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Statehood, Canadian sovereignty, and the attempted domestication of Indigenous legal relationsAmar Bhatia Introduction This chapter lays out how the Canadian state attempts to displace the wealth of Indigenous legal relations in what is currently known as Canada. This attempted displacement is particularly galling given the necessity of Indigenous laws, including treaties, in order to legitimate the presence of Canada. As noted by Cree international law scholar Sharon Venne: The simple fact is that, without the treaty, no one other than Indigenous Peoples has the right to live in our land. The International Court of Justice in the Western Sahara case stated that the only way for non-indigenous people to live in the lands of Indigenous Peoples is through a treaty.. . . Without the treaties, what legitimate law can the colonizers use to occupy our lands? If Canada gets rid of the treaties, what happens to the treaty rights of the non-indigenous people?[1] Notwithstanding the necessity of these treaty relations, Canada has sought to ‘domesticate’ Indigenous peoples and laws and realize its own statehood through their erasure. This chapter starts by examining an inter-state international law definition of statehood before turning to the mechanisms of Canadian law deployed in the attempt to realize that definition on these lands. These mechanisms include Canadian constitutional law and especially Canadian Aboriginal law. The latter includes the historical treaties, the Indian Act, the common law of Aboriginal title, and the negotiation of modern treaties (among other areas). I mainly focus here on the domestication of the historical treaties and the use of the Indian Act to consolidate Canadian statehood and its sovereignty at the direct expense of Indigenous laws and self-determination. Conventional markers of statehood and state sovereignty interrupt the revitalization of Indigenous modes of making and maintaining relations through treaties and adoption. Statehood and state sovereignty A working definition of statehood and state sovereignty How did settler colonialism and state sovereignty displace Indigenous peoples and the authority of their laws and legal systems? Following European colonization and settlement, these Indigenous laws and systems were severely repressed during the establishment of Canadian statehood and state sovereignty. Although not developed in accordance with Indigenous laws, statehood and sovereignty overlaps with key functions like population powers and treaty-making. The Montevideo Convention on the Rights and Duties of States (1933) is a convenient shorthand for comparing these powers. Article 1 of the Convention defines statehood as follows. The state as a person of international law should possess the following qualifications: (a) a permanent population, (b) a defined territory, (c) government, and (d) capacity to enter into relations with other states.[2] Clearly, statehood, and the incident of sovereignty, may not be useful or appropriate concepts for articulating the demands of Indigenous peoples and nations, either generally or in the context of treaty relations. Some have referred to them as inappropriate concepts that are, in many ways, rotten to their core.[3] But statehood and sovereignty can be useful as comparative aids to understand minimum factors that allow a political community to exist and reproduce itself in seeming perpetuity.[4] Time plays an important part here, including the emphasis in international law (most of the time) on the permanence of a population, the stability of the political community, and the definition of territories through clear borders and frontiers.[5]1 am thus using the attributes of statehood and the incident of sovereignty here as a heuristic to compare what Canada has accumulated in order to maintain itself over time and in contrast to what it has taken or negotiated away from Indigenous nations to their continuing detriment. To put it differently, and as asserted by then Chief Justice Lamer of the Supreme Court of Canada (SCC): “we are all here to stay”.[6] But how exactly is a nation here to stay?[7] Lands and people are necessary parts of the answer, but settler societies have taken, and continue to take, both aspects from Indigenous nations.[8] In a landmark UN study on treaties, Special Rapporteur Martinez noted that Indigenous peoples have been deprived of (or saw greatly reduced) three of the four essential attributes on which their original status as sovereign nations was grounded, namely their territory, their recognized capacity to enter into international agreements, and their specific forms of government. Not to mention the substantial reduction of their respective populations . . . due to a number of factors, including assimilationist policies.[9] In the sections that follow, I look briefly at aspects of the statist reduction and occupation of these attributes that are necessary for Indigenous continuity: treaty relations, territory, and people. In other work, I argue that the return or expansion of these attributes turns on the revitalization of Indigenous laws for making and maintaining relations through treaties and adoption.[10] If we are truly all treaty people, then the permanence of Canadian presence and its immigrant future is tied to the permanence of the treaties and Indigenous peoples and nations.[11] Statehood, Canadian sovereignty 37 The capacity to enter into international relations How did treaties go from regulating relations within, between, and beyond Indigenous nations to “grey law”,[12] seen as having no force at international law? In short, they were “domesticated” by the empires and states seeking to benefit from them. Domestication entails efforts by the Canadian state and society to reduce ongoing, nation-to-nation treaty relations guided by Indigenous laws to one-time land cessions interpreted solely by state laws and policies.