Canadian Indians and the Law: Selected Documents, 1663-1972 9780773595446

Table of contents :
Cover
Title
Copyright
TABLE OF CONTENTS
PREFACE
INTRODUCTION
SECTION A: THE EARLY BRITISH COLONIAL PERIOD, 1760-1826
A1. Articles of Capitulation, Montreal, 1760. (Extracts)
A2. Royal Proclamation, October 7, 1763. (Extracts)
A3. Instructions to Governor Murray, December 7, 1763. (Extracts)
A4(a). Instructions to . Governor Carleton, January 3, 1775. (Extract)
A4(b). Plan for the Future Management of Indian Affairs, Referred to in the Thirty-Second Article of the Foregoing Instructions to Governor Carleton, January 3, 1775.
A5. Instructions to Sir Guy Carleton, Govemor-in-Chief and Captain-General, August 23, 1786. (Extract)
A6. Instructions to Lord Dorchester as Governor of Upper Canada, September 16, 1971. (Extract)
A7. “Jay ’s Treaty” of Amity, Commerce and Navigation, November 19, 1794. (Extract)
A8(a). Letter, Lord Portland to Lieutenant-Govemor Simcoe regarding Military and Civil Administration of Indian Affairs, September 3, 1795.
A8(b). Additional Instructions Relating to the Indian Department, December 15, 1796.
A8(c). Letter, Lord Portland to the Duke of York regarding Military and Civil Administration of Indian Affairs, February 21, 1800.
A9. The Treaty of Ghent, December 24, 1814. (Extract)
A 10(a) Letter, Sir Peregrine Maitland to Lord Bathurst regarding the Status of Indians as Subject to British or Canadian Law, February 14, 1823.
A 10(b) Letter, Lord Bathurst to Sir Peregrine Maitland regarding the Status of Indians as Subject to British or Canadian Law, August 11, 1823.
A 10(c) Letter, Sir Peregrine Maitland to Lord Bathurst regarding the Status of Indians as Subject to British or Canadian Law, November 4, 1825.
A 10(d) Warrant for the Execution of an Indian as Subject to British or Canadian Law, February 13, 1826.
SECTION B: PRE-CONFEDERATION LEGISLATION, 1663-1916
B1. Decree of the Superior Council of Quebec Forbidding all Persons to Trade or Give Intoxicating Liquors to Indians, September 28, 1663. (Translation)
B2. Decree of the Superior Council of Quebec Subjecting Indians to the Penalty Carried by the Laws and Ordinances of France Concerning Murder and Rape, April 21, 1664. (Translation)
B3. Ordinance in Favour of the Inhabitants of Notre- Dame-des-Neiges bearing on the Clause of Confiscation Inserted in their Contracts of Concession against those who give Brandy to the Indians to be Null and Void, July 2, 1706. (Translation)
B4. Decree of the Superior Council of Quebec which Orders the Registration of the Ordinance of His Majesty, which Prohibits the Sale of Intoxicating Liquors to the Indians of this Country, October 24, 1707. (Translation)
B5. Ordinance on the Subject of Negroes and the Indians called Panis, April 13, 1709. (Translation)
B6. 17 George III (1777) Cap. 7 (Province of Quebec). An Ordinance to Prevent the Selling of Strong Liquors to the Indians in the Province of Quebec, as also to Deter Persons from Buying their Arms or Clothing, and for other Purposes relative to the Trade and Intercourse with the Said Indians.
B7. 10 George IV (1829) Cap. 3 (Upper Canada). An Act the Better to Protect the Mississaga Tribes Living on the Indian Reserve of the River Credit, in their Exclusive Right of Fishing and Hunting Therein.
B8. 2 Victoria (1839) Cap. 15 (Upper Canada). An Act for the Protection of the Lands of the Crown in this Province from Trespass and Injury.
B9. 13 and 14 Victoria (1850) Cap. 42 (Province of Canada). An Act for the Better Protection of the Lands and Property of the Indians in Lower Canada.
B10. 13 and 14 Victoria (1850) Cap. 74 (Province of Canada). An Act for the Protection of Indians in Upper Canada from Imposition, and the Property occupied or enjoyed by them from Trespass and Injury.
B11. 14 and 15 Victoria (1851) Cap. 51 (Province of Canada). An Act to Consolidate and Regulate the General Clauses Relating to Railways. (Extract)
