The Royal Proclamation and Indigenous legislation (Indian Act) Before it became a colonizing force, the Crown acted as a mechanism that enabled settlers to engage in meaningful negotiations and ceremony with civilizations that were different from their own. Confederation later disrupted these relationships, eclipsing treaties and placing them under the control of the federal government –
The Royal Proclamation and Indigenous legislation (Indian Act)
Before it became a colonizing force, the Crown acted as a mechanism that enabled settlers to engage in meaningful negotiations and ceremony with civilizations that were different from their own. Confederation later disrupted these relationships, eclipsing treaties and placing them under the control of the federal government – without the consent of Indigenous Peoples.
The Indian Act did not simply appear out of thin air but was heavily influenced by the legislative foundation established prior to its passage. Central here is the Royal Proclamation, 1763, which recognized Indigenous Peoples as a distinct political unit within the colonial system, as well as legislation passed by Canadian authorities in the mid-1800s.
The Royal Proclamation, 1763
During the process of colonization, Europeans undertook several strategies in dealing with these populations. In some cases, this involved forced relocation and even genocide. In other cases, Europeans implemented strategies of cohabitation, which were meant to achieve peaceful relations between settlers and indigenous populations.
One of the most important of these cohabitation approaches can be found in the Royal Proclamation of 1763, which was issued by King George III of Britain. The Proclamation established a system of government for former French colonies in North America, which Britain had won following the Seven Years War. Also included was a basic framework for relations with North American Indigenous. As such, it is often referred to as an “Indian Magna Carta” or an “Indian Bill of Rights.”
Central to the Royal Proclamation was the separation of Indigenous lands from those forming parts of the North American colonies, with the former being reserved for the exclusive use and possession of Indigenous Peoples. Moreover, the Royal Proclamation implemented a process by which Indigenous lands could be purchased for British settlement and development. An Indigenous group could only transfer lands to the British Crown, not to European settlers or other colonial officials. This surrender process was to occur on a formal nation-to-nation basis, from the Indian Nation to the Crown, and was to be done in a public process with the consent of the Indigenous group involved.
By instituting an Indigenous right to land and a formal nation-to-nation land transfer process, the Royal Proclamationrecognized Indigenous groups in North America as autonomous and self-governing actors (Report of the Royal Commission on Indigenous Peoples, 1996). Indigenous were not simply private individuals, akin to other British subjects. Rather, they were distinct Peoples and political units within the British imperial system, with the right to negotiate with the Crown as autonomous Nations.
This is not to suggest a relationship of complete autonomy and equality between Indigenous and the Crown. The Royal Proclamation recognized Indigenous as groups living under Crown protection on lands within British dominions and territories. Nevertheless, the Crown could not simply appropriate Indigenous lands whenever and however it saw fit. Instead, it was required to engage in a formal process of negotiation, obtain consent and to compensate Indigenous Nations for the lands taken up for settlement.
Also central to the Royal Proclamation was the concern that Indigenous Peoples were being exploited in their dealings with European settlers and colonial officials. In this context, the Royal Proclamation recognized a duty on the part of the Crown to act as a protector of Indigenous Peoples in their relations with colonial society. Over time, this has been formally recognized in terms of a fiduciary relationship, in which the Crown is recognized as a “trustee” for Indigenous Peoples, with the duty to act in their interests.
Indigenous Legislation Prior to the Indian Act, 1867
At the time of the Royal Proclamation, 1763, responsibility for Indigenous affairs in Canada lay with British imperial authorities. By the mid-1800s, however, Britain began to transfer this responsibility to the Canadian colonies themselves. Between 1850 and 1876 (when the first Indian Act was passed), Canadian authorities enacted several key pieces of legislation, which strongly influenced the nature of the Indian Act itself.
