By Kaitlynne-Rae Landry

Written in 2021 for the University of Ottawa course HIS 4135 – The Indian Act, for Prof. Daniel Rück, edited by Daniel Rück and Sam Yee

Treaties are the mechanism by which parties formally express their relationships and responsibilities – in this case, the parties being Indigenous nations and the federal and provincial governments. The Indian Act was imposed on Indigenous groups by the federal government in 1876 – and subsequently amended numerous times. It impacts most aspects of Indigenous life. In this way, treaties and The Indian Act, seem to work against each other. Treaties, on one hand, imply a nation-to-nation relationship – a recognition of title, capacity, and agency. The Indian Act, by contrast, subjugates Indigenous people to be wards of the state: historically, and currently, it reduces their agency, has controlled their movement, and can be argued to have the goal of assimilation rather than the protection of Indigenous people.

Treaties can be divided into two main categories: historic and modern. The dividing point of these two categories is 1927 and the amendments that were passed to The Indian Act. As discussed in “Land Claim and Treaty Negotiations in British Columbia, Canada: Implications for First Nations Land and Self‐governance” by Curry et al., the 1927 amendments halted all treaty negotiations by making it illegal for First Nations to hire or fundraise for representation for land claims. When these restrictions were removed in 1951, a different structure would take the place of historic treaties: the Comprehensive Land Claims (CLC) policy.

Madill’s British Columbia Indian Treaties in Historical Perspective inner working paper from the Department of Indian Affairs provides a solid foundation for understanding the historic treaties that impact British Columbia: the 14 Vancouver Island Treaties and Treaty 8 (which covers a section of the northeast corner of the province).

Modern treaties almost always include a self-governance component. As discussed by Kim Baird in “Away from the Indian Act – Treaty Governance at Tsawwassen First Nation,” these treaties and agreements serve the purpose of moving bands beyond the constraints and oppression of The Indian Act. Baird’s opinion is of particular interest as she was chief of the Tsawwassen First Nation throughout the negotiation process. Her article, written two years post-implementation provides an Indigenous viewpoint on the obstacles (both internal and external), concerns, and motivations behind the TFN’s decisions. Baird’s reading, when read alongside Curry et al., provide a robust understanding of the TFN CLC.

When discussing modern treaties it would be remiss to neglect to mention the vital importance and dramatic impact of Calder et al. v. Attorney General of British Columbia. Before this Supreme Court ruling, the question of Indigenous title was largely ignored by the Canadian government (see Harris and Penkitt). This case, which consisted of 5 band chiefs suing (on behalf of themselves and their fellow band members) for their unextinguished land title rights was found in favour of the government. However, it was a split decision of the closest of margins: a victory that hinged on the technicality that the complainants had not received a fiat (decree) from the Lieutenant Governor of British Columbia. Such a marginal victory, especially with the written decisions, recognized the continued existence of Indigenous land title. In other words, Indigenous title was recognized as being unextinguished and therefore something that the government needed to confront and negotiate with. This ruling would form the foundation of the Nishga Treaty, the first modern land claim to be resolved in British Columbia.

The written Calder et al. v. Attorney General of British Columbia ruling is heavily technical, but the Greymorning article offers a critical review of the ruling and discusses how ethnobias played a huge role in the deliberations and verdict. This discussion of ethnobias (and European ethnocentrism) is echoed in Penikett’s Reconciliation : First Nations Treaty Making in British Columbia. Penikett’s book is essential reading for this topic – it provides excellent context, critically examines the negotiation process, and provides recommendations on how it can be improved.

Harris expands on the legal background that has emboldened Indigenous land claims in “A Court Between: Aboriginal and Treaty Rights in the British Columbia Court of Appeal.” In this journal article, he underlines the importance of the movement between the fixation on the letter of the law and the spirit of the agreement. That is to say, the decision of the government, in the wake of near legal defeat, to approach negotiation in a way that considers the spirit of the agreement instead of adhering strictly to the letter of (settler) law.