[13] In this vein, historian Jim Miller set out three main types of treaty-making traditions with settlers:[14] (1) early commercial compacts between Indigenous peoples and chartered corporations that had been granted monopolies and exclusive trade rights (e.g. the fur trade) from the 17th century onwards; (2) treaties of peace, friendship, and alliance, situated within “rival networks” of imperial European powers, from the late 17th century and especially the 18th century; and (3) territorial treaties governing settlers’ “access to and use of’ Indigenous lands, from the later 18th century to the early 20th century, along with the related but distinct formal agreements pursued from the 1970s to now (the so- called modern treaties).[15] By starting with the early commercial compacts, Miller marks the beginning of time somewhat earlier than most accounts. Other examples usually proceed from the Maritime treaties of peace, friendship, and alliance; to the pre-Confederation treaties in Upper Canada; to the post-Confederation numbered treaties in the Prairies and beyond (from 1871 to 1923); to the so-called modern treaties of comprehensive land claims agreements (e.g. 1975 James Bay and Northern Quebec Agreement and following).[16] Most accounts do not mention the rich history of inter-indigenous treaty-making.[17] Aboriginal Affairs and Northern Development Canada (currently Crown-Indigenous Relations and Northern Affairs Canada) uses a map entirely devoid of these relationships.[18] Historian Ken Coates tracks the standard trajectory of domestication across all three of the main treaty types.[19] From being seen as “accords between nations”, they turned to agreements “formalizing the subordination” of Indigenous peoples to colonial powers that also ‘clear the way’ for settlers and their states.[20] As noted by Manitoba historian Jean Friesen, “The negotiators viewed the treaties as finalizing, once and tor all, the clearing of title while, for the Anishinabe, it was ‘the beginning of a continuing relation of mutual obligation’”.[21] The implications of this divergence are far-reaching. At Saskatchewan’s Office of the Treaty Commissioner, Justice David Arnot set out the key points of contrast in two perspectives on treaties: from covenantal oral agreements governing every aspect of relations with the Crown and all non-First Nations peoples, including consent to share territories, versus written text merely obtaining First Nations’ consent to settling territories by European populations.[22] The covenantal, permanent, and sharing approach outlined in holistic treaties with political, legal, and sacred status stands in stark contrast to an approach predicated on the Crown privileging written texts and grudging developments in Canadian common law. Certainly, it is not in keeping with the Federation of Saskatchewan Indian Nations’ (FSIN; now Federation of Sovereign Indigenous Nations) important response to the Office of the Treaty Commissioner’s (OTC) 2007 report on treaty implementation. Questions of sovereignty and perpetuity were brought up by the FSIN directly,[23] [24] which contested the capture of treaties by state sovereignty as much as it re-asserted the treaties’ international stature and that First Nations’ sovereignty will continue forever.2* Specifically, the FSIN response to the treaty commissioner’s recommendations and vision, that treaties “find their rightful place in the Canadian state”, was that this vision was “inconsistent with First Nations’ assertion of sovereignty” and one that they did not accept.[25] Instead, the FSIN Treaty Implementation Principles contemplate a different kind of sovereignty, visualized through a tree. This sovereign tree is characterized by a relationship with Mother Earth; sovereign occupation of North America with their own laws and jurisdiction; permanent sovereignty, including the power to enter into international treaties with other nations; the greater validity of the spirit and intent of treaties over their written text; and Canada’s ongoing obligation to fulfil this spirit and intent.[26] While not premised on independent statehood, these principles reflect the attributes of land, laws, government, people, and independent international relations mentioned above. They also add other important factors like stewardship of the land and oral traditions. This vision ultimately connects Indigenous lands and laws to the maintenance of their sovereignty. The reduction of these treaties to internal Canadian matters subject to Canadian laws and courts thus strikes at the heart of Indigenous survival and the institutional bias pitted against that survival.[27] The process of domestication remains hugely contested and forms one of the biggest challenges to treaty interpretation and broader reconciliation today. Systemic biases exist across the various treaty types but, following Borrows, I briefly mention a few examples here of institutional bias with respect to treaties of peace and friendship, the numbered treaties, and modern treaties. For instance, a Canadian court notoriously pronounced in 1929 that the Indians were never regarded as an independent power . . . [and the 1752 Treaty between the British and the Mi’kmaq] is not a treaty at all and is not to be treated as such, it is at best a mere agreement made by the Governor and council with a handful of Indians giving them in return for good behaviour food, presents, and the right to hunt and fish as usual.[28] In relation to a later interpretation of treaties of peace and friendship in New Brunswick, Borrows argues that “the status quo is preserved and the Crown is not disturbed in its use or possession of land, even though it has not legally justified its assumed pre-eminent position”.[29] However, these “values and assumptions of imperial treaty makers”[30] remain unquestioned, such that Indigenous “rights under treaties are domesticated and placed in a subordinate position relative to the Crown”.[31] Similar domesticating constraints are evident in the interpretation of the sacred numbered treaties “that cover most of northern and western Ontario, the three prairie provinces, and the newly realigned Northwest Territories”.[20] These treaties are open to state interpretations that subordinate Indigenous treaty rights (like using land for hunting or spiritual purposes) to wider Canadian objectives, including settlement and “visible non-Aboriginal development”.