", with room for an average of 150 children each, and a series of some eleven "small hostels" for up to 25 children in Arctic locations. The annual enrolment averaged some 1,200 children.129 Despite the fact that this development occurred in the 1950s and '60s, the 'frontier' nature of the north meant that the system stressed the value of residential schools and hostels. They were characterized, in this latest assimilative campaign, in terms that harked back to Davin's era, as "the most effective way of giving children from primitive environments, experience in education along the lines of civilization leading to vocational training to fit them for occupations in the white man's economy."130 As in the south, the hostels brought children of "nomadic parents" into contact with day schools to facilitate the "complete integration of the education of the Indians and Eskimos in the north with white children living in the same area." Again, the system would employ the acculturative medium of "provincial curricula", with teachers being "encouraged to adapt these to the special needs of the Eskimo child." Residential schools and hostels were to make not only an educational contribution but also, Northern Affairs predicted, a wider socializing, civilizing function that would serve educational advancement. With respect to Inuit, for example, they would have the advantage of removing children from homes that lacked "all the more desirable habits of sanitation, cleanliness and health since the tents and snow houses in which they live are so small and their way of life is so primitive." In the schools, it would be possible to carry out "adequate health education programmes" which, with improvements on the traditional diet, would "make them better able to carry on with their schooling", which would in turn ensure their "orderly integration into the white economy."131 In the north, as in the south in the days before integration, the government with its church partners presumed to stand in the place of the children's parents, taking children into residential schools so that they could "face the future in a realistic manner" — that being as "true Canadian citizens". Unfortunately, the record of this national presumption, whether traced in the north or the south cannot be drawn as a "circle of civilized conditions."

2. Systemic Neglect: Administrative and Financial Realities 326

In any evaluation of the residential school record throughout its long history, a persistent reality appears amidst shifting vision and policies. Not only did the system fail to transport Aboriginal children through the classroom to the desired assimilative destination — or even, as Davey's 1968 record witnessed, to provide adequate levels of education — it failed to cherish them. In the building, funding and management of those purported "circles of civilized conditions", it failed to make of those schools homes where children would always be well-clothed and fed, safely housed and kindly treated. Even in the post-war period, administrative and financial reforms adopted in the midst of the general reorganization of Aboriginal education could not retrieve the situation and did not reverse the chronic neglect of the system, which forced children to live in conditions and endure levels of care that fell short of acceptable standards. The persistently woeful condition of the school system and the too often substandard care of the children were rooted in a number of factors: in the government's and churches' unrelieved underfunding of the system, in the method of financing individual schools, in the failure of the department to exercise adequate oversight and control of the schools, and in the failure of the department and the churches to ensure proper treatment of the children by staff. Those conditions constituted the context for the neglect, abuse and death of an incalculable number of children and for immeasurable damage to Aboriginal communities. This is not the story of an aging nineteenth century structure falling into decay but of flaws, inherent in the creation and subsequent management of the system, that were never remedied. From Confederation, with two schools in operation, the system grew at the rate of some two schools a year, so that by 1904 there were 64 schools. Such growth was not the product of forethought, of a developmental strategy controlled by the government or by the department of Indian affairs. Rather it was the product of federal reactions to the force of missionary efforts across the country and the considerable force of the churches' political influence in Ottawa by which they secured funds to operate the schools.132 No better summary of the process of building the system can be given than that contained in a departmental briefing to the minister, Charles Stewart, in 1927: "It thus happens that Churches have been pioneers in the remote parts of the country, and with missionary funds have put up buildings and induced the department to provide funds for maintenance."133 Though its senior officials were themselves dedicated to the concept of residential education, the department was in a sense driven before a whirlwind of missionary activity. No matter which way it turned — in the west, the north and into British Columbia — as it moved to implement Davin's industrial school design, the department found schools already constructed and holding classes for children. By 1907 — with 77 schools on the books, the great majority of them established by the churches, and with no sign of the flood of new schools or church petitions for support waning — the senior clerk in the education section, Martin Benson, proclaimed, with evident exasperation, "The clergy seem to be going wild on the subject of Indian education and it is time some limit should be fixed as to their demands."134

