Band councils, lands reserved
for Indians, and the need to
end the Indian act
By Chief Del Riley & Tom Keefer with Karen Commandant
The PDF version of this document is available for download here. Comments or corrections can be sent to email@example.com. This is version 2.0 of the document, published on June 18, 2022.
Today, Indigenous rights are being challenged at every level. In Federal and Provincial settler courts, unfair practices and illegal decisions are being made on flawed foundations and racist understandings derived from the Doctrine of Discovery. Indigenous peoples are being put under the control of Provincial legislation and responsibility without rights, only privileges. Reserves are being turned into third level government bodies at the same level or less than local municipalities. Federal fiduciary responsibility is being turned over to the Provinces, breaking our connection to the Crown and creating Provincial order over us as another form of “diversity.”
Indigenous communities are being forced into a process to determine how they will maintain the colonial systems of their oppression by taxing their own people and lands through Own Source Revenue. Legal decisions affirming our rights in Canada’s own courts are being ignored and diminished on a case by case basis with no consideration of the original agreements and in an uneducated, racially biased system controlled by government servants. We as Kanien’kéha:ka (Mohawks) are a sovereign nation with all our original rights and responsibilities intact – despite all the past efforts and ongoing efforts today to separate and remove us from who we are. We have retained our original forms of governance and our Great Law of Peace is remains in operation today.
My father was the longest standing Indian Act Chief in Wahta Mohawk Territory. My brother was on council and then was elected chief for a number of terms. I was an administrator employed by the band and have also been elected councillor. I’ve participated in the Indian Act over the years, and completed an Indigenous public administration program. Having participated in the system I know it can’t be changed from within.
I have commissioned Chief Del Riley and Tom Keefer to produce this document to identify how the system that oppresses us functions, and why we need to move away from Indian Act systems – including the Band Councils – as a precondition of our liberation. I would also like to thank Stacy Amikwabi for his insights and observations. It my hope that we can use this document and other tools to put those annexing our original relationships on notice that we do not accept the illegal acts or imposed systems put upon us in the past, and that we will not accept or participate in any such acts in the future.
Wahta Mohawk Territory, May 1, 2022
The biggest obstacle to implementing Indigenous sovereignty today is the Indian Act Band Council system. Band Councils are governing bodies operating on Indian reserves that were created by the Canadian Parliament through the Indian Act in 1876. These bodies can make no decisions that are not approved by the Canadian Minister responsible for Indian Affairs. That is who they are funded by and who they answer to – not the people in their community that elected them.
Band Councils were explicitly created for the purpose of assimilating “Indians” and creating governing units that could be merged into Canadian municipalities. The system was explicitly created to displace the traditional governance systems of Indigenous nations and was installed and maintained through the efforts of all-powerful Indian Agents and paramilitary forces like the RCMP. Once the Indian Act was successfully implemented, Band Councils became an insidious vehicle of colonial rule undermining sovereign forms of governance and economy. The Band Council was – and continues to be – an integral mechanism of Canada’s ongoing genocide of Indigenous people.
Importantly, the Canadian government has avoided ever determining a legal definition of the term “First Nation.” That leaves the term free to be interpreted to describe two very different entities – the Band Council system established by the Indian Act, and the collectivity of Indigenous people belonging to their nation. The former has very little rights, jurisdiction or power, and was created by the Canadian Parliament to assimilate Indians. The second concept of a First Nation is much broader and refers to the people of the nation as a whole – and includes their lands, inherent rights and treaties. But with traditional governance systems suppressed by 146 years of the Indian Act, this larger body of the nation has lacked an effective political voice and means for making its own decisions as a nation.
Instead, by sleight of hand, Band Council governance systems – described as “First Nations” – have become the vehicle through which the Federal Government is now attempting to achieve the goals of assimilation articulated in the Gradual Civilization Act of 1857, the 1969 “White Paper” and the “termination tables” of Justin Trudeau. This position paper aims to articulate why Band Councils and the political structures they have created – such as the AFN and various regional political organizations – have no Aboriginal and Treaty Rights of their own. It seeks to explain why the Band Council system itself needs to be dissolved along with the Indian Act and replaced by the sovereignty of the people through decision-making structures that directly represent Indigenous people and clan families.
Sovereign Indigenous politics means the peoples effective control over the traditional territories of their nation. Hence the significance of the slogan #LandBack in identifying the immediate political goal. Because the Crown and Canada did not conquer Indigenous people, but rather made “peace and friendship” treaties with them, or assumed control without making treaties or “surrenders,” the land still belongs to Indigenous people. These lands were first identified by the British Crown in the 1763 Royal Proclamation as “Lands Reserved for Indians.” These are the territories which must be returned to sovereign Indigenous control – free of the Indian Act – in order to truly achieve an end to colonialism in Canada.
Indian Act Band Councils
Band Councils (many of which are now described with the legally empty term First Nations) are the creation of the colonial Indian Act, an instrument of genocide that has been used to discriminate against Indigenous people since 1876.
As researcher Joan Holmes has pointed out, the Indian Act became Canada’s default “legislative framework for carrying out the terms of treaties, despite the fact that it was not written specifically in response to treaty obligations.” After the BNA Act devolved powers from the Imperial Crown to a group of Provinces unified in the Dominion of Canada, the Federal government was given responsibility for “Indians, and Lands reserved for the Indians” (Section. 91.24 of the BNA Act).
As Holmes indicates, the First Nations signatories to these treaties “did not relinquish their authority or leadership, nor did they agree to abandon their traditional systems of political or social organization and self-determination. There is no record of them giving up the right to their spiritual and religious practices, nor did they agree to forfeit their freedom of movement. No First Nations agreed to submit to day to day management of their affairs by an outside government and none of the written accounts record any discussion of the Indian Act being applied to the signatory First Nations” (Holmes, 2002).
The Indian Act was the legal tool that allowed for the theft of Indigenous lands and resources. It imprisoned Indigenous people on reserves by using a pass system to keep them off of their traditional territory and criminalized any kind of trade with the outside world. It was such an effective tool of control that it was applied by the Apartheid South African government in the creation of Bantustans under their system of Apartheid. The Indian Act also provided the “legal” means to steal Indigenous children and to force them into residential schools – some with death rates as high as 50%. The Indian Act sought to replace traditional leadership structures with an elected Band Council to carry out the policies of the colonial bureaucracy – the assimilation and eventual elimination of the legal category of “Indian.”
Racist attitudes of Canadian leaders towards Indigenous people mean that Indian Act Band Councils were never given any real powers or resources. To this day, all of their decisions remain subject to the approval of the Minister of Indian Affairs. Band Council Resolutions are merely “wishes” and not legally enforceable. The entire purpose of the Band Councils has been to undermine Indigenous sovereignty and work towards the integration of Indigenous nations as a “fourth tier” kind of ethnic municipality responsible to Canadian Federal, Provincial and Municipal laws.