[33] Beyond adjudication, this subordination also occurs at the political level, where Indigenous peoples “view peace and friendship treaties as creating bilateral relationships” in contrast to “non-Aboriginal governments or courts [that assume] the power to determine ultimate allocations of lands and resources”.[34] The so- called modern treaties arc no less subordinated, subject as they are to Canadian constitutional law, courts, and doctrine. The Nisga’a Final Agreement is just one example, with (1) its introduction of fee simple lands that may be alienated in the future (in contrast to the communal, inalienable nature of Aboriginal title lands); (2) the conversion and replacement of traditional House governance with a new government; (3) the paramountcy of provincial and federal laws over Nisga’a laws; (4) the jurisdiction of Canadian courts over Nisga’a institutions and interpretive disputes arising from the Final Agreement; and (5) the collection of individual Nisga’a taxes towards general Canadian revenues.[35] The Nisga’a Final Agreement also stipulates that its citizenship provisions do not impact Canadian immigration law or Indian Act status.[36] The combination of historical treaties interpreted to “significantly erode the land base” with new treaties largely bound to “non-Aboriginal structures, values, and processes”[37] does not bode well for countering the process of domestication. In addition to treaty relations, similar domestication took place with Indigenous standing (at international fora) and with Indigenous lands and governance systems.[38] As with their Confederacy and Great Law (Kaianerekowa), the Haude- nosaunee provide one of the most well-known examples here, too. Government It is impossible to succinctly recount how Canada replaced Indigenous governance and took Indigenous lands in order to cement its own statehood and sovereignty. It is equally impossible to separate discussions of land and territory from questions of population and government; these ‘qualifications’ for establishing Canadian statehood and dismantling Indigenous nations are necessarily interwoven across the different sections of this chapter.[39] However, one story that encapsulates many of these elements took place right at the same time that Canada was seeking to assert its sovereign international status, “which before 1919 had in no sense existed”.[40] The Haudenosaunee Confederacy has had a ‘Two Row Wampum’ treaty with imperial and colonial governments for over 400 years. The first treaty was with Dutch settlers in 1613 and was followed by a Covenant Chain treaty with the British in 1677. The Two Row and Covenant Chain treaties served as key frameworks for all of the treaties that were to follow, including the 1764 Wampum at Niagara that sanctioned the Royal Proclamation of 1763.[41] The Two Row Wampum symbolizes the agreement that neither the Haudenosaunee nor the British “will make compulsory laws or interfere in the internal affairs of the other”.[42] The Six Nations’ long alliance with the imperial British included some of their member Nations fighting on their side during the war with the colonies. It also included the 1784 Haldimand Treaty negotiating land for the Six Nations on the banks of the Grand River (purchased from the Mississaugas).[43] Unfortunately, through questionable sales and cessions to the Crown, some of these lands were used for British settlers, with the subsequent trust funds lost in a failed investment without Six Nations consent.[20] In the sunset of the military aspects of their alliance, the Haudenosaunee Confederacy found itself subject to the colonial pretensions of Canadian jurisdiction under the British North America Act of 1867.4:1 Section 91(24) placed “Indians and lands reserved for Indians” under federal jurisdiction and provided the mandate for the successive Indian Acts aimed at their “civilization and assimilation”.[45] [46] Among many other things, the Indian Act provided for (1) the creation of Indian Act status and highly gendered exceptions to entitlement; (2) Crown management of Indian lands and resources; (3) voluntary and then compulsory Indian enfranchisement and, thus, forced removal of Indian Act status and reserve land; (4) enforcement of penal liquor laws and imprisonment; and (5) the imposition of an elected band council government (subject to a Canadian “Indian Agent”) to replace traditional governance established under Indigenous laws.[47] Before the elected council was imposed, Levi General was installed as a new hereditary chief (Dcskaheh) of the Cayuga Nation of the Six Nations in 1917 by Louise Miller (matron of the Young Bear Clan).[48] In relation to earlier grievances including the mishandling of trust funds from lands that were taken, Des- kaheh was chosen as the Speaker and deputy for the hereditary Council when it sought aid from the imperial government. Although Deskaheh petitioned King George V in August 1921, then Colonial Secretary Winston Churchill rebuffed this attempt in a reply to the Governor General of Canada: “the matters submitted within the petition lie within the exclusive competency of the Canadian Government” [49] While the Confederacy wanted to press the question of Six Nations’ status politically in Ottawa, “the door was closed in [their] faces”.[50] The SCC was also blocked to the Six Nations due to the need to seek leave from the Governor General’s office, which in turn deferred to a Department of Indian Affairs decision based on a negative opinion from the Department of Justice.[51] While subsequent negotiations sought out an impartial tribunal to examine the question of Six Nations’ sovereignty, Canada only offered up judges from (first) the Ontario Supreme Court and (later) any British subject.[52] In combination with a raid by the Royal Canadian Mounted Police (RCMP), spurious liquor violation arrests, and the establishment of an RCMP garrison on site, Deskaheh and the Six Nations sought out international (non-imperial) recourse in Geneva at the League of Nations.[53] The appeal from Six Nations sought to place a number of items on the League Council’s agenda, including recognition of their independent right of home rule according to their treaties, a just accounting of misappropriated trust funds, and freedom of transit for the Six Nations across Canadian territory to and from international waters.