B12. 14 and 15 Victoria (1851) Cap. 59 (Province of Canada). An Act to Repeal in Part and to Amend an Act, Intitled, An Act for the Better Protection of the Lands and Property of the Indians in Lower Canada (cf. 13 and 14 Victoria (1850) Cap. 42 (document B9 above)).
B13. 14 and 15 Victoria (1851) Cap. 106 (Province of Canada). An Act to Authorize the Setting Apart of Lands for the Use of Certain Indian Tribes in Lower Canada.
B14. 16 Victoria (1853) Cap. 191 (Province of Canada). An Act to Authorize the Formation of Joint Stock Companies to Construct Works Necessary to Facilitate the Transmission of Timber down the Rivers and Streams in Upper Canada. (Extract)
B15. 20 Victoria (1857) Cap. 26 (Province of Canada). An Act to Encourage the Gradual Civilization of the Indian Tribes in this Province, and to Amend the Laws Respecting Indians.
B16. 23 Victoria (1860) Cap. 14 (Province of Canada). An Act Respecting Indians and Indian Lands.
B17. Laws of British Columbia after the Union of Vancouver Island and British Columbia No. 74 (1867). An Ordinance to Provide for the Taking of oaths and Admission of Evidence in Certain Cases. (Extract)
B18. Laws of British Columbia after the Union of Vancouver Island and British Columbia No. 85 (1867). An Ordinance to Assimilate and Amend the Law Prohibiting the Sale or Gift of Intoxicating Liquor to Indians. (Extract)
B19. Statutes of Newfoundland Chapter 80 (1916). of the Protection of Esquimaux and Indians.
SECTION C: THE BRITISH NORTH AMERICA ACT, THE INDIAN ACTS, AND ALLIED DOCUMENTS
C1 . 30 Victoria (1867) Cap. 3 (United Kingdom). An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes Connected therewith (The British North America Act). (Extract)
C2. 31 Victoria (1868) Cap. 42 (Canada). An Act Providing for the Organisation of the Department of the Secretary of State of Canada, and for the Management of Indian and Ordnance Lands.
C3. 32 and 33 Victoria (1869) Cap. 6 (Canada). An Act for the Gradual Enfranchisement of Indians, the Better Management of Indian Affairs, and to Extend the Provisions of the Act 31 Victoria Cap. 42.
C4. 33 Victoria (1870) Cap. 3 (Canada). An Act to Amend and Continue the Act 32 and 33 Victoria Cap. 3; and to Establish and Provide for the Government of the Province of Manitoba (The Manitoba Act, 1870). (Extract)
C5. Order of Her Majesty in Council Admitting Rupert’s Land and the North-Western Territory into the Union. At the Court at Windsor, June 23, 1870. (Extract)
C6. Order of Her Majesty in Council Admitting British Columbia into the Union. At the Court at Windsor, May 16, 1871. (Extract)
C7. 37 Victoria (1874) Cap. 21 (Canada). 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.
C8. 39 Victoria (1876) Cap. 18 (Canada). An Act to Amend and Consolidate the Laws Respecting Indians (The Indian Act, 1876).
C9. 42 Victoria (1879) Cap. 34 (Canada). An Act to Amend the Indian Act, 1876.
C10. 43 Victoria (1880) Cap. 28 (Canada). An Act to Amend and Consolidate the Laws Respecting Indians (The Indian Act, 1880).
C11. 54 Victoria (1891) Cap. 3 (Ontario). An Act for the Settlement of Questions Between the Governments of Canada and Ontario Respecting Indian Lands.
C12. 20 and 21 George V (1930) Cap. 29 (Canada). An Act Respecting the Transfer of The Natural Resources of Manitoba. (Extract)
C13. 20 and 21 George V (1930) Cap. 37 (Canada). An Act Respecting the Transfer of the Railway Belt and the Peace River Block. (Extract)
C14. 20 and 21 George V (1930) Cap. 41 (Canada). An Act Respecting the Transfer of the Natural Resources of Saskatchewan. (Extract)
C15. 14 and 15 George VI (1951, and as amended to 1972) Cap. 29 (Canada). An Act Respecting Indians (The Indian Act 1951)
SECTION D: PRE-CONFEDERATION AND POSTCONFEDERATION TREATIES, 1811- 1921
D 1(a ). The Selkirk Treaty, 1817.
D 1(b ). Indenture of Sale from the Hudson’s Bay Company to the Earl of Selkirk, 1811.
D2. The Robinson Superior Treaty, 1850.
D3. Treaty Number One, 1871.
D4. Treaty Number Eleven, 1921, with Subsequent Adhesions.
LIST OF SOURCES AND REFERENCES
SUGGESTIONS FOR FURTHER READING