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Indeed, the department had already tried, unsuccessfully, to bring the system, especially its rapidly rising costs, under control. By order in council in 1892, the department introduced what Vankoughnet termed a "correct principle" — a per capita grant arrangement that remained in force until 1957.135 This principle was attractive because, in theory at least, it would enable the department to "know exactly where we stand", limiting the federal contribution to the schools to a fixed annual figure tied to enrolments.136 This attempt by the department to "relieve the pressure of present expenditure" and to institute "economical management" on the part of the churches, to quote the order in council, was a total failure. In limiting the liability of the department, the per capita system automatically threw an increased financial burden onto the shoulders of the churches. In the case of schools where the per capita grant did not meet a large enough part of the operating costs, which were impossible to standardize owing to the differing circumstances of schools — location, access to supplies, the availability of students — or where school management continued to be faulty, churches soon claimed that their funds were oversubscribed. They returned to Ottawa, cap in hand, for additional funding and yearly made demands for increases in per capita rates. By 1904, the collective deficit was $50,000 and rising, and the auditor general demanded yet tighter control — "A rigid inspection of financial affairs should be made on behalf of the government at least once a year."137 The auditor general was not alone in pushing for reform. In 1906 the Protestant churches submitted their Winnipeg Resolutions, drawn up at a conference on education. These reiterated demands they had been making each year for increased per capitas, upgrading of schools at government expense, and increased allocations for teachers' salaries.138 The resolutions and the deputy superintendent general's admission that the financial ills of the system lay in underfunding139 rather than, as the department charged constantly, in the inefficient and extravagant hands of church appointed principals, brought on the second attempt to bring order to the system. This took the form of contracts between the government and the churches, signed in 1911, in which, the minister promised, the whole conduct and management of these schools would be covered...the responsibilities of each toward the other would be definitely fixed and the financial straits in which the churches found themselves...would in a measure be relieved by the Government.140 The minister was as good as his word — in part. New, higher per capita rates, recognizing regional cost differences, were adopted,141 and the contracts dealt with the obligations of the churches and the government, establishing the department as senior partner in the joint management of the schools. It had primary responsibility for setting standards of care and education, including the appointment and dismissal of teachers, and it reserved the right to cancel the contract pertaining to any school not being operated according to the regulations it formulated. To that end, the churches had to hold the schools ready for inspection by the department.142

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The contracts were meant to mark a new beginning for the system, laying the basis for "improved relations" between the department and the churches that were in turn to result "in benefit to the physical condition and intellectual advancement of the Indian children."143 Such hopeful predictions were not, however, the substance of effective reform. The system soon fell back into funding and management difficulties. The contracts were to be reviewed and renewed at the end of five years, but they never were and without any legal agreement to bind the parties, they drifted back into the previous "unbusinesslike lack of arrangement"144 and into discord over operation of the system. On the financial front, government intentions were overborne by a long string of excuses for continued underfunding. The First World War and then the Depression prevented significant increases or clawed back, in whole or part, those the department was able to allocate.145 While the Second World War pulled the country out of the Depression, it also meant cuts "to almost every appropriation"146 and made the department realize that "it would be exceedingly difficult to secure the funds necessary...at any time during the years that lie ahead of us."147 As a result, there were never enough funds in the pre-Second World War era to satisfy the appetite of the churches or to prevent them from again encountering substantial deficits.148 While the department publicly contested the churches' assertion of how desperate the financial situation was, privately it had its own figures that demonstrated dramatically that the per capita, pegged at $180 in 1938, was "exceptionably low" and inadequate for the needs of the children, particularly in relation to the funding of other residential care facilities. Hoey informed the deputy superintendent general, H. McGill, that the province of Manitoba provided grants of $642 and $550 per capita respectively to the School for the Deaf and the School for Boys. Private institutions in the province were also funded more generously. The Knowles School for Boys received $362 for each boy from the Community Chest, and the Catholic church provided St. Norbert's Orphanage with $294 per capita. The residential schools fared no better in comparison with funding for similar institutions in the United States, where the Child Welfare League of America estimated that the average per capita grant of large child care institutions was $541, with smaller ones running only as low as $313.149 The cumulative weight of underfunding of the system throughout this period, which pressed down on the balance books of the churches and the department and drove individual schools into debt, was nothing compared to its consequences for the schools and their students. Badly built, poorly maintained and overcrowded, the schools' deplorable conditions were a dreadful weight that pressed down on the thousands of children who attended them. For many of those children it proved to be a mortal weight. Scott, reviewing the history of the system for the new minister, Arthur Meighen, in 1918, noted that the buildings were "undoubtedly chargeable with a very high death rate among the pupils."150 When the churches and the department signed the 1911 contracts, it was clear to all the partners that there was a crisis in the conditions and sanitation of the schools and, therefore, in the health of the children. They could not have failed to know it for they had

