The Indian Act in B.C., Part 1: 1871 to 1876
Nothing on this page should be taken as legal advice.
Please read my Disclaimer page for further details.
If you would like legal advice or just want to chat about this post, please do not hesitate to contact me.
Please read my Disclaimer page for further details.
If you would like legal advice or just want to chat about this post, please do not hesitate to contact me.
So, you take the federal Indian Act.
You apply it to British Columbia.
Simple, right?
Uhh…. no.
You apply it to British Columbia.
Simple, right?
Uhh…. no.
Timeline: 1867-1876
The first interesting issue is that Canada passed the legislation known as the "Indian Act " in 1876. That's nine years after Canadian confederation and five years after B.C. become a province. So what happened before 1876? Turns out: a lot. This post addresses the applicability of federal "Indian" legislation from the time BC joined Canadian confederation in 1871 to the enactment of the Indian Act in 1876. My next post addresses the period after 1876.
The basic timeline for the period leading up to the enactment of the Indian Act, 1876 is this
(all legislation is that of the Dominion of Canada):
In other words, Canada passed a number of statutes relating to "Indians" and "Indian lands" before it passed the first Indian Act in 1876 (which was essentially a consolidation of existing legislation).
The basic timeline for the period leading up to the enactment of the Indian Act, 1876 is this
(all legislation is that of the Dominion of Canada):
- 1867: confederation of the first four provinces to form the Dominion of Canada.
- 1868: An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, 31 Vict. (S.C. 1868), c. 42 [Secretary of State & Indian Lands Act, 1868].
- 1869: An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31 Victoria, Chapter 42, 32 & 33 Vict. (S.C. 1869), c. 6 [Gradual Enfranchisement Act, 1869]. According to the last section, "[t]his Act shall be construed as one Act with the Act thirty-first Victoria, chapter forty-two" - that is, the 1868 Act.
- 1870: Manitoba joined Canadian confederation as the fifth province.
- 1871: BC joined Canadian confederation as the sixth province.
- 1873: An Act to provide for the establishment of "The Department of the Interior", 36 Vict. (S.C. 1873), c. 4 [Department of the Interior Act, 1873].
- 1874: An Act to amend certain Laws respecting Indians, and to extend certain Laws relating to matters connected with Indians to the Provinces of Manitoba and British Columbia, 37 Vict. (S.C. 1874), c. 21 [Indian Laws Amendment and Extension Act, 1874].
- 1876: the first Indian Act
In other words, Canada passed a number of statutes relating to "Indians" and "Indian lands" before it passed the first Indian Act in 1876 (which was essentially a consolidation of existing legislation).
1871 | Federal "Indian" legislation did not initially apply to BC
By An Act respecting the force and effect of the Acts of the Parliament of Canada, in and in relation to the Province of Manitoba, and the Colony of British Columbia when it becomes a Province of the Dominion, S.C. 1871, c. 13, passed by Canada in April 1871, Canada legislatively decreed that most federal legislation would not apply to the new Province of British Columbia when it officially became the sixth province a few months later.
Section 10 of this Act provided that,
Section 10 of this Act provided that,
All the enactments and provisions of the Acts of the Parliament of Canada, passed in the first, second and third Sessions thereof aforesaid, or in the present Session, relating to the Executive Government and the several departments thereof, and the Civil Service of the Dominion, the Legislature and Legislation, the Senate and House of Commons, and the proceedings therein, the independence of Parliament, and the qualification or disqualification of Members of the last mentioned House, the vacating of seats therein and the filling of vacancies, the Public works of the Dominion, and the Postal service, shall, in so far as they may not be inconsistent with the provisions of any Order of the Queen in Council, made under the authority of the 146th section of the British North America Act, 1867, have the same force and effect in and in relation to the Colony of British Columbia after its admission into the Union under such Order in Council, as they then have in and in relation to all the other Provinces of Canada.
Other sections of the Act made federal legislation concerning customs and excise matters specifically applicable to British Columbia. Thus, none of the Canada's existing "Indian" legislation was applicable to British Columbia.