The 1884 Indian Advancement Act fleshed out the structuring of the Indian Act Band Council system and it left no doubt about the end direction of Indian Act policy. The subtitle explicitly stated its goal: “An Act to confer certain privileges on the more advanced Bands of the Indians of Canada, with the view of training them for the exercise of municipal powers.” We see little variation from this plan in its more recent iterations – whether that be Pierre Trudeau’s 1969 White Paper, or Justin Trudeau’s strategy of promoting “modern treaties” and “self-government” policies in order to assimilate and extinguish Indigenous sovereignty and original title to the land.
Assimilation as Municipalization
As researcher Russ Diabo has argued, there is a clear consistency in Trudeau Sr.’s 1969 Indian policy and Trudeau Jr.’s 2022 policies. The 1969 White Paper’s main goals were to eliminate Indian Status, dissolve the Department of Indian Affairs, and abolish the Indian Act and Section 91.24 of the BNA Act that refers to “Indians and lands reserved for Indians.” It sought to convert reserve land to private property, transfer Indian Affairs responsibilities from the Federal Government to the Provinces, fund Indigenous “economic development” that is in Canada’s interest, and to address land claims in a way that would terminate treaties.
According to Diabo, the entire 1969 White Paper agenda – publicly withdrawn due to widespread Indigenous opposition and political mobilization – is now being implemented piecemeal through various pieces of Federal legislation under Justin Trudeau’s government. Who are the Federal government’s partners in this initiative? Band Councils, and regional and national organizations such as the Assembly of First Nations, the Chiefs of Ontario and various Political Territorial Organizations. All of them funded by and operating according to the rules and laws of the Canadian state.
To achieve the goals of the 1969 White Paper, the legal status of Indian Bands and Band Members are being changed through Self-Government & Comprehensive Claims Agreements. The Department of Indian Affairs has been dissolved into two departments – Indigenous Services Canada and Crown-Indigenous Relations – for the purposes of better controlling and managing Bands until they are offloaded into what Diabo calls a “4th level ethnic municipality.”
As Diabo puts it, “The First Nations Land Management Act and Alternative Federal Legislation is one component of a larger Federal strategy to eliminate Indian Reserves and ultimately the Indian Act by financially convincing/coercing Bands into signing 4th Level Ethnic municipal type “Self-Government” Agreements or “Modern Treaties” involving the de facto extinguishment of Aboriginal Title and coming under a new “self-government” funding policy that is based on “Own Source Revenue,” which means all forms of Canadian taxation.”
Federally created bodies like the First Nations Tax Commission and the First Nations Financial Management Board ensure that economic development and “own source” revenue is taxed according to Canadian terms and values. Meanwhile, according to Diabo, the Federal Government’s Treaty plan is to turn “Indigenous Governments” into Federal corporations operating as “4th level governments under the Federal and Provincial constitutional division of powers.”
Canadian Indian policy since Confederation is consistent and clear. Use the Indian Act to control and limit the movement and rights of Indigenous people while using the leadership structures established by the Indian Act to extinguish Treaties and Aboriginal Title in the peoples’ name.
As a part of this process, the Canadian government has been allowing some Indian Act bodies to claim greater powers and authorities for themselves. Some Band Councils have appropriated the insignia and imagery of the hereditary systems without their consent. Many Anishinabek Indian Act councils have written their own constitutions and “great laws” to claim “sovereignty” while still operating under the Indian Act and following Canada’s move to municipalization with 10 year funding agreements. Such band council claims of sovereignty merely prepare the way for the selling out of our rights.
With the rise of the Indigenous tobacco and cannabis industries, we have seen attempts by Indian Act councils to claim governance over the industry in violation of the limited powers granted to them under the law. Their plans are not to develop a strong and sovereign Indigenous industry that will help the people and revive Nation to Nation trading, but are instead efforts to “harmonize” Federal and Provincial laws with their own “municipal style” laws. In most cases, instead of supporting the entrepreneurial efforts of their people, the Band Council is setting up monopolies to directly control the industry.
Chief Del Riley, a hereditary Crane Clan chief of the Chippewa Nation and former President of the National Indian Brotherhood, has called Indian Act Band Councils, “Sir John A. Macdonald clubs,” referring to the scope of their authority and their adoption of a political vision imposed by Indian Agents. And yet, despite this established reality, many Indigenous people have been indoctrinated to see Band Councils as “their” leadership, because the councils are made up of people they know and who they voted into office. With traditional clan-based governance systems driven underground, damaged by the effects of the residential school system, and unsupported by the financial structures of the Indian Act, the Band Councils appear as the only viable, “actually existing” form of Indigenous governance. These Band Councils meet to discuss what is possible as decided by lawyers sworn to the Crown and Indian Act. Bureaucrats and lawyers, not the people, are the ones who interpret the politics and laws defining what is “possible.”
It doesn’t seem to matter who or what the people vote for, because they feel they will get the same kind of misleadership and corruption at every turn. It is common to see a few families take over the running of the Indian Act system by building the necessary political machine and patronage system to ensure their constant re-election. In these communities, families with traditional perspectives are often ostracized and excluded while Band Council families use the peoples’ resources to enrich themselves and maintain occupancy of Canada’s local political machinery. Not rocking the boat too much with Indian Affairs is crucial to this process.
So how did we go from a situation of sovereign, and militarily powerful Indigenous nations making peace and friendship treaties with the British Crown to the immiseration of proud and prosperous people? How did these Nations become assimilated into a system their ancestors wanted to avoid? And what are the viable paths away from the municipalization and assimilation towards which Canada is so aggressively pushing the Band Councils? To answer these questions, we must return to the moment of first contact between Europeans and Indigenous peoples and the evolution of Canada’s racist Indian Act.
How the Crown came to Kanata
When Europeans explorers and settlers arrived on the shores of Turtle Island – whether as the Vikings in the early 1000s, or as Basque fishermen in the 1400s, or as French explorers in the 1530s – they encountered Indigenous polities with unique political, legal, economic and military systems. These were Indigenous nations operating in accordance with their own age-old customs and conventions, enjoying all of the “national rights” that have since been elaborated in the canons of International law.
The first settlement attempts of both the Vikings and the French – who did not make peace and friendship treaties – were wiped out by Indigenous military forces. Kanyen’kéha:ka oral history takes credit for both successful campaigns. After Jaques Cartier claimed “Kanata” for the King of France his settlements were destroyed. When Samuel Champlain returned sixty years later, his first act was to form a military and diplomatic alliance with the Algonquin, Montagnais, and Mi’kmaq nations.
The “grand tabagie” held at Tadoussac in 1603 led to the French making political alliances with some 50 other First Nations across the continent. They were granted the right to settle on the lands in exchange for fighting against the Mohawks in a coalition of Algonquin and Innu nations. Champlain invaded Mohawk country with his newfound allies in 1609. In a battle at Ticonderoga he decisively defeated Mohawk forces, killing three chiefs with gun powder and shot. Determined to get their hands on these new weapons, the Mohawks established trading and military relationships with first the Dutch, and then the British.