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at hand two reports, one by the department's chief medical officer, Dr. P.H. Bryce, outlining in a most sensational manner the tragic impact of tuberculosis on the children, and another by a departmental accountant, F.H. Paget, who had been detailed to survey the condition of the schools in the west. Throughout the initial stages of the unrestrained building of the system, the department had been, Duncan Campbell Scott admitted, "intensely apprehensive" about the quality and safety of the schools, which the churches routinely "erected on very primitive plans".151 According to an assessment of the system by Martin Benson in 1897, the department's own record was not a great deal better. Many of the buildings it was responsible for constructing, in association with the department of public works, had "been put up without due regard for the purpose for which they would be required, hurriedly constructed of poor materials, badly laid out without due provision for lighting, heating or ventilating."152 The department had, in fact, insisted in the north-west on the "simplest and cheapest construction."153 Paget's 1908 report revealed the legacy of such a policy. The majority of the 21 schools he inspected were, like St. Paul's boarding school near Cardston, Alberta, "quite unfit for the purpose it is being used", with faulty heating, drainage and ventilation. The schools were "not modern in any respect." Moreover, his comments drew out what had become a tragic commonplace in the department — the connection between the condition of the buildings and disease, particularly the scourge of tuberculosis.154 From early in the history of the system, alarming health reports had come into the department from local officials and doctors tracing out a pattern of interwoven factors contributing to "the present very high death rate from this disease": overcrowding, lack of care and cleanliness and poor sanitation.155 Overcrowding, the most critical dynamic in the spread of tuberculosis, was systemic,156 a predictable outcome of underfunding and of the per capita grant arrangement that put a premium on each student taken from a community. Senior church officials lobbied the government constantly not only for higher rates but for implementation of a compulsory education regime that would ensure that the schools earned the maximum grant possible.157 For their part, the principals, unable to make ends meet, as rates were rarely increased to the level of real costs, pushed to have their authorized enrolments raised. The pressure to keep schools full meant there was a tendency to take as many children as possible, often going past wise limits, with disastrous consequences.158 This led to bizarre recruitment techniques, including, local officials reported, "bribing and kidnapping".159 As well, officials were not very careful about the health of the children they brought into the schools. The Anglican Bishop of Caledonia in British Columbia admitted candidly, "The per capita grant system encourages the taking in of those physically and intellectually unfit simply to keep up numbers".160 The impact of Bryce's report, submitted in 1907, which in part only repeated what was already in departmental files, stemmed from his statistical profile of the extent of tuberculosis among children in western schools. It became the stuff of headlines and critical editorial comment. Saturday Night concluded that "even war seldom shows as

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large a percentage of fatalities as does the education system we have imposed upon our Indian wards."161 The percentage was indeed shocking. Bryce's death toll for the 1,537 children in his survey of 15 schools was 24 per cent, and this figure might have risen to 42 per cent if the children had been tracked for three years after they returned to their reserves.162 The rate varied from school to school going as high as 47 per cent at Old Sun's on the Blackfoot reserve. Kuper Island school in British Columbia, which was not included in Bryce's sample, had a rate of 40 per cent over its 25-year history.163 While a few officials and churchmen rejected Bryce's findings and attacked him as a "medical faddist",164 most had to agree with him,165 and no less an authority than Scott asserted that, system-wide, "fifty per cent of the children who passed through these schools did not live to benefit from the education which they had received therein."166 Not only was this, in the words of Saturday Night, "a situation disgraceful to the country",167 but in the opinion of S.H. Blake, QC, who assisted in negotiations for the 1911 contracts, because the department had done nothing over the decades "to obviate the preventable causes of death, [it] brings itself within unpleasant nearness to the charge of manslaughter."168 The churches too bore responsibility for what Bryce characterized, in a pamphlet published in 1922, as a "national crime",169 but the department had a special responsibility. In the order in council of 1892 and in the 1911 contracts, it had taken to itself the authority to set standards and had instituted a regulation requiring that prospective students receive a health certificate signed by a doctor. This check, which would supposedly prevent tubercular children being taken into the schools, was — like so many other regulations relating to care of the children, such as those regarding clothes, food and discipline — implemented carelessly by the department and ignored by many school and departmental officials. Such laxity even continued, Scott admitted, in the decades after Bryce's report.170 Indeed, in those decades, almost nothing was done about tuberculosis in the schools, so that Bryce's charge that "this trail of disease and death has gone on almost unchecked by any serious efforts on the part of the Department of Indian Affairs",171 was sorrowfully correct. The department did not even launch a full investigation of the system. Again the explanation for this persistent carelessness was, in part, the government's refusal to fund the schools adequately to carry out a program of renovations to improve health conditions, which senior officials themselves proposed, or to undertake special measures, recommended by health authorities, to intervene in the case of sick children.172 In a number of instances it did implement, because it was relatively cheap, a radical course of action — mass surgery, performed on school tables, to remove teeth, tonsils and adenoids, believed to be the frequent seats of infection.173 Not surprisingly, conditions did not improve; schools in 1940 were still not being maintained "in a reasonable state",174 and the few reports extant on the health of the children, which are scattered and sketchy (for the department never set up a procedure to monitor health) point to the continuation of alarmingly high rates of infection.175 The dramatic tuberculosis story, which chronicles what Bryce suggested was the government's "criminal disregard" for the "welfare of the Indian wards of the nation",176 cannot be allowed to distract attention from the fact that the care of the children in almost