1872-1874 | Dominion efforts to manage Indian affairs in BC
While Canada had (unexercised) legislative authority pursuant to s. 91(24) of the Constitution Act, 1867, over "Indians, and Lands reserved for the Indians" in British Columbia from July 1871, it had no institutional or organizational infrastructure in BC until October 1872. There was no office for Indian Affairs and no federal representative. If someone in Ottawa wanted to get to the new province, the shortest way was to travel by rail through the United States. There was mail, but it took days and days. Telegraphs (telegrams) existed, but there was no one in BC to receive them, as the existing bureaucracy of the Colony of British Columbia had become the bureaucracy of the Province of British Columbia.
In October 1872, some fifteen months after BC became a province, Canada finally appointed a representative in Victoria, Dr. Israel Wood Powell, a medical doctor without any real experience with "Indian" affairs. He scrambled, because of his inexperience, the number of directions in which he was pulled, and the urgent nature of Indigenous land matters in the province.
In February 1873, the Secretary of State for the Provinces - a Dominion Cabinet position that existed only between 1867 and May 1873, when it was replaced by the position of the Minister of the Interior - advised Superintendent Powell that his "powers as Indian Superintendent [in British Columbia] are limited by the laws of British Columbia until legislative enactments, in respect to the Indian affairs of the Province, as passed by the Dominion Parliament."
At about the same time, the Secretary of State also explicitly recognized, in a long letter to the Governor General about "Indian" affairs in Canada, that the federal government could not conduct "Indian affairs" in the two new western provinces as it had been doing in the original four provinces:
In October 1872, some fifteen months after BC became a province, Canada finally appointed a representative in Victoria, Dr. Israel Wood Powell, a medical doctor without any real experience with "Indian" affairs. He scrambled, because of his inexperience, the number of directions in which he was pulled, and the urgent nature of Indigenous land matters in the province.
In February 1873, the Secretary of State for the Provinces - a Dominion Cabinet position that existed only between 1867 and May 1873, when it was replaced by the position of the Minister of the Interior - advised Superintendent Powell that his "powers as Indian Superintendent [in British Columbia] are limited by the laws of British Columbia until legislative enactments, in respect to the Indian affairs of the Province, as passed by the Dominion Parliament."
At about the same time, the Secretary of State also explicitly recognized, in a long letter to the Governor General about "Indian" affairs in Canada, that the federal government could not conduct "Indian affairs" in the two new western provinces as it had been doing in the original four provinces:
In dealing with the new Provinces of British Columbia and Manitoba, and the wide Territories of the North West, it has become already apparent that Indian affairs cannot be managed by the application of the old machinery which has been found to work so well in the Canadas. In these vast countries no very extensive or valuable Reserves have been set apart for the Indians, no large funds are invested, the missionary labor (though zealous and self-devoted men have from the earliest times penetrated into those regions) has been less in proportion to the mass of ignorance and pagan superstition to be encountered, and the distances from Ottawa are so formidable, that after a short experience of the utter hopelessness of the task of carrying on Indian affairs by correspondence with this Department, I have felt it my duty to advise that Boards should be appointed, one at Victoria and another at Winnipeg, to whom should be largely entrusted the management of Indian affairs both in British Columbia and the North West. These Boards need not consist of more than three persons, of whom the Lieutenant Governor of the Province should always be one.
Canada had already introduced an Order-in-Council to establish these Boards in January 1873. This OIC, passed in June, established an alternate management structure consisting of a three-man board in each province. Interestingly, for what would not happen later in BC, this Board was to "suggest the general principles under which the Indians are to be dealt with, arrange under the directions of the Superintendent General all negotiations and Treaties with the Indian Tribes, and report from time to time the basis upon which all questions of general policy in Indian Affairs should be settled."
Canada passed another OIC in November 1873, appointing three men to the BC Board. (As it turned out, the Board was largely ineffective in BC and was dismantled in 1875.)
Canada passed another OIC in November 1873, appointing three men to the BC Board. (As it turned out, the Board was largely ineffective in BC and was dismantled in 1875.)
