Indigenous Policy and Silence at Confederation

This essay is the first in a three-part series on Confederation that provides critical historical context for Canada’s sesquicentennial anniversary. The other essays will appear on the 28th and 30th of June.

Brian Gettler

Infamously, the British North America Act only mentions, “Indians and lands reserved for the Indians” in a single sub-clause, assigning responsibility for both to the federal government. The “Fathers of Confederation” first adopted the phrase without debate at the Quebec Conference in 1864, adding “Indians” to the federal powers proposed by the Canadian Liberal-Conservatives in their aborted 1858 project of British North American Union, while replacing the less specific “Indian territories” with “lands reserved for Indians.”[1] Along with the Indian Department and Indigenous policy more generally, this sub-clause remained absent from parliamentary debate on both sides of the Atlantic in the years following 1864 and from the London Conference that in the winter of 1866-67 produced the final version of the BNA Act. Historians of Confederation have long replicated this silence, finding no role for relations with Indigenous peoples in the constitutional origins of modern Canada. Historians of Indigenous-state relations have concurred, unanimously downplaying Confederation while instead focusing on changing legislation from 1850, the 1860 shift in responsibility for the Indian Department from the empire to the colony, Canada’s 1869 purchase of Rupert’s Land from the Hudson’s Bay Company, the Red River Resistance, and the numbered treaties of the 1870s. Though correct to concentrate on these critical issues, we need to do more; we need to place them at the heart of our understanding of state formation and changing political thought in the mid-nineteenth century. This is critical if we are to avoid replicating the “Fathers’” imperial and imperious perspective that, though consciously centred on land, resources, and the liberal individual, declared relations with Indigenous peoples a mere political afterthought.

Though histories of Confederation tend to begin in the late 1850s or early-to-mid 1860s, the 1849 confirmation of responsible government in the Province of Canada provides a more appropriate starting point with respect to Indigenous-state relations. Up to 1849, the executive maintained its prerogative over Indigenous affairs, as no elected body in Upper or Lower Canada successfully legislated on the matter.[2] From 1850, though, this changed as the colony’s legislators enthusiastically adopted a series of laws applying to Indigenous peoples and lands. These laws built on a broad cultural shift in policy circles under way since the second half of the 1810s. Under the influence of humanitarians in the metropole and missionaries in the colonies, along with some Indigenous leaders, the state’s approach shifted from an earlier emphasis on alliance between nominally independent political communities (embodied in annual presents) towards one that stressed community members’ potential rebirth as liberal individuals (evidenced by the advent and development of “Indian” status). As it passed from imperial to colonial jurisdiction in 1860, the Indian Department became the official body charged with instilling in Indigenous peoples European values and lifeways, aided in this project by the network of missions and Church-run schools established over the preceding decades.

At the same time, the Indian Department gained greater control over Indigenous lands, resources, and funds. In 1851, Canada set aside 230,000 acres for the creation of Upper Canadian style reserves in Lower Canada, framing the shift in the legal status of lands held by Indigenous villages brought on three years later by the end of the seigneurial system. The administrative capture of funds generated by land and resource sales simultaneously provided the Department with increasing influence over on-reserve life in both Upper and Lower Canada. From 1858, the colony invested a portion of this revenue in a fund designed to ensure the Indian Department’s “self”-sufficiency, required, they believed, since the empire would be withdrawing its funding along with its control in 1860.[3] Though ultimately unsuccessful, this project informed the Department’s approach to public finance for decades to come.

By the early 1860s, then, a decade of profound legislative and administrative developments had remade Indigenous-state relations. These changes effectively anticipated Confederation, as Canadian politicians assumed responsibility for a well-established imperial institution, the legislation under which it operated, and the policy it implemented. Historians, though, have not made this argument, seemingly because we have been oblivious rather than attentive to the silences concerning First Nations in the documentary record on Confederation.

When representatives of five colonies convened in Quebec in October 1864 to draft the blueprint for Confederation, they did so within only a few hundred meters of the Indian Department’s headquarters. We have no indication, though, that its personnel had any contact with the delegates. At least two of those actually in the room during the conference – the then Superintendent General of Indian Affairs and his immediate predecessor – could have spoken at length and with authority on Indigenous policy. Yet, the minutes do not record any discussion of the subject nor, indeed, any indication that either man ever spoke.[4] As Confederation came and went, politicians continued to ignore Indigenous relations to such an extent that the Department remained an administrative orphan until May 1868 when it formally came under the purview of the Secretary of State. The new federal state needed even more time to organize the Department’s presence beyond Quebec and Ontario, only confirming Nova Scotia’s Commissioner of Indian Affairs in his position in late September 1868.

The new federal state’s remarkable nonchalance with respect to Indigenous affairs underscores just how obvious and unproblematic the issue appeared to Euro-Canadians in the run-up to 1 July 1867 and in the months and years immediately thereafter. The absence of Indigenous affairs from the Confederation debates and the inaction that followed the BNA Act requires us to revise modern Canada’s origin story. We should understand the silence of 1867 as the colonial project at its most imperial, as actors simply assumed it to be natural, necessary, and, indeed, noble. It points to colonial politicians’ unquestioned and unquestioning belief that the state already had “solved” relations with Indigenous peoples, that the new Constitution only needed to recognize the validity of existing practices of territorial dispossession and “improvement.” This silence, underlined and problematized, ought to be at the heart of our thinking about Canada on 1 July, whether in 1867 or 150 years later.

Brian Gettler is an Assistant Professor of History at the University of Toronto. His research interests centre on Indigenous political, economic, and social history and the history of Quebec and Canada since the Conquest. He is currently completing a manuscript on the political history of Indigenous money-use in the nineteenth and twentieth centuries and beginning a project analyzing the central role played by the Department of Indian Affairs in the Confederation-era history of Canadian state formation.

SSHRC provided funding for the research on which this essay is based.

[1] G.E. Cartier, J.J. Ross, and M. East [A.T. Galt] to Sir Edward Lytton, 25 October 1858, in G. P. Browne, ed., Documents on the Confederation of British North America (Montreal: McGill-Queen’s University Press, 2009), 18.

[2] The Special Council, an unelected legislative body imposed following the Rebellion of 1837 in Lower Canada, adopted an ordinance allowing the governor to eject anyone from Indigenous villages in Lower Canada in 1840. The Legislative Assembly also adopted legislation in 1847 – the “Bill to Incorporate the Indian Tribes in Lower Canada” – though the Legislative Council prevented it from becoming law. Maxime Gohier, “La pratique pétitionnaire des Amérindiens de la vallée du Saint-Laurent sous le Régime britannique : pouvoir, représentation et légitimité (1760-1860)” (Thèse de doctorat (histoire), Université du Québec à Montréal, 2014), 531–42.

[3] David Shanahan, “The Indian Land Management Fund: Financing the Indian Department, 1830-1914” (s.l.: Shanahan Research Associates for Treaties and Historical Research, Department of Indian Affairs, August 1991).

[4] Christopher Moore, Three Weeks in Quebec City: The Meeting That Made Canada (Toronto: Allen Lane, 2015), 154.

Featured Image: British North America Act, 1867. Wikimedia Commons, public domain.

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