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every other area was also tragically substandard. Throughout the history of the system many children were, as the principal of St. George's testified in 1922, "ill-fed and illclothed and turned out into the cold to work", trapped and "unhappy with a feeling of slavery existing in their minds" and with no escape but in "thought".177 It is difficult to assess how widespread neglect was in the area of food and clothing, for again the department had no reporting procedure, and there is evidence of a fair deal of duplicity on the part of the churches, or individual principals, anxious to make the most favourable impression. A comment in 1936 by A. Hamilton, a local departmental official, on the children at Birtle school, just outside Birtle, Manitoba, symbolizes the situation. In fairness I want to add that all the children have good clothes but these are kept for Sundays and when the children go downtown — in other words when out where they can be seen, they are well dressed.178 Such deception was often quite deliberate. "To almost everything at Round Lake", one teacher admitted, "there are two sides, the side that goes in the report and that inspectors see, and the side that exists from day to day."179 This phenomenon was widespread. It was common practice that when an official wanted to add weight to a school report, he introduced it with the remark, "There was no preparation made for my visit as I was quite unexpected."180 When it was known the official was coming, the children could be and were cowed into answering questions about their care in the way school administrators wanted.181 Despite the duplicity, reports in departmental files from school staff, local agents and inspectors establish that the system did not guarantee that all children were always properly fed and clothed. Hunger was a permanent reality: the food was often "too meagre";182 the fare was not appropriate "neither as to quantity or quality";183 the children "were not given enough to eat especially meat";184 the food supply was inadequate "for the needs of the children"; the "vitality of the children is not sufficiently sustained from a lack of nutritious food, or enough of the same for vigorous growing children."185 The same files carry images of the children that disrupt Hamilton's picture of Sunday downtown dress at Birtle school: "I have never seen such patched and ragged clothing";186 their "uniform is so old and so worn out that we do not dare show them to anyone";187 the children "are not being treated at all good, nothing on their feet, etc.";188 the children were "dirty and their clothes were disgraceful";189 and "I never had in my school a dirtier, more ill-clad or more likeable class of little folk". The children had the most ridiculous outfits. The little girls go teetering around in pumps with outlandish heels, sizes too large, or silly little sandals that wont stay on their feet — cheap lots that he [the principal] buys for next to nothing, or second hand misfits that come in bales.190 Those "second hand misfits that come in bales" signify that in these areas of care, the lack of funding by the government and the churches was yet again a major determinant in the treatment of the children. Whenever per capita rates were reduced or seen to be too low, someone was bound to point out that it would "render almost superhuman the task of

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feeding, clothing and treating the children in the manner required by the department."191 It was often "utterly impossible" to do that "from the present per capita grant",192 and thus principals took the tack of "economizing to the bone in every possible department."193 In 1937, Hoey conceded that throughout the history of the system there had never been any connection between "our payments and the cost of feeding and clothing pupils from year to year" and that principals had been left on their own to deal with "the actual costs of operation."194 While the resultant 'economizing' may have meant no more than charity clothes in some cases, in terms of food, the consequences were more drastic and damaging to the education and health of the children. To keep costs down, administrators strove to produce food and income from the school farm or orchard — an undertaking in which the children, in Scott's description of Qu'Appelle, were "simply used as so much manpower to produce revenue."195 As his comment suggests, the department was fully aware of the situation and, indeed, of the way it undercut the education program, in some instances, as at Birtle, turning it on its head. Hamilton commented, after visiting the school, that "The farm should be operated for the school — not the school for the farm."196 Agent W. Graham's 1916 review of school records at Qu'Appelle found that, owing to work, the boys were in class so infrequently that "the main idea and object of the school is being entirely neglected" and that the school had become a "workhouse".197 This practice continued until 1951 when the half-day system was abandoned. At Morley school in Saskatchewan the inspector reported that, to the detriment of their education, the principal threw "a large burden of the institutional drudgery on to the children."198 Underfunding, short rations and overwork contributed, doctors and agents across the system reported, to the children's ill-health, and some doctors even alerted the department to a connection they observed between malnutrition and tuberculosis.199 Furthermore, the range and quality of food the children did receive was affected by efforts to economize. It was a widespread practice "to sell most of the milk and eggs...in order to augment maintenance funds".200 Inspector R.H. Cairns was so disturbed by this practice in the British Columbia schools, and in particular by milk skimming to collect cream for sale, that he declared, "if I had my way I would banish every separator....The pupils need the butter fat so much."201 By many departmental accounts, the variety of food served was limited; "decidedly monotonous" was the way Benson described the "regulation school meal" in 1897 — "bread and drippings or boiled beef and potatoes".202 In fact, there appears to have been a persistent shortage of meat and fish which, unlike grains and vegetables, were difficult to secure in bulk and to store.203 Ironically, children entering a school likely left behind a better diet, provided by communities still living on the land, than what was provided by the churches and the department. Unfortunately, it is impossible to assess the nutritional value of school diets before 1946. In that year, however, the nutrition division of the department of national health and welfare surveyed the food services at eight schools. Though the department characterized the results as "fairly satisfactory", the report itself did not support such a conclusion but