It is a simple fact that successful European settlements on Turtle Island built a mutually beneficial trading relationship and created military alliances with powerful Indigenous nations. These peace and friendship treaties were made on the basis of Nation-to-Nation relationships and in conditions where the Indigenous peoples usually held the upper hand.
While virtually all sea-faring European nations attempted to establish settlements in the Americas (including Sweden, Russia, Norway, and the Netherlands) by 1750 the North American coastline was monopolized by three main powers: the Spanish, English and French. The Spanish controlled the coast from what is now Mexico to Florida, except for Louisiana which was claimed by the French. The British “Thirteen Colonies” stretched from present day Georgia to Maine. The French established their main towns and fortified trading posts in what are now the Canadian Maritime provinces and Quebec. Each colonizing European nation built its own particular relationship with local Indigenous nations.
The British Crown did not gain a territorial foothold in what is now Canada until it defeated the French Crown in a series of wars over hundreds of years. Both sides were allied to rival Indigenous confederacies. The fact that “The Kingdom of Canada” ruled by Queen Elizabeth is, at some 488 years, one of the longest running monarchies in the world is due to the fact that the English claimed it through conquest from the French in 1759. The French, in turn, claimed to have established their Canadian Kingdom when Cartier planted a cross in Iroquois soil in 1534, claiming it for the King of France.
In 1674 the British defeated and replaced the Dutch in lands that became New York State. The British began a trading relationship with the Mohawks and the Haudenosaunee Confederacy in 1710 that was known as the Silver Covenant Chain. Britain established its “Thirteen Colonies” on the lands of Algonquin speaking people as the Powell Linguistic map shows. The Iroquois nations had long been in conflict with the Algonquin and Huron nations allied to the French, forming both a barrier between English and French combatants, and a block to any further British expansion over the Appalachian mountains.
Within the Confederacy of the lands of Five Nations – modelled on a metaphorical longhouse – the Mohawks were responsible for guarding and admitting allies through the “Eastern Door.” Through their relationship with the Mohawks, the British Crown was able to relate to the rest of the Haudenosaunee Confederacy and its allies and dependents. The British accepted key Onkwehon:we diplomatic concepts such as the Two Row Wampum – a doctrine of peace, friendship, and non-interference in each others affairs. British leaders like Sir William Johnson married into the Mohawk Nation, learned its language, and adapted to its political culture.
The political concepts taught to the British became a part of the treaty-making and alliance-building entered into with other Indigenous nations. For example, the Mi’kmaq relationship to the British Crown is described in the same way as the Silver Covenant Chain relationship to the Kanien’kéha:ka, and Anishinaabe First Nations today consider that their treaty relationship with the British is based upon the principles of the Two Row Wampum, as do the Blackfoot in Treaty 7 in present day Alberta.
Once the British – with the aid of their Haudenosaunee allies – finally conquered the French in 1759 and took military control over the “Kingdom of Canada,” their citizens began moving across the Appalachians and settling on Indigenous lands. In response to these encroachments, Chief Pontiac of the Odawa led a multi-national Indigenous military force against British settlers and military installations in 1763. Pontiac burnt 9 of 11 British forts on the western frontier and killed some 2000 settlers and soldiers.
In response, the Crown issued the Royal Proclamation of 1763 which defined British borders and identified “lands reserved for Indians” where trespassing and settlement by Europeans was prohibited. Lands reserved for Indians were unconquered, un-surrendered lands that remained under the control and governance of Indigenous people. The territory could only come under the jurisdiction of the British Crown through a defined surrender process.
As the Royal Proclamation stated, “the several Nations or Tribes of Indians with whom We are connected, [ie. through the Crown’s relationship with the Mohawks and the Silver Covenant Chain] and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them or any of them, as their Hunting Grounds.”
To make peace and bring the King’s message to the nations with which the Crown was “connected,” Sir William Johnson as the Crown’s Superintendent of Indian Affairs organized a treaty gathering at Niagara in July and August of 1764. Some 2000 delegates from 24 different Indigenous Nations attended and joined in a “covenant chain” agreement that was memorialized into a wampum belt. The Indigenous nations included those affiliated to the Western Confederacy, the Haudenosaunee Confederacy and the Seven Nations of Canada confederacy, as well as multiple Anishinaabe nations, the Detroit Wyandot, and the Menominee.
The gathering – which was boycotted by Chief Pontiac and the Detroit Odawa, Sandusky Wyandot, and the Ohio Shawnee – led to an Indigenous acceptance of the 1763 Royal Proclamation, and eventually to a peace signed in 1765-6 by Chief Pontiac himself. More than 80 wampum belts were exchanged by the parties during the two month-long negotiation, and the result was the extending of the Covenant Chain relationship created by the Haudenosaunee and the British to other nations. The Indigenous people understood that through this relationship they would continue to govern themselves according to the principles of the Two Row Wampum and that the Crown would keep its people off of the lands reserved for Indians.
The Royal Proclamation ‘strictly enjoined’ its subjects to “remove themselves” from any settlements they had made in Indian lands and the Governors and Commanders in Chief in the Crown’s colonies were directed not to allow surveying or patenting of Indian lands outside of their domains. Only the Imperial Crown could purchase lands that Indians wanted to sell, and in order to do so, it must meet with a “public meeting or assembly” with the Indians of that land, thus establishing a treaty-making process.
The provisions of the 1763 Royal Proclamation and the Crown’s covenant chain relationship were a major obstacle for American immigrants seeking to gain wealth by expanding Westwards by seizing Indian lands. One of the primary motivations of the American Revolution was to overturn the 1763 Royal Proclamation/Treaty of Niagara, and to open the way to the outright theft and colonization of Indigenous lands to the West. In a “false flag event,” American “Sons of Liberty” dressed up as Mohawks and dumped British Tea into Boston Harbour to protest taxes and colonial control in 1773.
The Quebec Act was made by King George the 3rd, in 1774, 15 years after the British conquered New France. The Act was deeply unpopular with the common people – including the Quebecois, the small number of Anglophones in Quebec, and the Americans, who listed it as one of the four “intolerable acts” that lead them to rebel against the Crown. Indigenous people were not consulted or considered in the making of the legislation.
The main effect of the Quebec Act was to seize a vast area of the “lands reserved for Indians” in the Royal Proclamation, and to re-organize the lands as part of the new administrative unit of the Province of Quebec. These lands were never ceded or surrendered to the Crown by Indigenous people, but were simply transferred to the new “government of the Province of Quebec in North America.”
The Quebec Act ensured the continued existence of a French nation in North America. It enshrined French civil law and the power of the Roman Catholic Church in Canada. Tithes and church dues could now be legally collected, and the seigneurial system was revived against the opposition of the common people. Democracy was reduced, commerce was stifled, and the westward expansion of the Thirteen colonies was blocked by the creation of the new Province.