Alcantara and Flanagan present other perspectives and options for First Nations bands as mechanisms to work within or outside of The Indian Act to regain independence and economic capacity. Ironically, where these accounts may be lacking is in their failure to consult or consider Indigenous viewpoints. However, their works are still worth reading, especially for their discussion on how The Indian Act continues to actively inhibit First Nations from economic success.

A final perspective worth considering regarding how The Indian Act and treaties interact is that of Specific Claims. Specific Claims are essentially grievances by First Nations against the government for promises not kept or duties broken or unfulfilled. Dickson covers this topic thoroughly in By Law or in Justice : the Indian Specific Claims Commission and the Struggle for Indigenous Justice. Specific Claims are a replacement or alternative to the legal system for bands seeking redress. Of significance is that the same delays, stonewalling, and procedural shenanigans that have been expressed by many of the authors discussed are once again echoed here. Frustration seems to be systemic across Indigenous-Crown relations.

The major limitation of this historiography at this point is the disproportionate number of settler voices in the literature. Academia, as argued by Greymorning, has much of the same ethnobias that we see in our court system and society as a whole. Research and publications – and their link to funding – are far from immune to the pressure of systemic racism. While, as noted, there are certainly some emerging sources that feature Indigenous voices, considering that treaties and The Indian Act are both so intensely linked to the experience of Indigenous people within Canada, this representation must be increased.

Annotated Bibliography

Alcantara, Christopher. “To Treaty or Not to Treaty? Aboriginal Peoples and Comprehensive Land Claims Negotiations in Canada.” Publius 38, no. 2 (2008): 343-69.

The article, along with the book by the same author and Flanagan, present right wing political viewpoints on the issue of treaties and Crown-Indigenous relations. Of note in this article is the fourth section which discusses other options that Indigenous groups have outside of treaties, otherwise known as the Comprehensive Land Claims (CLC) process. Citing institutional changes, the author argues that there is a broadened set of options available for Indigenous people including Self-Governance agreements, Bilateral Agreements, and the First Nations Land Management Act. The author suggests that these options are preferable, at least until the CLC process is adequately reformed.

A limitation to this article, much the same as the book by the same author and colleagues, is that it seems to approach the issue from a diligently capitalist frame of view. It fails to incorporate Indigenous or collective viewpoints. Perhaps ironically, the author, while criticizing the CLC process and colonial history for being against the best interests of Indigenous people, does not seem to concern himself with the will and desire of those people. By focusing on a rather sanitized structural approach, the author misses the cultural nuance of the situation.

Baird, Kim. “Away from the Indian Act – Treaty Governance at Tsawwassen First Nation.” Aboriginal Policy Studies 1, no. 2 (September 7, 2011). https://doi.org/10.5663/aps.v1i2.11688.

This article is written by the Chief Kim Baird of Tsawwassen First Nation (TFN) and is an account of TFN’s experience of the implementation of a Comprehensive Land Claim/modern treaty. This treaty was the first urban modern treaty in British Columbia. Baird’s reflections speak of the importance of moving beyond the constraints and oppression of The Indian Act towards self-governance as the most important part of reconciliation. The commentary discusses various options and, ultimately, decisions that the TFN choose to take. For example, they chose to “jump right in” as opposed to a more incremental plan for exercising their jurisdiction.

The author speaks from a point of strength as the chief during the process, however, this position comes with inherent bias due to her closeness to the proceedings. The format of the article is a commentary as it does not reference or cite external sources. While this makes this commentary weak in terms of a traditional academic source, it advances the historiography due to Chief Baird’s personal connection and experience with the matter. The commentary was written two years after the implementation date of the treaty, allowing for limited retrospection on the process and implementation. It would be interesting to pursue Baird’s more recent thoughts.

Calder et al. v. Attorney General of British Columbia [1973] SCR 313.