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rather confirmed the impressions given by the files throughout the history of the system. The dietitians found that "mediocre" salaries secured kitchen staff who were "unqualified", carried out their "work in a careless and uninterested fashion" and thus "the food quality was not good". Poor menu planning that failed to recognize the nutritional value of certain foods, equipment that was "unfit", "antiquated cooking facilities", and bad cooking practices contributed to the "nutritional inadequacy of the children's diet", which lacked sufficient amounts of vitamins A, B and C. The children received too little meat and not enough green vegetables, whole grains, fruit, juices, milk, iodized salt and eggs.204 The dietitians laid much of the blame for the conditions they described on "financial limitations" — the same limitations that plagued every other aspect of the system and always led in the end to neglect of the children. With the benefit of hindsight, Davey's 1968 review of the system up to 1950 acknowledged that fact. Neither the churches nor the department, he charged, appeared to have had any real understanding of the needs of the children....The method of financing these institutions by per capita grants was an iniquitous system which made no provision for the establishment and maintenance of standards, even in such basic elements as staffing, food and clothing.205 All that was to have changed in 1957, when the department brought an end to the per capita system and placed the schools on a "controlled cost basis" intended to achieve "greater efficiency in their operation" as well as to assure proper "standards of food, clothing and supervision at all schools." This system was formalized by new contracts with the churches signed in 1961. The government was prepared to "reimburse each school for actual expenditures within certain limitations."206 Those limitations were translated into allowances — maximum rates set for teachers' salaries, transportation, extra-curricular activities, rental costs, building repairs and maintenance, and capital costs. In terms of standards of care, the department strove to bring the budgeting process more into line with the children's needs and regional cost differentials. In particular, with food and clothing, it attempted "to make special provision for the requirements of older children." Thus in calculating the allowances for food and clothes, the children were divided into two groups, those in grade 6 and lower grades and those in grade 7 or higher grades, with appropriate rates assigned to each.207 In addition, as early as 1953, the department began to issue directives to the schools on issues of care, and more detailed reporting procedures by principals were developed. None of this was enough, however, to prevent a continuation of problems still endemic in the system. The post-1957 record of the controlled cost system was not an improvement over the previous decades. There was in fact an underlying contradiction between the intention to close down the system and that of keeping the schools in peak physical condition. Davey himself signalled this in recommending that "expenditures should be limited to emergency repairs which are basic to the health and safety of the children" in cases "where closure is anticipated, due to integration".208 Budgeting favoured integration, which was at the centre of the department's education strategy. In a detailed brief to the

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department in 1968, the national association of principals and administrators of Indian residences pointed out that in the allocation of funds, the integration program received a much greater proportion, resulting in a situation where "our Federal schools are sadly neglected when compared with the Provincial schools."209 Indeed, a report commissioned by the department established in 1967 that the funding level was still very "low in comparison with most progressive institutional programs" in the United States and in the provincial sector.210 The principals' association went on to detail the effects of underfunding in a school-byschool survey that echoed the Paget report — a long system-wide catalogue of deferred maintenance, hazardous fire conditions, inadequate wiring, heating and plumbing, and much needed capital construction to replace structures that were "totally unsuitable and a disgrace to Indian affairs". Even schools built since the war to serve communities in areas outside the scope of integration gave evidence of faulty construction and inadequate recreation, residence and classroom space. In conclusion, the association tried to impress upon the department the seriousness of the situation. It was not prepared to accept the "old cliche: lack of funds". That was "not an excuse, nor an explanation for we know that funds do exist."211 In a memo from Davey forwarded to the deputy minister along with the association's brief, he admitted that, Although I can take exception to some of the examples given in the brief, the fact remains that we are not meeting requirements as we should nor have we provided the facilities which are required for the appropriate functioning of a residential school system.212 It was impossible to do so, for there were simply "too many of these units" and the department was too heavily committed in other areas of higher priority — in community development, integration and welfare expenditures. Nor did he think it was wise to devote effort to achieving increased appropriations for, with "the best interests of the Indian children" in mind, it was more sensible to close the system down.213 The deputy minister, J.A. Macdonald, followed this line in his reply to the principals. There was no attempt to refute their characterization of the condition of the system. The department had failed, he conceded, to carry out "necessary repairs and renovations and capital projects". This had been "simply due to financial limitations", which he was sure, taking refuge in the "old cliche", would not improve in the future.214 In the final analysis, however, the funds were inadequate and, as the association asserted, it was always the children who were "the first to feel the pinch of departmental economy".215 Schools that were part of the northern affairs system after 1955 had their own doleful history and were not above the sort of critique made by the principals' association. A harsh review of the operation of Fort Providence school concluded with the remark, "I would sooner have a child of mine in a reform school than in this dreadful institution."216 As in the south, the system did not ensure that adequate food and clothing and safe and