The Quebec Act did contain wording that recognized and upheld the Indigenous right to these lands. Section III of the Act stated that
Provided always, and be it enacted, That nothing in this Act contained shall extend, or be construed to extend. to make void, or to vary or alter any Right, Title, or Possession, derived under any Grant, Conveyance, or otherwise howsoever, of or to any Lands within the said Province, or the Provinces thereto adjoining; but that the same shall remain and be in Force, and have Effect, as if this Act had never been made.
Tthe processes established in the Royal Proclamation and Treaty of Niagra were not followed, and the “lands reserved for Indians” in the Province of Quebec were not ceded or purchased by the Crown. Indigenous nations such as the Amikwa and other “non-treaty Indians” who were neither “connected” or “protected” by the Crown had their rights completely disregarded.
In 1775, the American revolution began in earnest, with the battles of Lexington and Concord. The eventual Crown’s defeat in the American Rebellion led to tens of thousands of displaced United Empire Loyalists entering the Province of Quebec. This fundamentally changed the demographic base of the Province, and led to the creation of the Canada Act of 1791 which created the basis for the modern Provinces of Ontario and Quebec.
After years of fighting, the American rebels forced British Loyalists and Indigenous Allies to the British Crown (principally those nations who had gathered at Niagara in 1764) out of the United States. At the time of the signing of the American declaration of Independence in 1776, there were no more than 20 white people living in what is now Ontario. These were French peasants living across the river from Detroit in what is now Windsor. In the wake of the American revolution, some 8000 British subjects emigrated to what is now Ontario, along with some 2000 Mohawk and Haudenosaunee allies. These Loyalist refugees became the foundation of the English-speaking population of Canada.
The British compensated their Mohawk allies – who had lost their settlements in the Mohawk valley due to the American revolution and British betrayal of their interests in the 1783 Treaty of Paris – with two large tracts of land. The first was on the north shore of lake Ontario encompassing what is now Prince Edward County and the Watershed of the Bay of Quinte, and the other encompassed six nautical miles on either side of the Grand River from its mouth to its source. These lands were understood by the Mohawks to be their lands, reserved for them to do with as they chose, and were not a part of what would become “Canada.” They were “lands reserved for Indians” in the parlance of the 1763 Royal Proclamation.
The Simcoe Deed of April 1st, 1793, issued by Governor General J. Graves Simcoe – also known as Treaty 3.5, despite its unilateral nature – continued to codify the concepts developed in the Royal Proclamation in outlining both the lands and the rights and governance system for the Mohawks and such others of the Six Nations who would be occupying these lands reserved for Indians.
The text of the Simcoe Deed indicated that the lands were for “the Chiefs, Warriors, Women and People of the said Six Nations and to and for the sole use and behoof of them and their Heirs for ever freely and clearly of and from all manner of Rents, Fines or Services whatsoever.” Moreover, “the full and entire possession, Use benefit and advantage of the said District or Territory of Land to be held and enjoyed by them in the most free and ample manner and according to the several Customs and usages by them the said Chiefs, Warriors and People of the Six Nations.”
The land was safeguarded from non-natives by methods announced in the Royal Proclamation of 1763. “It is Our Royal Will and Pleasure that no Transfer, Alienation, Conveyance, Sale, Gift, Exchange, Lease, Property, or Possession shall at any time be had, made, or given of the said District or Territory of any part or parcel thereof by and of the said Chiefs, Warriors, Women and people of the said Six Nation or Body of People, Person or persons whatsoever other than among themselves the said Chiefs, Warriors, Women and People of the said Six Nations but that any such Transfer, Alienation, Conveyance, Sale, Gift, Exchange, Lease or Possession shall be null and void and of no effect whatever.”
Non-natives were also not allowed to “possess or occupy the said District or Territory, or any part or parcel thereof by or under any pretence whatever under pain of our severe displeasure.” It was the responsibility of the Crown to keep such interlopers off the land, because it “shall and may be lawful for Us, our Heirs and Successors [the Crown] at any time hereafter to enter upon the Lands so occupied and possessed by any other Person or Persons other than the said Chiefs, Warriors, Women and People of the Six Nations and them the said Intruders thereof and therefrom wholly to dispossess and evict and to resume the same to Ourselves, Our Heirs and Successors.”
The land could be surrendered to the Crown, but only if “the said Chiefs, Warriors, Women and People of the said Six Nations should be inclined to dispose of and Surrender their Use and Interest in the said District or Territory, the same shall be perchased only for Us in our name at some Public Meeting or Assembly of the Chiefs, Warriors and People of the said Six Nations to be held for that purpose by the Governor or Person Administering Our Government in Our Province of Upper Canada.”
The perspective outlined in the Simcoe Deed was standard in terms of how both Indigenous people and the Crown viewed “lands reserved for Indians.” It is worth mentioning that the Simcoe Deed was no Treaty, and was not in fact approved by the Mohawks as it referred to a much smaller land base than the tract agreed upon by the Crown and Captain John Desrontyon. Even so, the fact remains that the Crown recognized the rights of the Six Nations to live unmolested on their own lands without paying taxes and in accordance to their customs and conventions.
With the War of 1812 the Americans sought to conquer Canada and to annex the Indigenous lands to the north. By this time, of the 110,000 non-Indigenous inhabitants of Upper Canada, 20,000 were the initial Loyalists and their descendants, 60,000 were later American immigrants and their descendants, and 30,000 were new immigrants from Britain. The War of 1812 further cemented the central importance of the British relationship with First Nations as it was Indigenous military efforts that ultimately won the day and stopped the American invasion of “Canada” after the British military forces fled the field of battle.
As former National Chief Del Riley puts it:
Somehow the War of 1812 was glamourized by current historians as being a British and colonial victory; when in fact the British abandoned the front lines in the War of 1812 and had absolutely nothing to do with the end result of the war, the war ending, or the outcome of the war. The War of 1812 ended from the victories of war by First Nations Warriors and the unity between United Nations of First Nations in the region now known as Southern Ontario, Canada. Moreover, the war was won by the Three Fires Confederacy and Six Nations Confederacy.
The economic collapse following the end of the Napoleonic wars on the European continent, and the upheavals caused by the Industrial revolution led to a mass migration of British immigrants to Canada. Between 1815 and 1850 this unprecedented population transfer was estimated at 800,000 people. The lands reserved for Indians were squatted upon and taken over in violation of the terms of the Royal Proclamation. Fraudulent treaties such as the Robinson-Huron and the Williams Treaty alienated vast tracts of land from Anishinaabe people, and the Indigenous population was forced onto ever smaller reserve lands by the vast waves of encroaching settler population. The real undermining of Indigenous sovereignty dates from this time.