1874 | Indian Laws Amendment and Extension Act, 1874
In 1874, Canada decided to make parts of its existing "Indian" legislation - the three statutes - applicable to Manitoba and British Columbia. However, Canada still maintained the "special case" of these new provinces:
But even this legislation was flawed. As Chief Justice McEachern pointed out in his reasons for judgment in Delgamuukw, "most of the Act could not be applied to this province because it tied the definition of an Indian to a person who was receiving annuities, none of which were payable here. As a consequence, there was an amendment in August, 1874, making the Act inapplicable to British Columbia."
In fact, I can find no amendment to the Act. Rather, I find an Order-in-Council, PC 1874-1081 (August 26, 1874), providing that "Indians and Indian lands in the Province of British Columbia be exempted from the application of the eighth section of the Act 37 Vic. Cap. 21 respecting Indians; and that the necessary Proclamation to that effect do issue accordingly." Section 8 of the 1874 Act was the section containing the definition an "Indian". Thus, rather than "making the Act inapplicable to British Columbia," it appears that the August Order-in-Council made the definition of "Indian" inapplicable to British Columbia, in a seeming attempt to ensure that the remainder of the Act intended to apply to the province did so.
- Only certain parts of previous Acts applicable. Sections 9 and 10 of this 1874 Act made only certain sections of the 1868, 1869 and 1873 Acts applicable to Manitoba and British Columbia.
- GIC could exempt application of the Acts. This Act also provided that the Governor in Council could, by proclamation from time to time, exempt "the Indians or any of them, or any tribe of them or the Indian lands or any portion of them in the Province of Manitoba, or in the Province of British Columbia," from the operation of this Act or any of the 1868, 1869 and 1873 Acts.
- Certain BC provisions repealed. Interestingly, this federal legislation repealed "[t]he second, third, and seventh sections of the Ordinance, No. 85, of the Revised Statutes of British Columbia." This was An Ordinance to assimilate and amend the Law prohibiting the sale or gift of Intoxicating Liquor to Indians, established by the Colony of British Columbia in 1867. (I'm not sure how the federal government had the constitutional authority to repeal provincial legislation, so perhaps that could be the subject of another blog post! Perhaps, by then, given Canada's legislative jurisdiction over "Indians," it considered the provincial legislation to be ultra vires the province and so decided to legislatively "overrule" it?)
- One Act. Finally, this Act provided that it was to be construed as one Act with the Secretary of State & Indian Lands Act, 1868 and the Gradual Enfranchisement Act, 1869.
But even this legislation was flawed. As Chief Justice McEachern pointed out in his reasons for judgment in Delgamuukw, "most of the Act could not be applied to this province because it tied the definition of an Indian to a person who was receiving annuities, none of which were payable here. As a consequence, there was an amendment in August, 1874, making the Act inapplicable to British Columbia."
In fact, I can find no amendment to the Act. Rather, I find an Order-in-Council, PC 1874-1081 (August 26, 1874), providing that "Indians and Indian lands in the Province of British Columbia be exempted from the application of the eighth section of the Act 37 Vic. Cap. 21 respecting Indians; and that the necessary Proclamation to that effect do issue accordingly." Section 8 of the 1874 Act was the section containing the definition an "Indian". Thus, rather than "making the Act inapplicable to British Columbia," it appears that the August Order-in-Council made the definition of "Indian" inapplicable to British Columbia, in a seeming attempt to ensure that the remainder of the Act intended to apply to the province did so.
An aside: The question of Indian reserves
One reason that the applicability of the Indian Act to BC matters is the question of when federal legislation relating to "Indians" or the Indian Act applied to Indian reserves in BC. (And, of course, that begs the question of what constituted an "Indian reserve" at any given time in BC, an incredibly complex matter.) Although this applicability question is beyond the scope of this blog post, I will provide some legal history context for it here and address it in slightly more detail in Part 2 of this series.
In March 1874, the Dominion's Minister of the Interior and Superintendent General of Indian Affairs - the man in charge of "Indian affairs" for the Dominion, who was the primary provider of BC Superintendent Powell's instructions - wrote this in a Memorandum to Cabinet in relation to ongoing efforts to continue establishing Indian reserves in BC: "By the 13th Article of the Terms of Union, between Canada and British Columbia, the Indian Reserves in British Columbia were transferred to the Dominion Government and are now under the control of this Department." Anyone who knows the history of Indian reserves in BC knows that this is not what the courts have concluded happened. Nonetheless, it is interesting and perhaps important that the Dominion believed, as of this date, that any Indian reserves that existed prior to Confederation were now under its control. The Dominion Cabinet approved and adopted the subsequent recommendations in the Memorandum by Order-in-Council.