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healthy conditions were provided for all the children all the time. There was always, as at the Tent Hostel at Coppermine, for example, some considerable distance between intention and reality. One of the teachers there submitted a remarkable report on a hostel term during which the staff and Inuit children had had a "satisfactory and happy experience", despite the fact that their accommodations were "very cold because all the heat escaped through the chimneys, there was a constant fire hazard", the children's clothes were "unsatisfactory", and the children received a most non-traditional diet of corn beef and cabbage at most dinners, while the staff ate their "monthly fresh food supply" at the same table, so as to give "the youngsters an opportunity to model their table manners from those of the staff".217 A consulting psychologist, after a visit to the Churchill Vocational Centre, which was housed in an army barracks, commented that "I know what a rat must feel when it is placed in a maze." When he moved on to two schools in the Keewatin area, he found the buildings equally unsuitable.218 The history of Indian affairs' post-1957 determination to ensure high standards of care was no brighter than its record of repair and maintenance. At the end of the very first year of the operation of the controlled cost system, the department, on the advice of the churches and the nutrition division of the federal health department, had to raise rates, adjust the grade divisions and introduce a supplementary allowance to recognize additional costs for schools "where climatic conditions necessitate special clothing."219 Such fine tuning became a permanent feature of the 1957 system. It was, unfortunately, always fruitless, for the funds provided by the department to feed and clothe the children continually lagged behind increases in cost, and thus the sorrowful consequences for the children went unrelieved.220 There was no improvement after 1969, when the government and the churches parted ways and the department took direct control of the system. A subsequent survey in the Saskatchewan region revealed that allowances were not adequate to provide proper clothes, especially for children in hostels who were attending provincial schools, or food or recreational activities. One administrator reported that he had to serve "more often than we should food such as hot dogs, bologna, garlic sausages, macaroni etc....the cheapest food on the market and still I can hardly make it."221 Most of the others in the survey — and by implication most administrators and, therefore, most children in the system — were having the same experience.222 As in the case of tuberculosis, failure to provide adequate nutrition was rooted not only in the iniquitous per capitas and chronic underfunding, but in the fact that departmental regulations intended to guarantee good care were administrative fictions. From the beginning of the system, and subsequently in the order in council of 1892 and the 1911 contracts, the department stipulated that to receive funds schools had to be "kept up to a certain dietary [standard]"223 — a regulated scale of rations outlining the foodstuffs and the amounts children were to receive weekly. This engendered considerable controversy between the department and the churches over the adequacy of the scale, how realistic it was given the level of grants, and the degree to which the principals adhered to it.224 In fact, the 'dietary' was largely ignored by everyone, including the department which did not, according to Benson, inspect the schools on any regular basis.225 Benson even