[54] On the basis of their centuries-old Two Row Wampum relationship with Dutch settlers, Deskaheh was successful in having the Netherlands forward the petition to the secretary general of the League. Unfortunately, and despite Deskaheh’s wider efforts with the public in Geneva, the Six Nations’ petition for sovereign status was never formally placed on the League Council’s agenda. The British Foreign Office criticized the Netherlands for its “uncalled for interference in [the] internal affairs of Canada”.[55] [20] The acting secretary general agreed to “‘enterrer’ [bury] the matter”, in large part due to Canada’s vehement denial of League jurisdiction.36 Among other charges, Canada noted that the Six Nations were not self-governing peoples and that discussing treaties with them would be like talking of “a treaty alliance with the Jews in Duke Street or with the French emigrants who have settled in England”.[57] The official response also noted that the recognition of the independent or sovereign status of Indians in treaties of cession, not used by the Dominion of Canada in the international law sense, would mean “the entire Dominion would be dotted with independent or quasi-independent Indian States ‘allied with but not subject to the British Crown’. . . . such a condition would be untenable and inconceivable”.[20] By way of an Order-in-Council on September 17, 1924, the Canadian government also mandated that an elected band council be imposed at Six Nations pursuant to the Indian Act. The Six Nations’ hereditary council was deposed, and “free elections” were held under armed guard and the dark cloud of a large boycott, where fewer than 30 ballots were cast on the most densely populated reserve in Canada.[59] In part motivated by Canadian disdain for the hereditary council and the matriarchal role in selecting chiefs, the election had the added effect of “depriving Deskaheh of his right to speak for the confederacy, at least according to Canadian law”.[60] Criminalized in Canada, Deskaheh was forced to take refuge in the United States with Tuscarora chief Clinton Rickard until his death in 1925.[61] The story of the Six Nations’ quest for status ranges from colonial Ottawa to imperial London to nascent inter-state international law in Geneva. The Haude- nosaunee Confederacy were hampered at every turn by the notion that their “grievances were a domestic concern of Canada and hence outside the League’s [or London’s] competency”.[62] At the same time, they were then forced to split community energies and allegiances between an elected, funded council and the unfunded hereditary one. All of this took place on an ever-shrinking land base subject to the Indian Act and its draconian provisions for extinguishing Indian Act status. Having momentarily domesticated the Six Nations’ claims, Canada then left them without recourse to Canadian courts or counsel. The Canadian government amended the Indian Act in 1927 to make it “an offence to solicit or receive funds from any Indian for the purpose of prosecuting an Indian claim”.[63] This amendment “effectively chilled any legal initiatives to advance the Indian land claim movement” until the amendment was finally repealed in 1951.[64] But by then, it would already be much too late. From 1896-1914, Canada “was admitting more immigrants than in any preceding or subsequent eighteen year period”.[65] By 1912, “Canada’s total population [had] increased by almost thirty-five per cent [and] a million immigrants flooded the three prairie provinces and British Columbia”.[66] By 1921, immigration “had successfully populated the country”.[67] Indigenous attempts to press land claims and treaty rights would have to contend with settlers’ “insatiable”[68] demands for land and all of the “visible non-Aboriginal development”[69] that came with them. If the Western conception of government meant “a stable political community supporting a legal order to the exclusion of others in a given area”,[70] then this is exactly what Canada sought to accomplish for itself through Confederation and beyond. Although inaccurate then and now, the settler colonial contention that Indigenous nations lacked these attributes was part of Canada’s work to make it so and keep it that way. A defined territory and a permanent population for Canada Canada’s approach to the treaties first recognized and then later renounced Indigenous laws about making and maintaining relations. This treaty two-step allowed the nascent state to pursue its tripartite Indian policy: the control of lands, government, and children.[71] In turn, this policy served the larger goals of Confederation and nation-building, namely, territorial expansion, agricultural settlement, and the construction of a national railway.[72] Having discussed the domestication of treaties, the foreclosure of international advocacy, and the replacement of Indigenous government, this section turns to two other attributes of statehood: the establishment and maintenance of a permanent population and a defined territory for Canada. The domesticated treaties facilitated the establishment of the permanent population and defined territory necessary to ensure Canadian statehood. At the same time, Canada also fostered the precarity of Indigenous populations amidst shrinking territories through its asserted sovereignty over both. Lands How did the treaties dispossess?[73] Comprehensive studies have been conducted from the perspectives of Canadian history and Indigenous legal history, including attempts to compare these competing sets of views. These treaties emerge 8 against the backdrop of the Royal Proclamation of 1763 (October 7, 1763),[74] which has sometimes been called the ‘Indian Magna Carta’ or ‘Indian Bill of Rights’. In the aftermath of the Treaty of Paris and Pontiac’s uprising, it set out a lands policy meant to restrain settlers, with the ‘ultimate safeguard’ for unceded lands lying in a purchase procedure requiring “Crown monopoly over the acquisition of Indian lands . . . and the consent of the Indians concerned”.[75] However, the Royal Proclamation only gained legitimacy and authority with Indigenous nations following the 1764 Treaty or Wampum at Niagara. This massive gathering of chiefs, Nations, and the imperial Crown signified Indigenous assent to proceed with treaty-making under Indigenous legal systems and principles, including those of the Two-Row Wampum.