Citation preview

Canadian Indians and the Law: Selected Documents, 1663-1972

Canadian Indians and the Law: Selected Documents, 1663-1972 edited and with an introduction by Derek G. Smith

The Carleton Library No. 87 P u b lis h e d b y M c C lellan d a n d S te w a r t L im ite d in a s s o c ia tio n w ith th e I n s t i tu t e o f C a n a d ia n S tu d ie s , C a rle to n U n iv e rsity . T h e e d ito r ia l b o a rd o f th e C a rle to n L ite r a ry S e ries g r a te fu lly a c k n o w le d g e s t h e s u p p o r t o f th e C a n a d a C o u n c il, t h e H u m a n itie s R e s e a rc h C o u n c il, a n d th e S o c ial S c ie n c e R e s e a rc h C o u n c il o f C a n a d a .

T H E C A R L E T O N L IB R A R Y

A series o f C anadian reprints, original w o rk s, and new collections o f source m aterial relating to C anada, issued under the editorial supervision o f the Institute o f C anadian Studies o f C arleton U niversity, O ttaw a.

DIRECTOR O F T H E INSTITU TE

D avidson D unton G E N E R A L ED ITO R

M ichael G narow ski E X E C U T IV E ED ITO R

Jam es M arsh ED ITO RIA L BOARD

B. C arm an B ickerton (H isto ry ) D ennis Forcese (S o c io lo g y ) D avid K night (G e o g ra p h y) J. G eorge N euspiel (Law ) T h o m as K. R ym es (E co n o m ics) D erek G . Sm ith (A n th ro p o lo g y ) M ichael S. W hittington (P olitical Science)

© M cC lelland a n d Stew art L im ited, 1975 A L L RIGHTS RESERVED

0-7710-9787-5 The C anadian P ublishers M cC lelland and Stew art L im ited 25 H ollinger R oad, T oronto 374 P rin ted a n d b o u n d in C anada

TABLE OF CONTENTS PR E F A C E

xi

IN T R O D U C T IO N SE C T IO N

A l.