Seeking to stop further American expansion northwards, and to secure the wealth of Indigenous lands for themselves, the separate British North American colonies of New Brunswick, Nova Scotia, and the Province of Canada confederated themselves into the Dominion of Canada in 1867. As part of this process, the Federal Parliament took jurisdiction over “Indians and Lands reserved for Indians” under Section 91(24) of the British North America Act. A decade later, in 1876, the Federal government concocted the Indian Act as the legal infrastructure to dispossess Indigenous peoples from their lands and resources. Thus they hoped to assimilate a supposed “dying race.”
Predecessors to the Indian Act
In order to understand the legislative framing of the Indian Act, it is helpful to look at preceding legislative efforts in relation to Indigenous peoples in Canada. This involves the Act for the better protection of the Lands and Property of the Indians in Lower Canada (1850), the Indians’ Protection Bill (1850) for Upper Canada, and the Gradual Civilization Act (1857).
1850 was a crucial turning point in relations between the Province of Canada and First Nations. Increased European immigration was sending squatters, land speculators, and prospectors into the unceded “lands reserved for Indians,” leading to increased conflict.
Matters boiled over with the Mica Bay Incident in November 1849 when a force of Anishinabek and Metis warriors led by veterans of the war of 1812 – including Chiefs Oshawano, Shingwaukonse and Nebenaigoching – attacked the operation of the Quebec and Lake Superior Mining Association at Mica Bay, Lake Superior. Seizing a cannon and two six-pounder artillery pieces, several hundred armed warriors closed down the mine. At this point, none of what is now Northern Ontario had been surrendered by Indians to the Crown. The principles of the Royal Proclamation/Treaty of Niagara were clearly being violated – a point that was repeatedly articulated by the warriors in their protests to colonial authorities.
The Mica Bay incident precipitated a political crisis in the Province of Canada; it seemed like Pontiac’s War was about to break out all over again. A significant Indigenous presence gathered around strategically-located Sault Ste Marie, making war a real possibility. No doubt the British were also concerned that the Americans might intervene in such a struggle, using it to advance their own expansion into Indigenous lands.
The Province of Canada (1847-1867) responded swiftly. Military forces were dispatched to arrest the Indigenous leaders. Treaty commissioners were sent out to get land surrenders and to survey lands for reserves. Two important pieces of legislation were passed: the Indians’ Protection Bill (Upper Canada) in July of 1850, and An Act for the better protection of the Lands and Property of the Indians in Lower Canada a few weeks later in August of 1850.
These pieces of legislation once again reiterated the guiding principles established in the Royal Proclamation of 1763/Treaty of Niagara and the Simcoe Deed and Haldimand Proclamations. No purchase or sale of land from Indians could occur without the “authority and consent” of the Crown and the free agreement of the Indians; no person could sue any Indian in Upper Canada unless over land held in “fee simple” ie. personally owned and alienable land within the British landholding system. Furthermore, “no taxes shall be levied or assessed upon any Indian or any person intermarried with any Indians” who lived on Indian land; no tolls or fees would be charged on any “road, bridge or ferry” in the Province; no “spirituous liquors” could be sold to Indians. And any property pawned by Indians in exchange for alcohol must be returned to them.
Section X of The Indians’ Protection Bill explicitly protected the wealth of Indians from seizure. This included their treaty annuities and presents as well as Indian wealth expended and invested in “the encouragement of agriculture and other civilizing pursuits” i.e. in growing and selling their produce and wares from within their own economy. The Act recognized the individual rights of Indians to hold this wealth which “may be and often necessarily are, in the possession or control of some particular Indian or Indians of such Tribes.” The Act also explicitly protected Indian held property from “seizure, distress or sale, under or by virtue of any process whatsoever.”
Section XI of The Indians’ Protection Bill gave Justice of the Peace powers to Commissioners and Superintendents of the Indian Department so that they could more easily remove non-Indigenous squatters from the lands reserved for Indians and afford “better protection to the Indians in the unmolested possession and enjoyment of their lands.”
Section XII stated that these Acts “enable [Indians] more efficiently to protect the said lands from trespass and injury, and to punish all persons trespassing upon or doing damage thereto: Be it therefore enacted, That it shall not be lawful for any person or persons other than Indians and those who may be intermarried with Indians, to settle, reside upon or occupy any lands or roads or allowances for roads running through any lands belonging to or occupied by any portion or tribe of Indians within Upper Canada.”
Section XII went on to say that it is the duty of the Commissioner, on receiving a complaint, to “remove all such persons settling, residing upon or occupying such lands, with his, her or their families, from the said lands or roads or allowances for roads.” The Protection Bill was passed to protect Indian property and wealth, and to keep white people from trespassing on Indian lands, so as to limit the chances of another Mica Bay incident.
The Act for the Better Protection of the Lands and Property of the Indians in Lower Canada was passed a few weeks later on the 10th of August, 1850. This law was deemed necessary because of the theft of Indian lands in Lower Canada (today’s Province of Quebec) and because of confusion over who was actually entitled to the legal protections and identity being “Indian.” This law was the first piece of Canadian legislation that legally defined an “Indian.”
The following classes of persons are and shall be considered as Indians belonging to the Tribe or Body of Indians interested in such lands:
First – All persons of Indian blood, reputed to belong to the particular Body or Tribe of Indians interested in such lands, and their descendants.
Secondly – All persons intermarried with any such Indians and residing amongst them, and the descendants of all such persons.
Thirdly – All persons residing among such Indians, whose parents on either side were or are Indians of such Body or Tribe, or entitled to be considered as such: And
Fourthly – All persons adopted in infancy by any such Indians, and residing in the Village or upon the lands of such Tribe or Body of Indians, and their descendants.
Indians were thus identified by virtue of their political organization in a “Body or Tribe” tied to their relationship with a specific landbase. Importantly, the membership of the Tribe or “Body of Indians” was determined by the Indians themselves in accordance with their own customs and culture. Unlike the Indian Act, their identity and membership was not defined or controlled by the Crown or the legislature.
The 1850 Indian Protection Acts were passed in reaction to the reality that Indigenous people would fight for their lands and uphold their treaty rights. The Acts were a continuation of the Crown’s 1763 Royal Proclamation, and a recognition of the rights of Indigenous people to their own economy and way of life on their unceded lands.
The Robinson Huron Treaties were concluded in 1850. Chief Shingwaukonse was let out of prison on the condition that he sign it and encourage others to do so. The treaty process was severely flawed. Many Pottawatomie Chiefs who were pushed out of Michigan by President Andrew Jackson’s 1830 Indian Removal Act signed the treaty. In doing so, they gave away the lands and rights of Indigenous peoples who had long been allied to the French and did not want to lose their lands or make a treaty with the British Crown. The economic benefits promised in the Robinson Huron treaty were never realized, and the “non-treaty” Indians such as the Amikwa were completely frozen out.
