Economies prior to the late 20th Century
Nine years after Confederation, while the Numbered Treaties were being negotiated, the Indian Act (1876) was passed. This, “An Act to Amend and Consolidate the Laws Respecting Indians”, is still with us today. Can you think of any other racialized laws in Canada?
The Indian Act has been amended dozens of times since its creation, for example in 2015 and 2017. There are 4 main things to know about the Indian Act:
- The Indian Act does not outline the government’s obligations to First Nations. Obligations toward First Nations, arising from the Treaties, are not set forth in the Indian Act or anywhere else.
- The Indian Act pertains only to Status Indians. Status Indians are descendants of First Nations who signed Treaties or who became members of reserve communities, if they meet certain criteria related to having married only other Status Indians. The government keeps the Indian Register, a list of Status Indians.
- In a nutshell, the Indian Act protects the reserve land base and authorizes the federal government to manage any money that might be earned from the reserve or that might otherwise accrue to the Band. There are regulations concerning fair distribution of land use revenues among Status Indians, for passing money to the heirs of Status Indians, for democratic representation of Status Indians at the Band level, and for maintaining good living conditions on reserve.
- The Indian Act specifies how Chief and Council are to be elected.
The bottom line is this:
“In the event of any conflict between any regulation made by the Superintendent General and any rule or regulation made by any band, the regulations made by the Superintendent General shall prevail.” (1914 Ch. 35 s. 6).
The Indian Act protects reserve lands and their minerals, trees and wildlife from trespassing and exploitation. In 1906 a provision was added forbidding anyone from taking totem poles and other art works from a reserve without the written consent of the government.
This is critical because many First Nations’ reserves, such as the Kanien’kehá:ka’s in Tyendinaga, had shrunk considerably though unscrupulous contracts made without the oversight of representatives of the Crown. Even after the Indian Act was passed, reserves in mainland British Columbia shrank drastically as settlers encroached. One example is that of the Squamish Nation which used to dwell in that part of Vancouver now known as False Creek.
The Indian Act did not prevent the federal government from relocating Bands to areas it preferred for them. For example, the Peguis First Nation, a signatory of Treaty 1, was enticed by the government in 1907 to leave their prime location near present-day Winnipeg for a larger piece of land 190 km north. In 1998 Canada admitted it had violated the Indian Act and agreed to compensate the Peguis $126 million. Peguis has since acquired two reserves in Winnipeg. (See Chapter 25 for more on urban reserves.) Some Inuit communities, not covered by the Indian Act, also have been subject to forced relocation.The Indian Act specifies ways to grant individual members portions of land for their own use. (More on this in Chapter 24.) It protects reserve lands, and the assets of Status persons living on reserves, from seizure by creditors, and from federal or provincial taxation. It also has clauses to protect the inheritances of widows and orphans.
To avoid conflict of interest, missionaries, educators, and government agents are prohibited from doing business with First Nations unless they have written permission from the government.
In 1886 the Act’s Section 2 declares that the reserve includes all the trees, wood, timber, soil, stone, subsurface minerals, metals and other valuables thereon or therein. However, previous and future Acts have made it clear that no removal of timber (or other resources, presumably) can be done without a license from the government.
In 1938 a revolving loan fund was set up for First Nations individuals, groups, or bands for agricultural, fishing, handicrafts or other ventures. The money comes from federal tax revenues.
Control of First Nations’ Moneys:
70. The Governor in Council may, subject to the provisions of this Act, direct how, and in what manner, and by whom the moneys arising from sales of Indian lands, and from the property held to or be held in trust for the Indians, or from any timber of Indian lands or reserves, or from any other source for the benefit of Indians (with the exception of any small sum…), shall be invested from time to time, and how the payments or assistance to which the Indians may be entitled shall be made or given, and may provide for the general management of such moneys, and direct what percentage or proportion thereof shall be set apart from time to time, to cover the cost of and attendant upon management of reserves, lands, property and moneys under the provisions of this Act, and for the construction or repair of roads passing through such reserve or lands, and by way of contribution to schools frequented by such Indians.
71. The proceeds arising from the sale or lease of any Indian lands, or from the timber, hay, stone, minerals or other valuables thereon, or on a reserve, shall be paid to the Receiver-General to the credit of the Indian fund.
There are still similar provisions in the Indian Act in 2017, such as section 61 which reads:
61. (1) Indian moneys shall be expended only for the benefit of the Indians or bands for whose use and benefit in common the moneys are received or held, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which Indian moneys are used or are to be used is for the use and benefit of the band.
61. (2) Interest on Indian moneys held in the Consolidated Revenue Fund shall be allowed at a rate to be fixed from time to time by the Governor in Council.