xiii

A: T H E E A R L Y B R IT ISH PE R IO D , 1760-1826 1

C O L O N IA L

A rticles of C apitulation, M ontreal, 1760. (E xtracts) 1 A 2. R oyal P roclam ation, O ctober 7, 1763. (E xtracts) 2 A 3. Instructions to G overnor M urray, D ecem ber 7 , 1763. (E xtracts) 4 A 4(a). Instructions to . G overnor C arleton, January 3, 1775. (E xtract) 5 A 4(b). Plan for the Future M anagem ent o f Indian A ffairs, Referred to in the T hirty-S econd A rticle o f the F oregoing Instructions to G overnor C arleton, January 3, 1775. 6 A5. Instructions to Sir G uy C arleton, G ov em o r-in -C h ief and C aptain-G eneral, A ugust 23, 1786. (E xtract) 13 A 6. Instructions to Lord D orchester as G overnor o f U pper C anada, S eptem ber 16, 1971. (E xtract) 14 A 7. “ Ja y ’s T re a ty ” o f A m ity, C om m erce and N avigation, N ovem ber 19, 1794. (E xtract) 14 A 8(a). L etter, L ord Portland to L ieutenant-G ovem or Simcoe regarding M ilitary and C ivil A dm inistration o f Indian A ffairs, S eptem ber 3 , 1795. 16

A 8(b).

A dditional Instructions R elating to the Indian D e­ partm ent, D ecem ber 15, 1796. 18 A 8(c). Letter, Lord Portland to the D uke of Y ork regarding M ilitary and C ivil A dm inistration o f Indian Af­ fairs, F ebruary 21, 1800. 19 A 9. T he T reaty o f G hent, D ecem ber 2 4 , 1814. (E xtract) 21 A 10(a) L etter, S ir Peregrine M aitland to L ord Bathurst regarding the Status o f Indians as Subject to • British o r C anadian L aw , February 14, 1823. 21 A 10(b)

A 10(c)

A 10(d)

L etter, Lord Bathurst to S ir Peregrine M aitland regarding the Status o f Indians as Subject to B ritish o r C anadian L aw , A ugust 11, 1823. 22 L etter, S ir Peregrine M aitland to Lord B athurst regarding the Status o f Indians as Subject to British o r C anadian L aw , N ovem ber 4, 1825. 23 W arrant for the E xecution o f an Indian as Subject to B ritish o r C anadian L aw , F ebruary 13, 1826. 24

SE C T IO N B: PR E -C O N FE D E R A T IO N L E G ISL A T IO N , 1663-1916 26 B 1.

B2.

B 3.

B4.

D ecree o f the S uperior C ouncil o f Q uebec Forbidding all Persons to T rade o r G ive Intoxicating Li­ quors to Indians, S eptem ber 28, 1663. (T ranslation) 26 D ecree o f the S uperior C ouncil o f Q uebec Subjecting Indians to the Penalty C arried by the L aw s and O rdinances o f France C oncerning M urder and R ape, April 21, 1664. (T ranslation) 27 O rdinance in F avour o f the Inhabitants o f NotreD am e-des-N eiges bearing on the Clause o f C on­ fiscation Inserted in their C ontracts o f C onces­ sion against those w ho give Brandy to the In­ dians to be Null and V oid, July 2 , 1706. (T ranslation) 28 D ecree o f the S uperior Council o f Q uebec w hich Or­ ders the R egistration o f the O rdinance o f His

M ajesty, which Prohibits the Sale o f Intoxicating Liquors to the Indians o f this C ountry, Oc­ tober 24, 1707. (T ranslation) 29 O rdinance on the Subject o f N egroes and the Indians called P anis, A pril 13, 1709. (T ranslation) 30.. r

B5.

B6.

17 G eorge m (1777) C ap . 7 (Province o f Q uebec). An O rdinance to Prevent the Selling o f Strong Li­ quors to the Indians in the Province o f Q uebec, as also to D eter Persons from Buying their Arm s or C lothing, and for o th er Purposes relative to the T rade and Intercourse w ith the Said Indians. 31

B7.

10 G eorge iv (1829) Cap. 3 (U p p e r C anada). An Act the B etter to Protect the M ississaga T ribes. Liv­ ing on the Indian R eserve o f the R iver C redit, in their E xclusive R ight o f Fishing and H unting T herein. 32

B8.