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repudiated the scale, explaining in 1904 that "it is not now and was never enforced" and that it was only ever a "guide...to arrive at the cost of feeding pupils."226 Thereafter, any pretence that there was actually an enforceable regulation was abandoned and, in 1922, the churches and principals were given responsibility for drawing up their own meal plans, which the department was willing to submit to the "Health Department in Ottawa for their criticism."227 In subsequent decades, the department's relationship with nutrition services at the department of health remained purely consultative, with consultations being so irregular that the service told Indian affairs in 1954 that they had "almost lost touch with most of the residential schools due to the lack of requests for our services."228 After 1957, the inspection service expanded, inspections became more regular, and food allowances were "established to provide a standard equivalent to the diet recommended by Canada's Food Rules".229 What did not change however, was the department's lax manner of responding to recommendations in inspection reports. Like the dietary standards of the earlier part of the century, they were not enforced but routinely passed along to principals with no more than a suggestion that everything be done "that can be done to live up to the recommendations of the dietician." Problems were thrown back into the laps of principals, who were to "see what can be done about them in a constructive way."230 Despite the department's regulatory authority, which tied grants to the maintenance of standards, there was no stern intervention on behalf of the children, so that even the most egregious neglect by church authorities and principals could drag on unresolved for years.231 In light of such careless management, what Hamilton wrote of Elkhorn school in 1944 might stand as the motto of the system: "It is not being operated, it is just running."232 In reviewing the long administrative and financial history of the system — the way the vision of residential education was made real — there can be no dispute: the churches and the government did not, in any thoughtful fashion, care for the children they presumed to parent. While this is traceable to systemic problems, particularly the lack of financial resources, the persistence of those problems and the unrelieved neglect of the children can be explained only in the context of another deficit — the lack of moral resources, the abrogation of parental responsibility. The avalanche of reports on the condition of children — hungry, malnourished, ill-clothed, dying of tuberculosis, overworked — failed to move either the churches or successive governments past the point of intention and on to concerted and effective remedial action. Neglect was routinely ignored, and without remedial action, it became a thoughtless habit. It was, however, only one part of a larger pattern of church and government irresponsibility writ more starkly in the harsh discipline, cruelty and abuse of generations of children taken into the schools. Here, too, the record is clear. When senior officials in the department and the churches became aware of cases of abuse, they failed routinely to come to the rescue of children they had removed from their real parents or, as they

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claimed ironically in the case of Category 3, children they had rescued from situations of neglect in communities.

2. Systemic Neglect: Administrative and Financial Realities In any evaluation of the residential school record throughout its long history, a persistent reality appears amidst shifting vision and policies. Not only did the system fail to transport Aboriginal children through the classroom to the desired assimilative destination — or even, as Davey's 1968 record witnessed, to provide adequate levels of education — it failed to cherish them. In the building, funding and management of those purported "circles of civilized conditions", it failed to make of those schools homes where children would always be well-clothed and fed, safely housed and kindly treated. Even in the post-war period, administrative and financial reforms adopted in the midst of the general reorganization of Aboriginal education could not retrieve the situation and did not reverse the chronic neglect of the system, which forced children to live in conditions and endure levels of care that fell short of acceptable standards. The persistently woeful condition of the school system and the too often substandard care of the children were rooted in a number of factors: in the government's and churches' unrelieved underfunding of the system, in the method of financing individual schools, in the failure of the department to exercise adequate oversight and control of the schools, and in the failure of the department and the churches to ensure proper treatment of the children by staff. Those conditions constituted the context for the neglect, abuse and death of an incalculable number of children and for immeasurable damage to Aboriginal communities. This is not the story of an aging nineteenth century structure falling into decay but of flaws, inherent in the creation and subsequent management of the system, that were never remedied. From Confederation, with two schools in operation, the system grew at the rate of some two schools a year, so that by 1904 there were 64 schools. Such growth was not the product of forethought, of a developmental strategy controlled by the government or by the department of Indian affairs. Rather it was the product of federal reactions to the force of missionary efforts across the country and the considerable force of the churches' political influence in Ottawa by which they secured funds to operate the schools.132 No better summary of the process of building the system can be given than that contained in a departmental briefing to the minister, Charles Stewart, in 1927: "It thus happens that Churches have been pioneers in the remote parts of the country, and with missionary funds have put up buildings and induced the department to provide funds for maintenance."133 Though its senior officials were themselves dedicated to the concept of residential education, the department was in a sense driven before a whirlwind of missionary activity. No matter which way it turned — in the west, the north and into British Columbia — as it moved to implement Davin's industrial school design, the department found schools already constructed and holding classes for children. By 1907 — with 77 schools on the books, the great majority of them established by the churches, and with no