The Calder decision is known as a turning point in the Canadian government’s consideration of Indigenous land title. In this case, Calder and four other appellants sued the Attorney General of British Columbia to assert that “aboriginal title, otherwise known as the Indian title, of the Plaintiffs to their ancient tribal territory…has never been lawfully extinguished.” Frank Calder, James Gosnell, Maurice Nyce, W.D. McKay and Anthony Robinson were each suing on their own behalf and on behalf of all members of their First Nation bands. The case is known as the Calder case after Nishga chief Frank Calder. The case was dismissed at both lower courts and found itself before the Supreme Court, ending in a split decision.

While the case was adjudicated against Calder and the Nishgas, the court’s finding acknowledged Aboriginal title in much of the rest of what is now Canada. In the ruling, three of the judges disqualified the Nishga’s claim because their territories were not under British protection at the time of the British Royal Proclamation of 1763. Another three ruled in favour of the Nisghas. The tie-breaking judge dismissed the case on a technicality; ruling that the Supreme Court did not have jurisdiction to make a ruling in the absence of a fiat (decree) of the Lieutenant-Governor of British Columbia. While this technicality did not aid the Nishgas in this lawsuit it had lasting ramifications with regards to the recognition of Aboriginal title as a legal right based on occupation of traditional territories. Such a close decision, won only on a technicality, spurred the government to act proactively. It was clear that further challenges would follow, with the requirement of a fiat being satisfied.

This case would come to serve as the foundation for the Nisgha Treaty of 2000, the first modern land claim in British Columbia.

Canada. Indian Act, R.S.C., 1927.

Pieces of legislation are living documents: they are often amended as necessitated by time, political will, and public opinion. It is important to take these amendments in mind when examining the historical impact of any piece of legislation – especially one as long living as The Indian Act, which was initially passed in 1876. The Indian Act is important in how it has changed over time, but no version is more critical to this discussion than the 1927 version after the amendments passed on March 31, 1927. These amendments included Section 141 which made it impossible for First Nation bands to raise funds or hire a lawyer for the purposes of land claims without the government’s approval. This section placed the punishment not on the band, who might be willing to take a fine or imprisonment, but rather on the legal counsel hired or otherwise engaged.

This amendment, as discussed in other sources, effectively ended any new treaty making. This chill remained until future amendments in 1951. When treaties and land claim negotiation restarted, a different approach was taken resulting in a very different process. This results in the division that exists between historic treaties and comprehensive land claims (modern treaties).

Curry, John, Han Donker, and Richard Krehbiel. “Land Claim and Treaty Negotiations in British Columbia, Canada: Implications for First Nations Land and Self‐governance.” The Canadian Geographer / Le Géographe Canadien 58, no. 3 (September 1, 2014): 291–304.

This article presents two case studies of comprehensive claims made in British Columbia. One, which our focus is on, is the successfully implemented agreement of the Tsawwassen First Nation (as discussed in Baird). The article also lays out some groundwork history, notably that the 1927 Indian Act halted all treaty negotiations. When they were eventually restarted after the Calder decision, they took on a new form: comprehensive claims. This is important for our understanding of how treaties interact with The Indian Act and provides a clear division point for the types of agreements we will be looking at. The three authors used a series of interviews with members of the First Nation to inform their insights on the agreements’ reasons for success or failure.

This work is important to the historiography because it provides a separate account of the Tsawwassen First Nation Comprehensive Claim from a more traditionally academic standpoint. By providing a second case study, in which the agreement failed to be ratified by members, it also provides us with potential explanations of factors that contribute to the success or failings of comprehensive claims. This work shines light on different ways modern treaty processes can be optimized to ensure community buy-in and success going forward.

Dickson, Jane. By Law or in Justice: the Indian Specific Claims Commission and the Struggle for Indigenous Justice. Vancouver: Purich Books, 2018.

This book was written by a member of the now defunct Indian Specific Claims Commission and is a reflection on the legacy of the government’s handling of specific claims brought forth by Indigenous groups. Specific claims can be generally defined as grievances levied against the government for promises not kept or duties neglected. The introduction gives a succinct, yet thorough history of the origins of settler-Indigenous relations, what Specific Claims are, where they come from and how they interact with both historic treaties and The Indian Act. Included in this summary is some of the bad faith actions that marred treaties from their very creation. The book continues with a discussion of the fundamental conflict of interest the government encounters when weighing its fiduciary duty against their own desire to balance budgets and protect their self interests.