2 V ictoria (1839) C ap. 15 (U p p e r C anada). An A ct for the Protection o f the L ands o f the C row n in this Province from T respass and Injury. 35 B9. 13 and 14 V ictoria (1850) C ap. 42 (Province o f C anada). An A ct for the B etter Protection o f the Lands and Property o f the Indians in Low er C anada. 38 BIO. 13 and 14 V ictoria (1850) C ap. 74 (Province o f C anada). An Act for the Protection o f Indians in U pper C anada from Im position, and the Prop­ erty occupied o r enjoyed by them from T respass and Injury. 40 B Il. 14 and 15 V ictoria (1851) C ap. 51 (Province o f

B 12.

B13.

C anada). An Act to C onsolidate and Regulate the G eneral C lauses R elating to R ailw ays. ' (E xtract) 47 14 and 15 V ictoria (1851) C ap. 59 (Province o f C anada). An A ct to Repeal in Part and to A m end an A ct, Intituled, An Act for the B etter Protec­ tion o f the L ands and Property o f the Indians in L ow er C anada (cf. 13 and 14 V ictoria (1850) Cap. 42 (docum ent B9 above)). 47 14 and 15 V ictoria (1851) C ap. 106 (Province of C anada). An Act to A uthorize the Setting Apart

B 14.

B 15.

B 16.

B 17.

B 18.

B 19.

o f L ands for the Use o f Certain Indian T ribes in L ow er C anada. 48 16 V ictoria (1853) Cap. 191 (Province o f C anada). An A ct to A uthorize the Form ation o f Joint Stock C om panies to C onstruct W orks N eces­ sary to Facilitate the T ransm ission o f T im ber dow n the R ivers and Stream s in U pper C anada. (E xtract) 49 20 V ictoria (1857) Cap. 26 (Province o f C anada). An Act to E ncourage the G radual C ivilization o f the Indian T ribes in this P rovince, and to A m end the L aw s R especting Indians. 50 23 V ictoria (1860) Cap. 14 (Province o f C anada). An Act R especting Indians and Indian L ands. 54 Law s o f British C olum bia a fter the U nion o f V an­ couver Island and British C olum bia N o. 74 (1867). An O rdinance to Provide for the T aking o f O aths and A dm ission o f Evidence in Certain C ases. (E xtract) 58 Law s o f B ritish C olum bia after the U nion o f V an­ couver Island and British C olum bia No. 85 (1867). An O rdinance to A ssim ilate and Am end the L aw Prohibiting the Sale or Gift o f Intoxicat­ ing L iquor to Indians. (E xtract) 59 Statutes o f N ew foundland C hapter 80 (1916). O f the Protection o f E squim aux and Indians. 60

SE C T IO N C: T H E B R IT ISH N O R TH A M E R IC A A C T , THE IN D IA N A CTS, AND A LLIED DOCUM ENTS 62 C l.

C 2.

C3.

30 V ictoria (1867) Cap. 3 (U nited K ingdom ). An Act for the U nion o f C anada, N ova Scotia, and New B runsw ick, and the G overnm ent thereof; and for Purposes C onnected therew ith (T he British North A m erica A ct). (E xtract) 62 31 V ictoria (1868) C ap. 42 (C anada). An A ct Provid­ ing for the O rganisation o f the D epartm ent o f the S ecretary o f State o f C anada, and for the M an­ agem ent o f Indian and O rdnance L ands. 64 32 and 33 V ictoria (1869) C ap. 6 (C anada). An A ct for

C 4.

C 5.

C6.

C 7.

C8.

C9. CIO.

C l 1.

C 12.

C 13.