These provisions are still in effect. For example, every year the Kanien’kehá:ka of the Bay of Quinte in Tyendinaga, Ontario, receive money from Enbridge Inc. for a gas pipeline that runs through land that once belonged to their reserve. This money goes directly to the Consolidated Revenue Fund referred to above. The Band must request the money from Ottawa if it wants to spend it.
Flanagan (2019) reports that financial settlements of Specific Claims are also usually held in trust for First Nations, who require permission to spend the principal.
The Consolidated Revenue Fund, or more specifically the Indian Moneys Trust Fund, held 767 million dollars of First Nations money in March, 2016. The money earns interest at a low rate set by the federal government (the rate on 10-year Canadian government bonds). Over time, some of this Trust money has been lent to non-Indigenous people by the federal government, and has not been returned.
In 1918 the government is permitted to spend the band’s money on any construction, land, cattle, or machinery deemed to be in the band’s interests, even if the band does not consent. This is eventually repealed.
In 1918 the government permits itself to lease out unused agricultural land on reserves, or hire people to cultivate those lands, without the consent of the band, and to spend band money on improvements to that land or on inputs used to cultivate that land. By 2002 this has been softened to “with the consent of the Band”.
In 1919, section 141 allows the government to reduce the rent on leased reserve land, or reduce the price charged or interest collected on the sale of lands. Eventually softened to “with the consent of the band”.
Control of First Nations’ Economic Activity:
In 1876 Status or non-Status Indians are forbidden to acquire a new homestead on the western frontier.
In 1881, chapter 17 sections 1-3, the Governor in Council may now prohibit or regulate sales of “grain or root crops, or other produce grown upon any Indian Reserve” in Manitoba and beyond. These are explicitly applied to Saskatchewan and Alberta in 1906.
(1) The Governor in Council may make such provisions and regulations as may, from time to time, seem advisable for prohibiting or regulating the sale, barter, exchange or gift, by any band or irregular band of Indians, or by any Indian of any band or irregular band, in the North-West Territories, the Province of Manitoba, or the District of Keewatin, of any grain or root crops, or other produce grown upon any Indian Reserve…
(2) Any person who buys or otherwise acquires from any such Indian, or band, or irregular band of Indians, contrary to any provisions or regulation made by the Governor in Council under this Act, is guilty of an offence, and is punishable, upon summary conviction, by fine, not exceeding one hundred dollars, or by imprisonment for a period not exceeding three months, in any place of confinement other than a penitentiary, or by both fine and imprisonment.
Also in 1886, no non-band member is allowed on reserve to trade or barter goods unless licensed by the government. The government may apply provincial hunting regulations to Indians.
In 1930 the agricultural trade prohibitions are still in force and now include livestock.
In 1940 Indians, whether Status or not, are prohibited from selling wild animals or parts of wild animals, presumably including meat and hides.
In 1951 the trade restrictions are limited to the Prairie Provinces:
32. (1) A transaction of any kind whereby a band or a member thereof purports to sell, barter, exchange, give or otherwise dispose of cattle or other animals, grain or hay, whether wild or cultivated, or root crops or plants or their products from a reserve in Manitoba, Saskatchewan or Alberta, to a person other than a member of that band, is void unless the superintendent approves the transaction in writing.
32. (2) The Minister may at any time by order exempt a band and the members thereof or any member thereof from the operation of this section and may revoke any such order.
These restrictions were gradually loosened and repealed, but the restriction on agricultural sales was not removed from the Indian Act until 2014.
In 1881 the Indian Act proclaims every Indian Commissioner, Assistant Indian Commissioner, Indian Superintendent, Indian Inspector or Indian Agent a Justice of the Peace for the purposes of carrying out the regulations in the Indian Act.
In 1884 the Act specifies that any group of three or more First Nations or Métis who make requests or demands to officials in a disorderly or threatening manner be liable to two years imprisonment with or without hard labour.
1884 It gives the government authority to prohibit the sale or gift of ammunition to First Nations.
1884 Indian men become automatically enfranchised upon receiving a university degree, or becoming a minister or lawyer. That means that they lose their Indian Status, whether they want to or not. Wife and minor children also lose their Status. We will discuss enfranchisement more in Chapter 11.
1884 “Any Indian or other person who engages in or assists in celebrating the Indian festival known as the “Potlatch” or in the Indian dance known as the “Tamanawas” is guilty of a misdemeanor, and shall be liable to imprisonment for a term of not more than six nor less than two months…” This and other cultural laws are removed in 1951.
In 1927 we have “Any Indian [in the West or Northwest] who participates in any Indian dance outside the bounds of his own reserve, or who participates in any show, exhibition, performance, stampede or pageant in aboriginal costume without the consent of the Superintendent General or his authorized agent…shall on summary conviction be liable to a penalty not exceeding twenty-five dollars, or to imprisonment for one month, or to both penalty and imprisonment. This rule was still in the Act in 1970.