The first of these was An Act for the Better Protection of the Lands and Property of Indians in Lower Canadaand An Act for the protection of Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury, which were passed by the Province of Canada (then a British colony) in 1850. These statutes are important in that they represented the first attempt to define “Indian” and who would receive the rights and duties of Indian status. Under the acts, the term “Indian” was defined broadly to include the following: 1) any person deemed to be Indian by birth or blood; 2) any person reputed to belong to a particular band or body of Indians; and 3) any person who married an Indian or was adopted by Indian (Indian and Northern Affairs Canada, 1991). While the definition was broadly construed, it is important to note that it assumed for the government the responsibility for deciding who was an Indigenous. In other words, Indigenous groups themselves were not given the power to define their own communities. This power, instead, lay in the hands of non-Indigenous authorities.
Another important statute was An Act to Encourage the Gradual Civilization of Indian Tribes in this Province, and to Amend the Laws Relating to Indians, passed by the Province of Canada in 1857. Commonly referred to as the Gradual Civilization Act, this statute was the first to introduce the concept of enfranchisement or the process by which Indian lost their Indian status and became full British subjects. In introducing the Act, the colonial government viewed enfranchisement as a privilege for Indians, by which they could gain their freedom from the protected Indian status and gain the rights of full colonial citizenship, such as the right to vote. It is at this point that the strategies of civilization and assimilation begin their legislative existence, with colonial authorities encouraging Indians to forgo their Indian status and be drawn into the larger colonial society as regular citizens (and, hence, become “civilized”).
Under the Act, only Indian men could seek enfranchisement. In order to do so, they had to be over the age of 21, able to read and write in either English or French, be reasonably well educated, free of debt, and of good moral character as determined by a commission of non-Indigenous examiners (Report of the Royal Commission on Indigenous Peoples, 1996). Once enfranchised, the person was entitled to receive up to 50 acres of land from the reserve on which they lived and a per capita share of treaty annuities and other band monies. Enfranchisement was to be fully voluntary by the man seeking it. However, an enfranchised man’s wife and children automatically lost their Indian status, regardless of whether they so desired it or not.
In 1860, the Province of Canada passed the Indian Lands Act. An important element of this Act was the centralization of control over Indian affairs for the colony. The Act created the office of the Chief Superintendent of Indian Affairs and transferred all authority for Indians and their lands in the Province of Canada to this single official. Moreover, the Chief Superintendent was given very broad discretionary powers over reserve Indians. This centralization continued in 1867, when the Province of Canada was united with Nova Scotia and New Brunswick to create the new nation of the Dominion of Canada. Section 91(24) of the Constitution Act, 1867, gave legislative authority over Indians and their lands to the federal Parliament, removing it from the provincial legislatures.
In 1869, the Government of Canada passed An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria. This Act is significant in that it was the first to introduce the notion of self-government for Indians on reserves. Under the Act, Indigenous tribes or bands were permitted to elect chiefs and band councils for the purpose of general administration on reserves. These elected officials were granted limited bylaw powers and were elected to terms of three years. It is important to note many Indigenous groups did have their own democratic practices at the time. The Act granted the government the power to impose colonial democratic institutions on them, regardless of what Indigenous groups desired. Furthermore, Indian women were excluded from voting for band chiefs and councils (women in general were excluded from voting at this time, as women’s suffrage was not achieved in Canada until the early 1900s).
In addition to a mechanism for Indigenous self-government, the 1869 Act included other key provisions. It prohibited the sale of alcohol to Indians, on the paternalistic grounds of protecting Indians from themselves. Furthermore, the Act instituted a compulsory enfranchisement provision. Under the Gradual Civilization Act, enfranchisement was a completely voluntary process, by which Indian status could only be lost at an individual’s choosing. Under the 1869 Act, however, Indigenous women who married non-Indigenous men automatically lost their Indian status, regardless of whether or not they so desired it. Moreover, any children resulting from the marriage would also be denied Indian status. This provision continued with the strategy of assimilation, as many Indigenous women, and their children, forcefully lost their Indian status and gained Canadian citizenship.
White Spotted Horse, Anishinaabe, Treaty 2 Territory