The author provides concrete examples of claims and cases submitted to the Specific Claims Tribunal – some accepted, some rejected – and the motivations behind these decisions. This is important to the historiography because specific claims were and are the only way for bands to assert their grievances. This work handles the explanation of the intersection of treaties and The Indian Act regarding these sorts of complaints. It examines the history of government policy and attitude towards Indigenous populations in relation to these claims, in order to shed light on the frustration facing First Nations.

Flanagan, Thomas, André Le Dressay, and Christopher Alcantara. Beyond the Indian Act: Restoring Aboriginal Property Rights. Montreal: McGill-Queen’s University Press, 2010.

In this book, the authors connect the present levels of Indigenous poverty in Canada back in history through The Indian Act and to the Royal Proclamation of 1763. Their argument is that the restrictions placed on the land have been fundamental in crippling the economic capabilities of Indigenous people. Specific examples of policies mentioned include: land could only be ceded to the Crown, the reserve system, and the lack of private property rights.

This piece is important to the historiography in that it is from a right-wing political source, as indicated by the authors’ past articles. Flanagan et al. have a much more pessimistic view of Crown-Indigenous relations and the new comprehensive claims than most, but that is not surprising given some of Flanagan’s previous works. He is well-known for his fervent belief in free market economics, so his disdain of something so structured and removed from such a market is understandable. These values, however, do not mesh with more collectively-minded Indigenous populations.

Greymorning, S. Neyooxet. “Calder V. Attorney General of British Columbia: Aboriginal Case Law in an Ethnobiased Court.” Canadian Journal of Native Studies 26, no. 1 (2006): 71–88.

This article examines the reasons behind the Calder ruling as an example of a systemic issue in the courts: the lack of cultural relativity in Aboriginal case law. The article posits that the idea that Indigenous title had to be debated at all is rooted in “ethnobias” and an entrenched belief in the political and cultural superiority of Europeans. It highlights the fact that in Canada, the idea of Aboriginal title being granted into creation by the Crown (through the Royal Proclamation of 1763) is rooted in the doctrine of discovery. When considered as such, ‘discovery’ grants the Crown the sole right to extinguish title. The article argues that the Marshall decision in Johnson v. McIntosh has been misinterpreted, or at best, oversimplified.

The article contests the settler idea that the Nishga had no concept of individual ownership based on missionary accounts and the fact that treaties and purchases continued to happen. It points out the hypocrisy that is denying Indigenous title while also buying land from them. It highlights that Marshall clarified that extinguishment of Indian title was done by purchase or conquest. However, as the court system in which these cases are heard was and is intrinsically and systemically bias, the Eurocentric view prevailed. The conclusion paints a relatively pessimistic view of the future: while the Nishga Agreement did result in a self-governance agreement, the message is maintained that the state will continue to control Indigenous people.

This article is important to the historiography because it provides the ethnocultural context of the Calder case. It is a markedly more progressive and critical look at the proceedings than is presented in most other texts, and especially in government documents.

Harris, Douglas C. “A Court Between: Aboriginal and Treaty Rights in the British Columbia Court of Appeal.” BC Studies, no. 162 (Summer 2009): 137–64.

This article reviews the decisions of the British Columbia Court of Appeal in the domain of Aboriginal and treaty rights and reflects on the court’s role in defining the content of those rights. It begins with R. v. White and Bob and Calder v. British Columbia. Whereas other sources focus on Calder as a turning point in the consideration of Aboriginal land rights, this article also focuses on cases from 1982-1992 where Aboriginal land rights were infused “with substantial legal effect.”

The work covers these important rulings that made it clear that there would be a focus on “common understanding” and not “rigid rules of constructions without regard to the circumstances.” This was significant as it brought an end to a period of narrow consideration and marked the beginning of a push towards the spirit of a particular negotiation. This change towards a common understanding, as opposed to the letter of the law, is something worth identifying. For so long, the letter of the law has been used to minimize government obligations to the bare minimum. This piece also shows the different approaches and understandings taken by Canada as a whole compared to British Columbia.