The surveying of Indian reserves under the Robinson-Huron treaty was fraudulent and so poorly executed, that a second team was sent out to do it again. Even then, the surveying remained a mess, so that in 1854, Governor General and Commander-in-Chief of British forces in North America Sir William Shearman Rowan issued a Royal Proclamation to clear up its inconsistencies.
Rowan’s Proclamation underscored three specific sections of the Indians’ Protection Act – X, XI, and XII – that protected Indians and punished unwanted non-Indians. It also tied specific parcels of unceded Indian land to these protections. Rowan also explicitly outlined various Indian lands “on the borders of Lake Huron, Superior, Nipissing and Nipigon” where the provisions of the “tenth, eleventh, and twelfth sections” of the Indians’ Protection Bill should be explicitly applied. These sections concern the protection and possession of Indigenous wealth and property, and the means for removing and punishing European immigrants squatting on their land. The lands in question are 21 parcels of land described in the Rowan Proclamation which were later designated under the Indian Act as reserves.
These lands include the territories currently associated with Batchewana First Nation, Dokis First Nation, Fort William First Nation, French River Indian Reserve No. 13, Garden River Indian Reserve No. 14, Gros Cap Indian Reserve No. 49, Henvey Inlet Indian Reserve No. 2, Kiashke Zaaging Anishinabek – Gull Bay First Nation, Magnetawan First Nation, Mississauga First Nation, Nipissing Indian Reserve No. 10, Parry Island First Nation, Point Grondine Indian Reserve No. 3, Sagamok Indian Reserve, Serpent River First Nation, Shawanaga First Nation, Thessalon Indian Reserve No. 12, Wahnapitae First Nation, Whitefish River First Nation.
To that list we can add Wahta Mohawk Territory which was established in 1881 as 175 Kanien’kéha:ka from Kanesatake moved to 25,000 acres of land in Gibson township to escape the domination of Sulpician missionaries.
In making this proclamation, the Governor General acted as the direct embodiment of the Crown. The Crown promised to uphold its duties to its Indian allies, and to continue in the footsteps of a long established relationship between the Crown and Indians in the Great Lakes region. These lands, as well as the lands described in the Simcoe Deed and the Haldimand Proclamation are unceded “lands reserved for Indians” with the same status as those described in the 1763 Royal Proclamation.
“Gradual Civilization” of Indians
In the latter half of the 19th century, the assimilative framework of the Indian Act began to take form. In 1857 the Province of Canada passed “An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians.” The goal of this legislation was to “encourage the progress of Civilization among the Indian Tribes in this Province, and the gradual removal of all legal distinctions between them and Her Majesty’s other Canadian Subjects, and to facilitate the acquisition of property and of the rights accompanying it, by such Individual Members of the said Tribes as shall be found to desire such encouragement and to have deserved it.” In other words, the point of this legislation was to assimilate the Indigenous population as Canadians under British property laws. This legislation was little different from the aim of the 1969 White Paper or the current efforts of the Trudeau government.
“Commissioners for examining Indians” made up of Visiting Superintendents, Missionaries, or such other persons appointed by the Governor were empowered to make examination and inquiry of male Indians over the age of 21. If Indians could speak, read or write English or French, and were found to be “of good moral character and free from debt” they could be enfranchised under this act and thereby gain the legal rights of “Her Majesty’s other subjects” and “shall no longer be… deemed an Indian.”
Indians enfranchised under the Act were to be allotted up to 50 acres of land from their Tribe and a sum of money “equal to the principal of his share of the annuities and other yearly revenues receivable by or for the use of such tribe.” The enfranchisement would also apply to the wife, widow and lineal descendants of the enfranchised Indian, and thereby serve to achieve the extinction of the Indian on a piecemeal basis.
Significantly, the lands allotted to enfranchised Indians “shall be liable to taxes and all other obligations and duties under the Municipal and School Laws of the section of this Province in which such land is situated.”
1876 Passing of the Indian Act
The first version of the Indian Act was passed in 1876. It combined elements of The Gradual Civilization Act and the 1850 Indian Protection Acts into Canada’s legal structure for ruling Indians. The Indian Act continued to define Indians in terms of their “blood” quantification, but removed the specifications that allowed Indians to determine their own community members through adoption and inclusion of other peoples. In a direct blow to Matrilineal societies, Indian women would now lose their status as Indians if they married a non-Indian man, and “half-breeds” in Manitoba would not be considered Indians if they lived on lands meant for the Métis.
The Indian Act did not consider Indians to be “persons.” As the act says, “the term ‘person’ means an individual other than an Indian, unless the context clearly requires another construction.” This has enormous significance, as those who were not “persons” had no rights in British society.
Even though “reserve lands” had previously been set aside as autonomous Indigenous homelands, reserve lands under the Indian Act were now subdivided into lots by the Superintendent-General of Indian Affairs. No Indian could “lawfully possess” any of the lots without the express approval of the Superintendent-General. Indians who settled, hunted upon, or occupied reserve lands without the permission of the Superintendent-General could face terms of imprisonment of up to 30 days.
The Indian Act repeated the age-old promise that no non-Indians would be allowed to “settle, reside, or hunt upon, occupy or use” reserve lands, but also ensured that no Indian could make money by leasing or making contracts and agreements with non-Indians to reside or hunt upon reserve lands. Indians were prohibited from harvesting and selling the natural resources of their reserve without a license in writing from the Superintendent-General. This applied to the removal or use of “the trees, saplings, shrubs, underwood, timber or hay thereon, or … any of the stone, soil, minerals, metals or other valuables off the said land” that wasn’t for immediate personal or family use. In other words, the Indigenous economy came completely under the control of the Superintendent-General and the Canadian colonial system.
All “local sheriffs, gaolers or peace officers,” as well as “any officer or person” deputized by the aforesaid, were to assist in the execution of the Indian Act rules. Financial compensation for the use of Indian lands by railways, roads, and public works were to be held in trust by the Superintendent-General who would then make payments to the Receiver General for the use of the band of Indians. “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.” Indigenous people themselves received no direct control of the financial resources set aside for their benefit. The monies held in the Indian Trust Fund were eventually transferred into Canada’s Consolidated Revenue Fund, where it was used to fund the Department of Indian Affairs.
The electors of the Chief and Council through the Indian Act were males over the age of twenty-one. The vote of a majority of such members at duly convened council or meeting of the band where the Superintendent-General was present would suffice for determining election. The Superintendent-General was a colonial bureaucrat responsible for deciding all matters in relation to a particular Indigenous Nation, and reported directly to the Indian Affairs bureaucracy.
The Governor in Council set the election time for the bands of Indians, and retained the right to depose the leadership “for dishonesty, intemperance, immorality, or incompetency” – concepts which could be interpreted at the whim of the colonizers. The legislation allowed existing hereditary “life chiefs” to continue as leaders “until death or resignation” but the Governor in Council could also remove them too “for dishonesty, intemperance, immorality, or incompetency.”