In March 1874, the Dominion's Minister of the Interior and Superintendent General of Indian Affairs - the man in charge of "Indian affairs" for the Dominion, who was the primary provider of BC Superintendent Powell's instructions - wrote this in a Memorandum to Cabinet in relation to ongoing efforts to continue establishing Indian reserves in BC: "By the 13th Article of the Terms of Union, between Canada and British Columbia, the Indian Reserves in British Columbia were transferred to the Dominion Government and are now under the control of this Department." Anyone who knows the history of Indian reserves in BC knows that this is not what the courts have concluded happened. Nonetheless, it is interesting and perhaps important that the Dominion believed, as of this date, that any Indian reserves that existed prior to Confederation were now under its control. The Dominion Cabinet approved and adopted the subsequent recommendations in the Memorandum by Order-in-Council.
Indian Act, S.C. 1876, c. 18
It is not until 1876 that Canada passed the first federal "Indian Act ". To consolidate the existing legislation, on 12 April 1876, the Act to amend and consolidate the laws respecting Indians - what we know as the Indian Act, 1876 - received Royal Assent. It stipulated, in s. 1, that it "shall apply to all the Provinces, and to the North West Territories, including the Territory of Keewatin." Thus, apart from the provisions described below, the Indian Act applied to British Columbia.
The new Indian Act was long - 100 sections - and repealed a veritable dog's breakfast of older provisions, including ones from the pre-Confederation Province of Canada and Province of Upper Canada. More importantly, it removed all the "Indian" provisions from the Secretary of State and Indian Lands Act, 1868, and repealed in their entirety the Gradual Enfranchisement Act, 1869 and the Indian Laws Amendment and Extension Act, 1874.
Two sections modified the rights of "Indians" in B.C., Manitoba, and two territories as compared to other provinces. And s. 94 provided that the preceding eight sections, all of which related to "enfranchisement," "shall not apply to any band of Indians in the Province of British Columbia..., save in so far as the said sections may, by proclamation of the Governor-General, be from time to time extended, as they may be, to any band of Indians in any of the said provinces or territories."
So with that (and subject to the exceptions), the federal Indian Act applied to BC...
The new Indian Act was long - 100 sections - and repealed a veritable dog's breakfast of older provisions, including ones from the pre-Confederation Province of Canada and Province of Upper Canada. More importantly, it removed all the "Indian" provisions from the Secretary of State and Indian Lands Act, 1868, and repealed in their entirety the Gradual Enfranchisement Act, 1869 and the Indian Laws Amendment and Extension Act, 1874.
Two sections modified the rights of "Indians" in B.C., Manitoba, and two territories as compared to other provinces. And s. 94 provided that the preceding eight sections, all of which related to "enfranchisement," "shall not apply to any band of Indians in the Province of British Columbia..., save in so far as the said sections may, by proclamation of the Governor-General, be from time to time extended, as they may be, to any band of Indians in any of the said provinces or territories."
So with that (and subject to the exceptions), the federal Indian Act applied to BC...
Phew! Told you it wasn't simple.
See Part 2, where I discuss the non-simpleness of the post-1876 applicability of the Indian Act, 1876 in British Columbia...
See Part 2, where I discuss the non-simpleness of the post-1876 applicability of the Indian Act, 1876 in British Columbia...
Sources
Squamish Indian Band v Canada, 2001 FCT 480.
An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, 31 Vict. (S.C. 1868), c. 42.
An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31 Victoria, Chapter 42, 32 & 33 Vict. (S.C. 1869), c. 6.
An Act respecting the force and effect of the Acts of the Parliament of Canada, in and in relation to the Province of Manitoba, and the Colony of British Columbia when it becomes a Province of the Dominion, 34 Vict. (S.C. 1871), c. 13.