[76] The process of domestication excised this wampum constitutionalism[77] of Niagara and left only the textual guarantees from the Royal Proclamation. These guarantees paled in the lace of imperial devolution and colonial settlement. As noted above, responsibility for Indigenous peoples was transferred from imperial to local governments following the decline of Indigenous military and demographic power. In turn, local governments from the Maritimes to Quebec to Upper Canada were either hard-pressed or solicitous with squatters to ignore or allow settlements contrary to the Proclamation. These settlements were then legitimized afterwards through inaction and local (as opposed to imperial) government legislation.[78] When compliant with the Proclamation, if not the Treaty' at Niagara, the initial treaties alienated traditional lands and pushed Indigenous peoples to “remote regions”.[79] Later treaties were then used to acquire or reduce the remaining reserve lands to which Indigenous peoples had been pushed. Despite the Proclamation showing that “territorial rights akin to those asserted by sovereign Princes are recognized as belonging to the Indians”, the commissioners appointed to look in to Indian affairs in 1856 were told to do so “without impeding the settlement of the country”.[80] As Johnston notes, the prioritization of white settlement “inevitably meant the diminution of the territorial rights of Indians”.[81] Given this tight relationship between the taking of Indian lands and white settlement of those lands, and since they coincided with the peak of immigration to Canada, I turn now to the 11 post-Confcderation numbered treaties negotiated from 1871 to 1923. The vast prairie lands relevant to the numbered treaties are visible in light green in a government map.[82] The preamble to Trcat' One from 1871 (the Stone Fort Treaty) states that “it is the desire of Her Majesty to open up to settlement and immigration a tract of country bounded and described as hereinafter mentioned",[83] The emphasized language serves as the boilerplate of settler colonialism in the text of all of the other numbered treaties. While the 1871 Treaty Two (Manitoba Post) contains the exact same language, Treaty Three (North-West Angle) expands the language to the following: “that it is the desire of Her Majesty to open up for settlement, immigration, and such other purposes as to Her Majesty may seem meet, a tract of country bounded and described as hereinafter mentioned”.[84] In 1874, Treaty Four (the Qu’appellc Treat)') adds “trade” as one of the stated purposes in this clause.[85] Treat)' Five in 1875 (the Lake Winnipeg Treaty) and Treaty Six in 1876 (Forts Carlton and Pitt) both use the same language as Treaty Three (“settlement, immigration, and such other purposes”).[86] Treat)' Seven in 1877 (Blackfoot Treat)') has its own variant on this formula: “that it is the desire of Her Majesty to open up for settlement, and such other purposes as to Her Majesty may seem meet”.[87] Concluded in 1899, Treat)' Eight uses even broader language: “it is Her desire to open for settlement, immigration, trade, travel, mining, lumbering, and such other purposes as to Her Majesty may seem meet a tract of country bounded and described”.[88] Treaties Nine (1905 James Bay Treat)'), Ten (1906), and Eleven (1921) all use the same preamble language as in Treat)' Eight.[89] These shifting preambles stemmed from the need to fulfil the promise of a transcontinental railroad (exchanged for British Columbia’s entry to Confederation) and to pursue settlement goals. In relation to Treaty One, Morris noted that Indigenous peoples in Manitoba were “full of uneasiness” at the settler influx and had obstructed settlers and surveyors, leading Indian Commissioner Simpson to conclude “that it was desirable to secure the extinction of the Indian title”.[90] Lieutenant-Governor Archibald’s report from July 29, 1871, also underscored this pressure: We told them that whether they wished it or not, immigration would come in and fill up the country; that every year from this one twice as many in number as their whole people there assembled would pour into the Province . . . and that now was the time for them to come to an arrangement that would secure homes and annuities for themselves and their children.[91] Similarly, Commissioner Simpson’s report from May 3, 1871, mentions this push-pull pressure and the anxiety of Indigenous nations for treaty negotiations combined with settlers’ uneasiness at being warned by Indigenous people that settlers were mere squatters on the land.[92] This ‘uneasy feeling’ amongst the squatting settlers prompted an editorial in the Manitoban at the time: The Indians are confident that now a permanent treaty is to be made, and are ready to make it. . . . Why keep the Settlement in suspense; why place the lives of the people in jeopardy by such tardiness; and why leave the great impediment to immigration removed?[93] Settler jeopardy and the desire for closure (to “have done with it”) have resonated through the centuries, from the pre-Confederation treaties to the numbered treaties up to our current context. As noted by Indian Affairs, settlement was accompanied by “massive construction” of railways, roads, cities, and towns; “insatiable demand for agriculture land”; and the encroachment by 1906 on “formerly isolated reserves” such that the Department had modified its policies protecting undeveloped reserves by 1908.[94] This encroachment shows the direct connections between treaty negotiation, the entry of settlers, the domestication of the treaties, and the corresponding diminishment of associated treaty rights. As noted above: Between 1896 and 1914, more than 3 million people emigrated to Canada (many from central and southern Europe), and dramatic growth was experienced in agricultural, manufacturing, and service industries. Cities mushroomed across the country, and the population of the prairies increased by close to 1 million in the first decade of the century.