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sign of the flood of new schools or church petitions for support waning — the senior clerk in the education section, Martin Benson, proclaimed, with evident exasperation, "The clergy seem to be going wild on the subject of Indian education and it is time some limit should be fixed as to their demands."134 Indeed, the department had already tried, unsuccessfully, to bring the system, especially its rapidly rising costs, under control. By order in council in 1892, the department introduced what Vankoughnet termed a "correct principle" — a per capita grant arrangement that remained in force until 1957.135 This principle was attractive because, in theory at least, it would enable the department to "know exactly where we stand", limiting the federal contribution to the schools to a fixed annual figure tied to enrolments.136 This attempt by the department to "relieve the pressure of present expenditure" and to institute "economical management" on the part of the churches, to quote the order in council, was a total failure. In limiting the liability of the department, the per capita system automatically threw an increased financial burden onto the shoulders of the churches. In the case of schools where the per capita grant did not meet a large enough part of the operating costs, which were impossible to standardize owing to the differing circumstances of schools — location, access to supplies, the availability of students — or where school management continued to be faulty, churches soon claimed that their funds were oversubscribed. They returned to Ottawa, cap in hand, for additional funding and yearly made demands for increases in per capita rates. By 1904, the collective deficit was $50,000 and rising, and the auditor general demanded yet tighter control — "A rigid inspection of financial affairs should be made on behalf of the government at least once a year."137 The auditor general was not alone in pushing for reform. In 1906 the Protestant churches submitted their Winnipeg Resolutions, drawn up at a conference on education. These reiterated demands they had been making each year for increased per capitas, upgrading of schools at government expense, and increased allocations for teachers' salaries.138 The resolutions and the deputy superintendent general's admission that the financial ills of the system lay in underfunding139 rather than, as the department charged constantly, in the inefficient and extravagant hands of church appointed principals, brought on the second attempt to bring order to the system. This took the form of contracts between the government and the churches, signed in 1911, in which, the minister promised, the whole conduct and management of these schools would be covered...the responsibilities of each toward the other would be definitely fixed and the financial straits in which the churches found themselves...would in a measure be relieved by the Government.140 The minister was as good as his word — in part. New, higher per capita rates, recognizing regional cost differences, were adopted,141 and the contracts dealt with the obligations of the churches and the government, establishing the department as senior partner in the joint management of the schools. It had primary responsibility for setting

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standards of care and education, including the appointment and dismissal of teachers, and it reserved the right to cancel the contract pertaining to any school not being operated according to the regulations it formulated. To that end, the churches had to hold the schools ready for inspection by the department.142 The contracts were meant to mark a new beginning for the system, laying the basis for "improved relations" between the department and the churches that were in turn to result "in benefit to the physical condition and intellectual advancement of the Indian children."143 Such hopeful predictions were not, however, the substance of effective reform. The system soon fell back into funding and management difficulties. The contracts were to be reviewed and renewed at the end of five years, but they never were and without any legal agreement to bind the parties, they drifted back into the previous "unbusinesslike lack of arrangement"144 and into discord over operation of the system. On the financial front, government intentions were overborne by a long string of excuses for continued underfunding. The First World War and then the Depression prevented significant increases or clawed back, in whole or part, those the department was able to allocate.145 While the Second World War pulled the country out of the Depression, it also meant cuts "to almost every appropriation"146 and made the department realize that "it would be exceedingly difficult to secure the funds necessary...at any time during the years that lie ahead of us."147 As a result, there were never enough funds in the pre-Second World War era to satisfy the appetite of the churches or to prevent them from again encountering substantial deficits.148 While the department publicly contested the churches' assertion of how desperate the financial situation was, privately it had its own figures that demonstrated dramatically that the per capita, pegged at $180 in 1938, was "exceptionably low" and inadequate for the needs of the children, particularly in relation to the funding of other residential care facilities. Hoey informed the deputy superintendent general, H. McGill, that the province of Manitoba provided grants of $642 and $550 per capita respectively to the School for the Deaf and the School for Boys. Private institutions in the province were also funded more generously. The Knowles School for Boys received $362 for each boy from the Community Chest, and the Catholic church provided St. Norbert's Orphanage with $294 per capita. The residential schools fared no better in comparison with funding for similar institutions in the United States, where the Child Welfare League of America estimated that the average per capita grant of large child care institutions was $541, with smaller ones running only as low as $313.149 The cumulative weight of underfunding of the system throughout this period, which pressed down on the balance books of the churches and the department and drove individual schools into debt, was nothing compared to its consequences for the schools and their students. Badly built, poorly maintained and overcrowded, the schools' deplorable conditions were a dreadful weight that pressed down on the thousands of children who attended them. For many of those children it proved to be a mortal weight. Scott, reviewing the history of the system for the new minister, Arthur Meighen, in 1918,

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noted that the buildings were "undoubtedly chargeable with a very high death rate among the pupils."150 When the churches and the department signed the 1911 contracts, it was clear to all the partners that there was a crisis in the conditions and sanitation of the schools and, therefore, in the health of the children. They could not have failed to know it for they had at hand two reports, one by the department's chief medical officer, Dr. P.H. Bryce, outlining in a most sensational manner the tragic impact of tuberculosis on the children, and another by a departmental accountant, F.H. Paget, who had been detailed to survey the condition of the schools in the west. Throughout the initial stages of the unrestrained building of the system, the department had been, Duncan Campbell Scott admitted, "intensely apprehensive" about the quality and safety of the schools, which the churches routinely "erected on very primitive plans".151 According to an assessment of the system by Martin Benson in 1897, the department's own record was not a great