Chief and Council were authorized to create rules and regulations strictly limited to the most basic municipal-style responsibilities. They are are listed here in full:
1. The care of the public health;
2. The observance of order and decorum at assemblies of the Indians in general council, or on other occasions;
3. The repression of intemperance and profligacy;
4. The prevention of trespass by cattle;
5. The maintenance of roads, bridges, ditches and fences;
6. The construction and repair of school houses, council houses and other Indian public buildings;
7. The establishment of pounds and the appointment of pound-keepers;
8. The locating of the land in their reserves, and the establishment of a register of such locations.
Note that such responsibilities did not include any of the responsibilities of a nation. The regulation of any Indigenous industry or economy such as cannabis or tobacco was not included. Indians were to be kept locked away on their reserves until the efforts of the residential schools, churches, and the Canadian economy succeeded in assimilating or enfranchising them into the Canadian body politic. There was to be no independent Indigenous economy under the Indian Act – Indians couldn’t even sell market vegetables or firewood off-reserve. It is important to remember that this oppression was not simply accepted, Indigenous people fought back in every way that they could.
However, the Indian Act also carried on the standards of protection for Indians that originated in the Royal Proclamation and which were repeated in the various Indian Protection Bills, as well as the Simcoe, Haldimand and Rowan Proclamations. The Indian Act made it Canadian law that no Indian or non-treaty Indian could be taxed for any property on reserve, and stated that “All land vested in the Crown, or in any person or body corporate, in trust for or for the use of any Indian or non-treaty Indian, or any band or irregular band of Indians or non-treaty Indians shall be exempt from taxation. Likewise, the real or personal property of an Indian could not be taken by “lien or charge, whether by mortgage, judgment or otherwise.”
Assimilation would be achieved by the enfranchisement of male Indians over 21 years of age by the Superintendent-General if they passed a three year probation period. Enfranchisement also applied automatically to “Any Indian who may be admitted to the degree of Doctor of Medicine, or to any other degree by any University of Learning, or who may be admitted in any Province of the Dominion to practice law either as an Advocate or as a Barrister or Counsellor or Solicitor or Attorney or to be a Notary Public, or who may enter Holy Orders or who maybe licensed by any denomination of Christians as a Minister of the Gospel.” This had the effect of removing from Indian status any Indian that attained a position of influence in Canadian society.
In 1884, additions to the Indian Act made crystal clear the purpose of the legislation, which was described as “An Act for conferring certain privileges on the more advanced Bands of the Indians of Canada, with the view of training them for the exercise of municipal powers.” It was at this time that the Indian Act was amended to ban the potlatch and to require that First Nations Children attend residential school.
Further notable amendments included the banning in 1895 of “any Indian festival, dance or other ceremony,” which was amended in 1914 to also include dances off-reserve. In 1920 the act was amended to force Indian children to attend “industrial schools.” Efforts to use the Indian Act to remove Indigenous sovereignty were intensified in the 1920s when Duncan Campbell Scott became Minister of Indian Affairs. He sped up the assimilation of Indigenous peoples, and used the RCMP to depose hereditary leadership systems and to impose the Indian Act in Haudenosaunee communities.
The defeat of the Nazis in WWII led to the creation of International human rights conventions. As a result the Indian Act was reformed in 1951, and Indians were now considered legal “persons.” The bans on the potlatch and sun dance were removed, and Indian women were allowed to vote in Band Council elections. The Indian Act was modified to give Provinces jurisdiction over child welfare which allowed the “Sixties Scoop” – the adoption of Indigenous babies – to occur and continue. The “double mother rule” was instituted to remove status if an Indian’s mother and grandmother didn’t have status. In 1960, the Canada Elections Act was changed to allow Status Indians to vote without losing their status.
The racial system of Indian Act classification continues today. In 1985 two types of Federal Indian Status were created, 6(1) and 6(2). Those Indians registered under Section 6(2) are not able to pass their Indian Status on to their children if their partner is a non-Indian person. As Zhaawnong Webb explains, “Indian law is slowly forcing the enfranchisement of Indigenous peoples to move into mainstream Canadian Society and give up their legal identities.”
In 1969, Pierre Trudeau brought forward the “Statement of the Government of Canada on Indian Policy, 1969” presented to Parliament by Minister of Indian Affairs, Jean Chretien. The document was known as the “White Paper” and claimed to come from “consultations” held with Indian people, but proposed an approach that was resisted by their leadership.
The White Paper sought to repeal the Indian Act, enabling Indians to have title over their individual land (ie. to put an end to “lands reserved for Indians” and made it taxable). It proposed to put the Provinces in charge of Indians, provided funds for Indian economic development, and closed up the Indian Affairs department. Justin Trudeau’s government is trying to do likewise through its White Paper 2.0, but instead of creating a universal policy framework that could unite Indigenous resistance, it is opting for a piecemeal strategy to absorb the weakest and most vulnerable First Nations before attempting to consume the more difficult communities.
In 1982, a new Canadian Constitution was created, with the Canadian state gaining increased sovereignty from Britain. As Chief Del Riley recounts in his autobiography, a mass movement by Indigenous people ensured that this constitutional process enshrined Aboriginal and Treaty rights in the new constitution. International diplomacy through an office Chief Riley established in England, ensured the success of the National Indian Brotherhood’s negotiating efforts. As a result, Indigenous rights and the legacy of the 1763 Royal Proclamation/Treaty of Niagara and the “lands reserved for Indians” were enshrined in the constitution.
Sections 25 and 35 of the Canadian Constitution read as follows:
Section 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including:
(1) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(2) any rights or freedoms that now exist by way of land claim agreements or may be so acquired.
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
These two sections are powerful. They entrench Aboriginal Rights in the constitution, and have been responsible for hundreds of court victories for Indigenous people. The specific meaning of “Aboriginal Rights” was supposed to be negotiated at a series of meetings with the Crown in the 1980s. These meetings were never successfully conducted; as a result, the term “Aboriginal Right” was unilaterally determined by the Supreme Court of Canada in a series of rulings. It is Chief Riley’s position that Aboriginal Rights can only be defined by Indigenous people and that they include all the rights belonging to Sovereign Nations with whom the peace and friendship treaties were made. As he writes in his autobiography:
Having the term “Aboriginal Rights” entrenched into the Canadian Constitution meant for me and my constitutional team the crucial recognition of our rights as sovereign nations established before the time of European contact. Also, these rights may evolve with our own sovereignty, rights, and interpretations. Our interpretation of Aboriginal Rights may not have been what the All-Party wanted to hear, it was a nation to nation interpretation of rights and treaties. This was the outside the box thinking that I searched for, and the type of thinking that was delivered in our think tank meetings. To give our own meaning to the words “Aboriginal Rights,” we created the Declaration of First Nations:
We the Original Peoples of this land know the Creator put us here.
The Creator gave us laws that govern all our relationships to live in harmony with nature and mankind.