[95] This combination of lands and people that Canada accomplished through the treaties was also made possible by its immigration and Indian acts. People While the British North America (BNA) Act brought “Indians and lands reserved for Indians” under federal jurisdiction with Confederation in 1867, it also gave the federal government exclusive jurisdiction over “Naturalization and Aliens”. The BNA Act gave the federal government concurrent jurisdiction with provincial governments over immigration and agriculture, with federal authority trumping the provinces in cases of conflict.[96] Early immigration legislation was characterized by “permissiveness” before turning to exclusion in later statutes.[97] The first post- Confederation Immigration Act (of 1869) was less concerned with keeping people out than with providing procedural and transportation safeguards for those emigrating to Canada.[98] “Aliens” also made their appearance in statute, such that they were allowed to naturalize “as local British subjects after three years of residence in Canada”.[99] Relatively open immigration following Confederation meant “few entry prohibitions” and incentives like travel assistance, affordable settler homesteads, no removal after landing, and naturalization as a British subject after three years of residency.[100] After initial failures to attract settlers in the desired numbers, 7 offers of free land under the 1872 Dominion Lands (Homesteading) Act[101] led immigration levels to historic highs, with the aforementioned millions arriving between 1896-1914.[102] This increase also benefited from the completion of the transcontinental railroad with the labour of Chinese railroad workers (prior to the head tax and their later exclusion).[103] In addition to settling colonists, the profits of steamship and railways companies were integral, too. These companies benefited from the transportation of Chinese railroad workers across the Pacific, the passage of European settlers across the Atlantic and then over their railways, and then from selling “Crown” land granted along those railroads to the same settlers.[104] From the general openness of the 1869 immigration legislation, there was a shift in 1872 to include “the identification of prohibited classes - frequently defined in vague, value-laden, and vituperative terms - [becoming] a central element and defining characteristic of Canadian immigration law”.[105] The general introduction of such prohibited classes was expanded in subsequent immigration acts, from the innovation of deportation in 1906 to the 1910 prohibition of the landing “of immigrants belonging to any race unsuited to the climate or requirements of Canada”.[106] The selectivity and exclusivity of these changes were followed by the flexible framing of various Orders-in-Council in 1911 to the 1919 Act[107] and the 1923 Order-in-Council.[108] The latter Order-in-Council prohibited the entry of all immigrants except for six narrowly defined classes . . . “agriculturalists” with sufficient means to begin farming; farm labourers with arranged employment; female domestic servants; wives and children under eighteen of those resident in Canada; citizens of the United States “whose labour is required”; and British subjects with sufficient means for self-maintenance.[109] Confirming the key features noted above, Liew and Galloway observe that immigration law in Canada changed “from a generally permissive regime, with admittedly broad and undefined exceptions, to an exclusionary regime with narrow and well-defined exceptions”.[110] These measures and reflections are echoed generally in global, regional, and comparative approaches to the topic as well.[111] The confluence of framework legislation with a gradual shift from seemingly ‘wide-open’ immigration to selective immigration, restricted naturalization, and increased removal and deportation[112] operated concurrently with targeted racist immigration laws and policies. But the racist selectivity and exclusionary immigration law to follow only took place after completion of massive European migration accompanying the numbered treaties. As noted above, immigration “had successfully populated the country”.[113] This successful settlement of a permanent population (a stable political community) on a defined territory (the given area of government and a legal order to the exclusion of others) provides the qualifications for Canadian statehood and the circular rationale for Canadian sovereignty to perpetuate that statehood. In order to do so, the Canadian state must continue to undercut Indigenous self-determination and sovereignties, including the keeping of Indigenous lands that were taken and the taking of Indigenous peoples, including Indigenous children. A precarious Indigenous population In summary, Canada was able to realize the necessary attributes of statehood and the incidents of sovereignty through negotiation with, and then the coercion and domestication of, Indigenous peoples and their legal systems of making relations. By negotiating the treaties, Canada was given access to vast lands and the ability to settle massive numbers of people upon those lands. The duo of domesticated treaties and Canada’s constitution paved the way for Canadian sovereignty to consolidate and maintain state control over Indian lands, governments, and people through the Indian Act. As seen with the example of the Six Nations of the Grand River above, dispute resolution was successfully restricted to Canadian courts and laws. The Indian Act was then amended to cut off access to counsel and the courts. The Act also dictated all aspects of reserve life and undercut Indigenous self-government through the band council and Indian Agent system.[114] In the same period that lands were being taken through treaties and immigration reached levels of hyper- or explosive colonization,[115] the government fostered the development of church-run residential schools to remove and assimilate Indigenous children. Indian Act regulations were adopted in the 1880s, allowing Indian agents to order Indian children to attend residential schools if the agent thought they were “not being properly cared for or educated”.[116] The Act was later amended in 1920 to let the government “compel any First Nations child to attend residential school”.