An Act to provide for the establishment of "The Department of the Interior", 36 Vict. (S.C. 1873), c. 4.
An Act to amend certain Laws respecting Indians, and to extend certain Laws relating to matters connected with Indians to the Provinces of Manitoba and British Columbia, 37 Vict. (S.C. 1874), c. 21.
Indian Act, S.C. 1876, c. 18.
Report of the Indian Superintendent for BC, 1872 & 1873 (Ottawa: I.B. Taylor, 1873); Powell to Howe, 20 February 1873.
Annual Report on Indian Affairs for the year ending 30th June 1872 (Ottawa: I.B. Taylor, 1873); Howe to Dufferin, preamble.
PC 1873-14.
PC 1873-1625.
PC 1874-354.
PC 1874-1181.
Return to an Address of the Legislative Assembly praying for copies of all correspondence relating to Indian affairs, between the Dominion and Provincial Governments, since the beginning of 1874 (Victoria, B.C.: 1875).
John Leslie and Ron Maguire, "The Historical Development of the Indian Act," 2nd ed. (Ottawa: Department of Indian and Northern Affairs, 1978).
John Giokas, "The Indian Act : Evolution, Overview and Options for Amendment and Transition" (Ottawa, 1995).
John L Tobias, “Protection, Civilization, Assimilation: An Outline History of Canada’s Indian Policy” in As Long as the Sun Shines and Water Flows: A Reader in Canadian Native Studies, Nakoda Institute Occasional Papers (Vancouver: UBC Press, 1983) 39; originally published in Western Canadian Journal of Anthropology 6:2 (1976).
John S Milloy, “The Early Indian Acts: Developmental Strategy and Constitutional Change” in As Long as the Sun Shines and Water Flows: A Reader in Canadian Native Studies, Nakoda Institute Occasional Papers (Vancouver: UBC Press, 1983) 56.
An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, 31 Vict. (S.C. 1868), c. 42.
An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31 Victoria, Chapter 42, 32 & 33 Vict. (S.C. 1869), c. 6.
An Act respecting the force and effect of the Acts of the Parliament of Canada, in and in relation to the Province of Manitoba, and the Colony of British Columbia when it becomes a Province of the Dominion, 34 Vict. (S.C. 1871), c. 13.
An Act to provide for the establishment of "The Department of the Interior", 36 Vict. (S.C. 1873), c. 4.
An Act to amend certain Laws respecting Indians, and to extend certain Laws relating to matters connected with Indians to the Provinces of Manitoba and British Columbia, 37 Vict. (S.C. 1874), c. 21.
Indian Act, S.C. 1876, c. 18.
Report of the Indian Superintendent for BC, 1872 & 1873 (Ottawa: I.B. Taylor, 1873); Powell to Howe, 20 February 1873.
Annual Report on Indian Affairs for the year ending 30th June 1872 (Ottawa: I.B. Taylor, 1873); Howe to Dufferin, preamble.
PC 1873-14.
PC 1873-1625.
PC 1874-354.
PC 1874-1181.
Return to an Address of the Legislative Assembly praying for copies of all correspondence relating to Indian affairs, between the Dominion and Provincial Governments, since the beginning of 1874 (Victoria, B.C.: 1875).
John Leslie and Ron Maguire, "The Historical Development of the Indian Act," 2nd ed. (Ottawa: Department of Indian and Northern Affairs, 1978).
John Giokas, "The Indian Act : Evolution, Overview and Options for Amendment and Transition" (Ottawa, 1995).
John L Tobias, “Protection, Civilization, Assimilation: An Outline History of Canada’s Indian Policy” in As Long as the Sun Shines and Water Flows: A Reader in Canadian Native Studies, Nakoda Institute Occasional Papers (Vancouver: UBC Press, 1983) 39; originally published in Western Canadian Journal of Anthropology 6:2 (1976).
John S Milloy, “The Early Indian Acts: Developmental Strategy and Constitutional Change” in As Long as the Sun Shines and Water Flows: A Reader in Canadian Native Studies, Nakoda Institute Occasional Papers (Vancouver: UBC Press, 1983) 56.