The Laws of the Creator defined our rights and responsibilities.
The Creator gave us our spiritual beliefs, our languages, our culture, and a place on Mother Earth which provided us with all our needs.
We have maintained our Freedom, our Languages, and our Traditions from time immemorial.
We continue to exercise the rights and fulfill the responsibilities and obligations given to us by the Creator for the land upon which we were placed.
The Creator has given us the right to govern ourselves and the right to self-determination.
The rights and responsibilities given to us by the Creator cannot be altered or taken away by any other Nation.
Where do we go now?
Indigenous people are at a crossroads. On the one hand, acceptance and support for Indigenous rights is at an all time high in Canada. Knowledge of the horrors of residential school and sympathy for the human cost is growing with each new discovery of unmarked graves. It is now common for “land acknowledgments” to be read out at public events, and for the unceded nature of the territory to be acknowledged. The Liberal and NDP are claiming to support policies of reconciliation and recognition and are seeking Indigenous votes for their parties.
In a more practical and positive sense, there is a resurgence of Indigenous sovereignty on unceded lands. A grassroots economy operating on the basis of inherent Indigenous rights has spread across Turtle Island with the growth of more than 400 sovereign cannabis dispensaries and tobacco stores, including a dozen dispensaries located on the unceded lands of the Iroquois and Anishinaabe in downtown Toronto. These shops not only provide an opportunity for their owners and employees to live free from dependency on the Crown, but they are also an important source of economic support for all kinds of Indigenous programs, services, and causes.
Politically, the efforts of the Wet’suwet’en Hereditary people to exert their sovereignty over traditional territory and to resist the CGL pipeline has generated widespread – even global – support. Tens of thousands of people across Canada have marched together in support of their rights. The demand made by Mohawks in Tyendinaga to Minister Marc Miller that the Crown renew its obligations to the Mohawks by “Polishing the Silver Covenant Chain” was profoundly significant. The Tyendinaga encampment by the CN rail line was the backbone of some 300 other direct actions that took place across Turtle Island under the hashtag #ShutDownCanada in February and March of 2020.
It is clear that the racist Indian Act system should no longer govern the lives of Indigenous peoples on their sovereign and un-surrendered lands. As Chief Del Riley has pointed out, the Canadian government can hardly attempt a South-Africa style “Truth and Reconciliation” process while keeping the racist and colonial Apartheid Indian Act system in place. Though the Indian Act needs to be abolished, the “lands reserved for Indians” are still here, only needing to be freed from Canadian control and jurisdiction.
The Band Council structures created under the Indian Act are implements of the colonial system. Band Councils never signed any treaties. They are colonial corporations, not Indians. They have no sovereign rights, and hold no title to any lands. They are elected by Indigenous people who have been racially discriminated against and whose culture, languages, and traditional roles and responsibilities have been under systematic attack for the last 146 years. Band Councils are solely a form of Indian Act governance over administrative matters. They are creations of Canada’s Indian Act system and will disappear with its abolition.
Indian “Status” would be also abolished with the Indian Act, but that would just mean that each community/nation could once again determine its own membership. Canada could use its 1857 definition of an Indian, which recognizes the heirs of Indians and those intermarried with Indians and recognizes the sovereign right of each nation to determine its membership. Those belonging to Indigenous nations could rebuild their governance structures by using consensus-based decision systems that centre Indigenous concepts of freedom and responsibility, and by building representational structures along clan and kinship lines. It would be up to the people themselves to establish new governance structures in accordance with their own customs and conventions.
The key to decolonization is full, sovereign control of the “lands reserved for Indians” by the Indigenous population themselves. This land base is already known as the “Lands reserved for Indians” and was first identified by the Crown in the Royal Proclamation of 1763. This includes all the lands that are now currently designated as reserves, plus those other areas of traditional territory that were never ceded to the Crown (including for example the lands designated in the Rowan Proclamation, the Haldimand Tract, the Simcoe Deed, the entire Province of British Columbia and many other areas).
Because of the fraudulent nature of so many of the treaties – which do not live up to the standards of the Royal Proclamation or which involve one Nation of Indians selling their interests in the lands of another Nation to the Crown – “lands reserved for Indians” is actually much larger than currently recognized. However, decolonization can start immediately with Canada recognizing the full sovereignty of Indigenous people living in the unceded lands that Canada has already explicitly determined to have been reserved for them.
The rules concerning those lands have been consistently elaborated in the Crown’s various proclamations and treaties including the Royal Proclamation/Treaty of Niagara, the Simcoe Deed, the Rowan Proclamation and the Indian Protection Acts of 1850. We already know the legal basis in the British/Canadian system for how “Indians” and the lands reserved for them should be treated – as this was clearly elaborated before the creation of Canada in 1867 the Indian Act in 1876.
The terms by which Indians live on these lands should be clear. There is to be no taxation of Indians or their families on this land. No fines or fees. No seizure of Indigenous property. No white squatters should be allowed and the Crown’s forces are responsible for removing white squatters from Indian lands.
Indigenous entities are connected through treaties to a political/military alliance with the Crown based on a mutually beneficial relationship expressed through the principles of the Two Row Wampum. The rights of these Indigenous Nations remain and have not been surrendered. The treaties that were made were peace and friendship treaties which gave the Crown’s people a right to settle on Indigenous territories but not to dominate or control Indigenous people or steal their resources. The relationship the Mohawks built with the Crown based on the Two Row Wampum and the Silver Covenant Chain were the basis of the extension of the Crown’s relationship to other Indigenous nations on Turtle Island. They remain valid to this day.
The lands reserved for Indians do not belong to “Canada.” Provincial law does not apply to them, and nor does Federal Canadian law. The law of those lands is determined by the customs and conventions of the Indigenous people living there, their treaties and agreements with other peoples, and their inherent rights and responsibilities. The monies being spent by the vast Indian affairs bureaucracy should be accounted for and distributed directly to the Indians living on those lands so that communities can use and control these resources for their own benefit.
Indigenous people will exercise full sovereignty over these lands, and must have a true nation-to-nation relationship with other governments and peoples in order to fully exercise their rights to self-determination. This means that Indigenous people will determine their own governing structures and leadership selection processes free of outside interference. All matters concerning membership, marriage, adoption, child welfare, education, health, and social service provision, belong to Indigenous nations to decide. The same is true regarding the administration and enforcement of laws which may include certain criminal laws and control over policing, penitentiary and parole. Matters concerning environmental protection and assessment, fisheries co-management, and gaming also lie with Indigenous nations.
In the words of Karen Commandant, from Mohawk Wahta Territory,
The first step is to educate our own people on how we came to be in this situation and to organize ourselves to take back control over our lives and end the Indian Act. We are putting Canada on notice that we are taking back our own lands. We have faced over 155 years of colonialism with Canada attacking our sovereign rights. The change we need will happen at the pace determined by each community according to their people, the original rights holders.