[117] Three graphs tellingly illustrate the coincidence of the negotiation of numbered treaties (from Treaty One in 1871 to Treaty Eleven in 1921), the influx of settlers (with millions arriving between 1896 and 1914), and the rise of residential schools (with thousands of Indigenous children being forced to attend from 1869 onwards).[118] The nexus of these processes set Canada on its way to achieving and maintaining the necessary attributes of statehood (permanent population, defined territory, government and laws, and the capacity to enter international relations) and the accompanying sovereignty that reproduces these attributes on a daily basis. For the same reasons, these interrelated processes set Indigenous peoples on a path of domestication that they have resisted ever since. The dispossession of their lands, repression of traditional governments and laws, and the removal of their capacities to enter into relations have all been detailed above. The other major component of Canada’s genocide targeted the permanent populations of Indigenous peoples.[119] As detailed in the Final Report of the Truth and Reconciliation Commission (TRC) into Indian Residential Schools, hundreds of thousands of children were forced to attend residential, day, and industrial schools from before Confederation up to the 20th century.[120] However, the Indian Act also comprised various other assaults on the future and identity of Indigenous peoples. Contrary to Indigenous laws and respectful treaty relations, the Indian Act created individual Indian status while emphasizing rules of patrilineal descent, pseudo-blood quantum, and enfranchisement leading to the loss of status and reserve lands.[121] From the Royal Proclamation of 1763[122] (“the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection”) to all of the statutes from the 1850s onwards, the creation, revocation, and revision of persons deemed to be or not to be “Indians” has been constant and punishing. These revisions have been determined by various markers, including government-defined blood, status contingent upon “marrying-in” and “marrying-out” of communities, voluntary and involuntary enfranchisement, residence on certain lands, and membership in particular bands.[123] The impact of these changes over time has been especially pernicious for Indigenous women. Sharon Mclvor’s decades-long quest to reform the Indian Act to allow perpetual transmission of status, singly, by both fathers and mothers is a testament to this harm.[124] As noted by ethnographer Scott Lauria Morgensen, in its definition of over six hundred “First nations” whose members received “Indian status” by state decree, the Act also separated myriad communities of common nationality, radically reduced land bases (if any remained), and enabled the state to determine the fact or erasure of their existence. 6 Indeed, the statutes governing entitlement to registration were “amended for 150 years” with “many amendments [being] bold attempts at reducing the Aboriginal population of a province or the whole country”.[125] The point of reduction is emphasized in the context of the fiscal burden of Indigenous peoples at the federal level.[126] This view accords with the historical record, demographic projections, recent SCC case law, and legal, political, and socio-legal critiques of the legislation:[127] “Indian Affairs continues to control land and resources required to accommodate these members and Canada will differentiate between band members’ registration status”.[128] As recognized by the late Mocreebec chief Randy Kapashesit in a presentation to the Royal Commission on Aboriginal Peoples (RCAP),[129] an emphasis on wider territorial confederations and inter-nation relations ruptures membership bound to Indian Aet bands: But, they’ve always been in the interest of the state to have treaties and to have arrangements and agreements. We ’ve never bad the opportunity to work out our relationship with each other, within families, as individuals, between communities and beyond communities, nation-to-nation,[130] Emphasis on the wider definitions and relations matters where mere proof of ancestry might suffice instead of the quasi-blood quantum required by various versions of the Indian Act.[131] Plains Cree Indigenous studies scholar Robert Innes (Cowessess First Nation) further complicates the simplistic, essentialized picture painted by the Indian Act. He notes: most Aboriginal bands in the northern plains of Saskatchewan were kin-based and multicultural. Plains Cree, Saulteaux (also known as Chippewa or Wcst- ern/Plains Ojibwe/Ojibwa), Assiniboine, and Metis individuals shared similar cultural kinship practices that allowed them to integrate others into their bands.1 Зэ A core feature of Indigenous legal systems is the ability to integrate other individuals and nations into existing webs of relations. Nonetheless, in line with the notorious statement by Duncan Campbell Scott (deputy director of the Department of Indian Affairs), the Indian Act was geared to “a time when ‘there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question’”.[132] [133] Indian Act changes and definitions did not impact Indigenous peoples equally. Instead, as noted by Nellie Carlson, they had a very calculated gendered impact which disproportionately affected women: Historically the Indian Act has thoroughly brainwashed us. Since 1869 Indian women already were legislated as to who she should be. Six times the Indian Act changed on Indian women. But each time she lost a little bit of her rights as an Indian.[134] While the first statutory language from the 1850 legislation (in Lower Canada) was wide and inclusive,[135] it was amended in 1851 to exclude from status (among others) “non-Indian men who married Indian women” while still allowing “non- Indian women who married Indian men” the right to Indian status.[136] As noted by the RCAP: “For the first time, Indian status began to be associated with the male line of descent”.[137] The ability of Indian men to transfer Indian status by marriage to non-Indian women, without any such ability for Indian women to transfer status by marriage to non-Indian men, mirrored the rise of dependent nationality in the broader, still very much gendered context of colonial and imperial legislation.