The 1886 edition removes band membership from any member who leaves Canada for more than five years without the permission of the government.
From 1881 on, Status Indians have the right to sue for debts owed to them, but in 1927 other legislation forbids them to hire lawyers to sue the federal government.
In 1886 the Indian Act permits the government to compel school attendance at a school of the government’s choice.
138. The Governor in Council may establish an industrial school or a boarding school for Indians, or may declare any existing Indian school to be such industrial school or boarding school for the purposes of this section.
138. (2) The Governor in Council may make regulations, which shall have the force of law, for the committal by justices or Indian agents of children of Indian blood under the age of sixteen years, to such industrial school or boarding school, there to be kept, cared for and educated for a period not extending beyond the time at which such children shall reach the age of eighteen years.
Section 138 also gives the government permission to fund the school with annuity payments or interest on moneys held in trust for the children. Later this money may only be used specifically for maintenance of the children at the school.
Section 137 speaks of fines and imprisonment for parents and guardians who do not cause their children to attend school. Later versions of the Indian Act give truant officers the right to compel attendance. In 2013 this is still in the Act:
119. (6) A truant officer may take into custody a child whom he believes on reasonable grounds to be absent from school contrary to this Act and may convey the child to school, using as much force as the circumstances require.
Ultimately, the Indian Act is amended in 2014 to end the government’s involvement with religious schools, prevent the government from using a child’s trust money for school fees, allow youth over 16 years of age to drop-out of school, and prevent the government from coercing students into attending school.
Residential schools were introduced in the early 1880s. These were to be places run by churches that would teach the English language, the Christian religion, western manners and customs, and trades. As we just learned, the Indian Act gave the federal government permission to compel attendance. Though most First Nations youth did not go to residential schools, of those that did (more than 30% of school aged children in 1944-5), many were whisked away from unwilling parents, usually moving far from home.
As if this separation from family and culture were not enough, residential schools became known for unsafe construction, inadequate heating, crowding, inadequate food, high mortality rates from illness, zero tolerance by staff of First Nations language and customs, separation of siblings, corporal punishment, and sexual abuse. Justice Murray Sinclair has estimated that as many as 6,000 children may have died at school. About ten years after the last school closed its doors (1997), Canada commissioned a Truth and Reconciliation team, led by Justice Sinclair, to fully expose and address this history. Its 2015 report shocked Canadians with accounts of the maltreatment of First Nations children (some Métis and Inuit children included), and of how devastated the children and their communities were when they returned from residential schools emotionally wounded, unable to speak their own language, conditioned to western norms, and having very little experience of good parenting.
Reserves closer to cities often had church-run day schools, not residential schools. Many of these also disregarded Indigenous culture and student welfare.
To help understand how this could have happened, we must recall that for centuries, the wealthiest people in Britain and later, in Canada, sent their children to residential schools. It was not considered unkind. It was also not generally known that collections of parentless children are magnets for sadists and perverts. And schools in remote and isolated areas attract troubled people who cannot be employed anywhere else. Now that we know, let us never forget this.
Residential schools, orphanages, and monasteries full of children continue to exist around the world.
The tragedy of family separation did not end when residential schools closed. While the schools began closing in the 1960s, more and more Indigenous children were placed for adoption by White families, an event now called “The Sixties Scoop”.
Of course, there may be some cases when fostering or adoption outside the Indigenous community is the only way to help a neglected or abused Indigenous child. But every time an agency would rather pay non-Indigenous caregivers than assist struggling Indigenous families, we have a continuation of the residential school legacy.
There are currently three hundred per cent more Indigenous children in foster care than there were in residential school at any one time.. In Alberta, between 1999 and mid-2013, 59% of all children in care were Indigenous, and 78% of children who died in care were Indigenous.
Things have been changing for the better. Since 1990, each First Nation has managed its own branch of First Nation Child and Family Services, with funding from government. It was hoped that care would be more culturally sensitive. But hampered by lack of funds, FNCFS branches have not been able to keep all children in the home community. Finally, in February 2018, Indigenous Services Minister Dr. Jane Philpott authorized FNCFS Agencies to spend whatever is necessary to keep children safe in their own communities.
Such a decision answers the first Call to Action in the Final Report of the Truth and Reconciliation Committee. The last call to action is the 94th:
We call upon the Government of Canada to replace the Oath of Citizenship with the following: “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada including Treaties with Indigenous Peoples, and fulfill my duties as a Canadian citizen.”
- Specific Claims are not Land Claims but are claims that the government has failed to meet its Treaty or other promises to an Indigenous group. ↵
- Final Report of the Truth and Reconciliation Commission of Canada, Volume 1: Summary, page 62 ↵
- C. Blackstock (2007) ↵
- Final Report of the Truth and Reconciliation Commission of Canada, Volume 1: Summary, page 141. ↵