This sort of case-by-case review is essential for the historiography as these legal rulings had a fundamental role in the establishment of the comprehensive claims and the movement towards negotiation, as opposed to pure stonewalling. This journal article further focuses on the role of the British Columbia Court of Appeal being the court in between: it makes rulings more specific for the British Columbian situation (unique within Canada due to the general absence of historical treaties), but still heavily aware of the presence (and therefore influenced by) the Supreme Court of Canada.

Madill, Dennis. British Columbia Indian Treaties in Historical Perspective. Ottawa: Research Branch, Corporate Policy, Indian and Northern Affairs Canada, 1981.

This internal working paper, written by a member of the Department of Indian Affairs (but not necessarily reflecting the opinions of the Department) serves as a guide regarding the historical treaties that are present in British Columbia. When generalizing, it is tempting to see British Columbia as a province wholly without treaties. This is not the case. The 14 Vancouver Island Treaties of 1850-1854 and the “almost accidental” inclusion of the northeast corner of the province in Treaty 8 cannot and should not be ignored.

The 14 Vancouver Island Treaties were simple in comparison to the numbered treaties. In contrast to the numbered Treaties, which had benefits and relationships going forward, the Vancouver Island treaties instead were a more direct agreement: property rights were exchanged for a lump sum payments – in this case, some blankets and a small reserve land. The involved bands did, however, retain their right to hunt and fish on unoccupied lands.

This source is important to the historiography due to the insight it provides into the mindset of the Department of Indian Affairs. It works to lay out historical context for the impetus for both treaties, and situate the motivations of those negotiating these limited historical treaties. As such, this source can be used to contrast with the approach to modern treaties. The working paper also discusses how the circumstances of both treaties (how they were negotiated, who was involved, etc.) play a role in the confusion and unresolved issues that impact current discussion. This source also has a wealth of other sources in footnotes for additional reading should more in-depth reading on these limited historical treaties be of interest.

Penikett, Antony. Reconciliation : First Nations Treaty Making in British Columbia. Vancouver: Douglas & McIntyre, 2006.

This book, written by Antony Penikett, who has a storied career including significant time spent as a negotiator on Indigenous land claims (albeit for the provincial and federal governments), provides a reflection on his time and experience negotiating claims. In doing so, Penikett provides remedies to problems that he sees as encumbering the current process. Penikett identifies three stages in the long history of treaty making: Legal Slaughter, Assimilation Games, and Reconciliation Debates. In his words: “in British Columbia, settler resistance, Aboriginal anxieties, and political indifference have for too long hobbled treaty negotiations.”

Through discussing these stages he outlines the Canadian, and more specifically British Columbian context that has led us to current day. He provides a frank look at how the pace (demonstrably slow) impacts Indigenous people. He discusses how the impacts of historical treaties (or lack thereof) are still being felt today, and he situates treaties in the overall systemic racism that Indigenous people face. He admonishes that “the rule of law requires that treaty makers address ancient grievances as current events.”

This book complements the Greymorning article in that it discusses ethnocentric illusions while underlining the need to respect the wisdom of other cultures. Throughout the book, Penikett uses historical and international context to add greater depth to the discussion. This work is incredibly important to the historiography as a solid overview from someone with a wealth of experience within the government, and who knows its policies and the impact of treaty negotiations. One caveat, the irony that the author recognizes and discusses, is that the length and bureaucracy of negotiations for treaties has created a whole industry of lawyers, negotiators, researchers, and support staff who all have the goal of facilitating these lengthy and arduous processes. Penikett was a part of this industry. While Penikett is a settler, his commentary appears balanced, if not sympathetic to the circumstances that Indigenous people have persevered from contact to present. The strengths of this source lie in the depth of coverage, the insights into potential changes, and the lived experience that inform it. It might make most sense to read this source first, and then the other, more precise sources, to add to this base level of expertise.