[138] While the 1861 Act Respecting Indians and Indian Lands still defined Indians “as those with Indian blood reputed to belong to a tribe, all those intermarried among them, and their descendants”, the notions of blood and belonging would soon narrow in the subsequent acts.[139] With respect to kinship connections, in 1869, further changes went beyond the former inability of women’s non-Indian spouses to ‘marry in’ and enshrined the loss of status for Indian women ‘marrying out’ and their inability to transmit status to any children of such a union.[140] This provision carried through to the very first consolidated Indian Act of 1876, which defined the term ‘Indian’ through men, their ‘blood’, and male descent: 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: . . . (c) Provided that any Indian woman marrying any other than an Indian or a non-treaty Indian shall cease to be an Indian in any respect within the meaning of this Act.[141] [142] Given federal Indian policy’s tripartite focus on the control of lands, government, and children,[140] the loss of status for Indian women ‘marrying out’ to non-Indian men or non-status Indians has been one of the most devastating and long-lasting tactics in the larger colonial strategy.[144] As summarized by the RCAP, a whole host of detrimental effects for Indian women sprang from their excision from status, including the inability to vote in band elections, loss of membership in home communities, loss of Indian status, and loss of the right to transmit Indian status to their children (among others).[145] The state’s emphasis on ‘patrilineal descent’ also ran counter to both the “predominant principle of [bilateral] descent among the tribes . . . traced equally through both the mother’s and the father’s relatives” and the next most common principle of matrilineal descent.[146] Patrilineal descent also coincided with the state undermining matriarchal authority generally and in the context of particular communities’ political and legal systems. The example of the Six Nations of the Grand River is pertinent here, too, given colonial distrust of clan mothers’ powers to hold title and select the Confederacy’s chiefs.[147] Restriction through male lineage was made worse by the reductive policies of voluntary and involuntary enfranchisement.[148] The introduction of enfranchisement to further assimilate Indigenous peoples arose in an 1857 statute applicable to Upper and Lower Canada, providing rights to vote and own individual property’ in exchange for giving up Indian status and residency rights on reserve.[149] The role of enfranchisement was confirmed in the consolidated 1876 Indian Act,[150] which also included the forced replacement of traditional governance systems with elected band councils acting as local governments under the Indian Agent.[151] The examples of ‘marrying out’, enfranchisement, and band councils illustrate the weaponization of race, gender, class, and democracy within Canadian Indian policy. This legal cocktail also highlights the near-lethal consequences of the Indian Act and Indian status for Indigenous self-determination under Indigenous legal and political systems. As noted by Saulteau and Gitksan legal scholar Val Napoleon, cataloguing Indigenous peoples per the Indian Act disconnected First Nations from their territories and allowed the federal government to “reduce the number of Indians requiring reserve land or federal resources . . . [nullifying] First Nations cultural systems for determining citizenship”.[152] In contrast to this conspiracy of legislated identity, Mi’kmaq legal scholar Pamela Palmater argues that “Indigenous nations have inherent jurisdiction to determine citizenship rules for themselves, though this might practically emerge only through negotiated self-government agreements or modern treaties”.[153] In the absence of this full-blown self-determination approach to identity, Palmater notes that assimilation will continue because traditional communal identity will be reduced to band membership belonging that is determined by the recognized identity of the Indian Status registry.[154] In contrast to the reductive definitions of the Indian Act, the definition of Aboriginal peoples from the eponymous Royal Commission is much broader: “organic, political, and cultural entities that stem historically from the original peoples of North America” (and not collections of individuals united by so-called racial characteristics).[155] The RCAP definition of Aboriginal nation is likewise wider than the current Indian Act definition of band: “sizeable body of Aboriginal people who possess a shared sense of national identity and constitute the predominant population in a certain territory or collection of territories”.[156] As with Indigenous treaties, territories, and governments, the process of domestication operates to shrink and isolate what would otherwise be dynamic Indigenous nations with relationships to the Crown to “individual Indians” regulated by Canada.[157] These domesticating developments are all-important because they dishonour sacred treaty relations and foreclose the self-determination and continuity of Indigenous peoples. At the same time, they also guarantee essential attributes of Canadian statehood and the sovereign capacity to maintain these attributes in seeming perpetuity. Conclusion This chapter has shown how domesticated versions of the treaties were used to consolidate the attributes of statehood through the establishment of a defined Canadian territory, the immigration and settlement of a permanent population, and a corresponding government. This consolidation allowed the Canadian government to exercise its sovereignty to bring about the Indian Act, which further transformed Indigenous relations with both the state and one another through the introduction of band councils, Indian Act status, and residential schools. As I have discussed in other recent work, the hard, cutting edges of this state sovereignty persevere at the intersection of Indigenous, Aboriginal and immigration law when it comes to Indigenous ways of making and maintaining relations through treaties and adoptions.[158] 3 Decolonization in Third and Fourth Worlds
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