Aboriginal Peoples

The process of state formation in Canada involved exclusion and marginalization for many. The most salient example is Aboriginal peoples, who after Confederation were systematically stripped of any semblance of equal rights under a legal regime designed to assimilate them. They were denied the right to vote in provincial, territorial, and federal elections. To become citizens they had to surrender their status and demonstrate that they were literate, debt-free, and of good moral character (by 1876, only one man had chosen enfranchisement). Aboriginal people living on reserves had no property rights; the federal government held their property in trust, which restricted economic development because it was impossible to mortgage the property for credit. The 1876 Indian Act extended an 1869 policy that required elections for band chiefs (the government later gave itself the power to depose chiefs) and restricted the powers of band councils by requiring federal Cabinet approval on some issues. It also required Aboriginal people to secure permission from the Indian Agent to sell their harvest to non-Aboriginals or to have the minister validate their will. Later iterations of the law banned Aboriginal people from being intoxicated off reserve, forced women to abandon their status if they married a non-Aboriginal (the same did not apply to men), banned women from running for band leadership, and required widows to prove they were of “moral character” to inherit property. In 1884 the federal government outlawed the potlatch, a ceremony that involved feasting and sharing goods to promote conciliation and cooperation among Aboriginal peoples. In 1885, the band was extended to the Sun Dance and Thirst Dance. A federal ban on Aboriginal political organizing and land claims was instituted in 1927. Together, these policies amounted to a coordinated attempt to undermine Aboriginal peoples’ cultures and ways of life. In the 1880s, the federal government required Aboriginal children to attend schools. These residential schools, often operated by Christian missionaries, were designed to further their assimilation. Tens of thousands of Aboriginals were profoundly traumatized and alienated from their families and communities as a result of their treatment in those schools.

One of the most formidable social movements of this period—in an era already famous for its activism—was the Aboriginal rights movement. Aboriginal peoples had rarely articulated their grievances using rights talk. Their hesitancy to embrace human rights was most apparent amidst the controversy over the federal government’s 1969 White Paper. The policy recommended, in essence, eliminating Indian status: “The policies proposed recognize the simple reality that the separate legal status of Indians and the policies which have flowed from it have kept the Indian people apart from and behind other Canadians. The Indian people have not been full citizens of the communities and provinces in which they live and have not enjoyed the equality and benefits that such participation offers.” The federal government sought to surrender responsibility for Aboriginal people to the provinces, repeal the Indian Act, and transfer control of lands to individual Aboriginals. The language of the proposed policy was deeply mired in rights discourse: “The Government believes in equality. It believes that all men and women have equal rights … To argue against this right is to argue for discrimination, isolation and separation.” But the policy was fundamentally flawed: it ignored more than a century of discrimination and a host of inequities that the state had imposed on Aboriginal peoples. The approach was profoundly assimilationist. Individual ownership of land, for instance, would have undermined collective landownership. The White Paper, which was quickly retracted, galvanized Aboriginal peoples. This was a critical moment in the emergence of the modern Aboriginal rights movement. Central to this activism was “the expansion of the term ‘Aboriginal rights,” which had often connoted land rights but was increasingly used to frame a host of grievances such as the right to self-government.”

Some versions of the law between 1920 and 1922, and 1933 to 1951, included involuntary enfranchisement. The 1876 Indian Act made enfranchisement a requirement for legal, medical, and religious professionals until it was made voluntary in 1880. “Since 1857, when the Province of Canada (forerunner of Southern Ontario) passed the Gradual Civilization Act, adult First Nation males who applied and could convince a board of examiners that they were literate, debt-free, and of good moral character could surrender their status as ‘Indians’ and become full British Canadian citizens, with all attendant rights, including the vote, after a three-year probationary period in which they would demonstrate further their fitness to join the general citizenry … The statute’s reach was considerable: an enfranchised male’s wife and children would also become enfranchised and lose Indian status, as would all their descendants forever.” Miller, “Human Rights for Some.”

When they lost their status, Aboriginal women forfeited their right to live on Aboriginal lands, own band property, inherit land or a house on a reserve, and be buried on a reserve (yet, as one observer has noted, non-Aboriginals could bury dead dogs in a pet cemetery on a reserve). They could not regain their status, and thereby return to their home, if their marriage dissolved or they divorced. This provision remained in place until 1985. It was one among many forms of sex discrimination under the Indian Act that survived until the mid-1980s: women and their children were involuntarily enfranchised if their husband/father was enfranchised; married women’s band membership was determined by their husband’s band; illegitimate children of Aboriginal men or non-Aboriginal women were denied status; and children lost status when they reached the age of twenty-one if their mother did not have status before she was married. The complete list of losses facing Aboriginal women who lost their status is described in detail in Sally Weaver, “First Nations Women and Government Policy.”

Further Reading

Dobrowsky, Alexandra. “Identity and Rights Reclaimed: Appreciating and Assessing Aboriginal Women’s Interventions in Canada.” In Rights, Movements, Recognition – Papers in Social Theory 6, edited by Neil Stammers. Sussex: Warwick Social Theory Centre, 2001.

Kulchinsky, Peter. Aboriginal Rights Are Not Human Rights.  Winnipeg: ARP Books, 2013.

McChesney, Allan. “Aboriginal Communities, Aboriginal Rights, and the Human Rights System.” In Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by Abdullahi Ahmed An-Na’im, 221-52. Philadelphia: University of Pennsylvania Press, 1992.

Miller, J.R. “Human Rights for Some: First Nations Rights in Twentieth-Century Canada.” In Taking Liberties: A History of Human Rights in Canada, edited by Stephen Heathorn and David Goutor, 233-60. Toronto: Oxford University Press, 2013.

Venne, Muriel Stanley, and Lewis Cardinal. The Aboriginal Perspective on Human Rights in Alberta.  Edmonton: Aboriginal Commission on Human Rights & Justice, 2008. Bibliographies

Weaver, Sally. “First Nations Women and Government Policy, 1970-92: Discrimination and Conflict.” In Changing Patterns: Women in Canada, edited by Sandra Burt, Lorraine Code and Lindsay Dorney, 92-147. Toronto: McClelland and Stewart, 1993.