C14.

the G radual E nfranchisem ent o f Indians, the B etter M anagem ent o f Indian A ffairs, and to Extend the Provisions o f the Act 31 V ictoria Cap. 4 2 . 73 33 V ictoria (1870) C ap. 3 (C anada). An Act to A m end and C ontinue the A ct 32 and 33 V ictoria Cap. 3; and to E stablish and Provide for the G overnm ent o f the Province o f M anitoba (T he M anitoba Act, 1870). (E xtract) 79 O rder o f H er M ajesty in C ouncil A dm itting R upert’s Land and the N orth-W estern T erritory into the U nion. At the C ourt at W indsor, June 23, 1870. (E xtract) 80 O rder o f H er M ajesty in C ouncil A dm itting British C olum bia into the U nion. At the C ourt at W ind­ sor, M ay 16, 1871. (E xtract) 81 37 V ictoria (1874) Cap. 21 (C anada). An A ct to A m end C ertain L aw s R especting Indians, and to E xtend C ertain L aw s R elating to M atters C on­ nected with Indians to the Provinces o f M an­ itoba and British C olum bia. 81 39 V ictoria (1876) Cap. 18 (C anada). An Act to A m end and C onsolidate the Law s R especting Indians (T he Indian A ct, 1876). 86 42 V ictoria (1879) C ap. 34 (C anada). An A ct to A m end the Indian A ct, 1876. 115 43 V ictoria (1880) Cap. 28 (C anada). An Act to A m end and C onsolidate the Law s R especting Indians (T he Indian A ct, 1880). 118 54 V ictoria (1891) Cap. 3 (O ntario). An Act for the S ettlem ent o f Q uestions B etw een the G overn­ m ents o f C anada and O ntario R especting Indian L ands. 149 20 and 21 G eorge V (1930) C ap. 29 (C anada). An Act R especting the T ransfer o f T he N atural R e­ sources o f M anitoba. (E xtract) 151 20 and 21 G eorge V (1930) C ap. 37 (C anada). An Act R especting the T ransfer o f the R ailw ay Belt and the Peace R iver B lock. (E xtract) 153 20 and 21 G eorge V (1930) C ap. 41 (C anada). An Act R especting the T ransfer o f the N atural Re­ sources o f Saskatchew an. (E xtract) 153

C 15.

14 and 15 G eorge VI (1951, and as am ended to 1972) Cap. 29 (C anada). An Act R especting Indians (The Indian A ct 1951). . 154

SE C T IO N

D: PR E -C O N FE D E R A T IO N A N D C O N FE D E R A T IO N T R E A T IE S , 1921 197

PO ST ­ 1811-

D l(a ). D l(b ). D2. D3. D4.

T he Selkirk T rea ty , 1817. 197 Indenture o f Sale from the H udson’s Bay C om pany to the Earl o f Selkirk, 1811. 198 T he R obinson Superior T reaty , 1850. 201 T reaty N um ber O ne, 1871. 204 T reaty N um ber E leven, 1921, with S ubsequent A dhesions. 207

L IST O F SO U R C E S A N D R E FE R E N C E S SU G G E ST IO N S FO R FU R T H E R RE A D IN G

215 217

Preface T H E prim ary purpose o f this volum e is to draw together and make readily available to the public a selective com pilation o f legal docu­ m ents concerning Indians in C anada. M any o f the docum ents are extrem ely difficult to track dow n, especially for the laym an, and m any can only be found in m ajor legal libraries. It is m y hope that m ore ready access to these docum ents will assist interested C anadians in m aking them selves fam iliar w ith the historical basis o f Indian/non-Indian rela­ tions in this country, and will help the inform ed laym an to appreciate the im m ensity and com plexity o f the legal confrontations over Indian m atters w hich m ust face all C anadians in com ing years. N aturally the item s selected for this volum e are only a sm all portion o f the relevant m aterials, and readers m ay wish that one selection o r another w as included o r deleted. H ow ever, I have tried very hard to ensure that there is a reasonably fair representation in the available space o f all the m ain types o f docum ents and the issues they define. Judicial decisions, a m ost im portant category o f docum ents, have been reserved for a separate volum e with an introduction by a qualified law yer. A lso, French legislation until 1763 deserves co n sid ­ erably m ore attention than can be given here. S om ehow C anadians have been inclined to shrug o ff the French Indian legislation as dead history w ith no m odern relevance. H ow ever, such issues as the form a­ tion o f M etis com m unities and their dispersion cannot be dissociated from the pre-1763 French policy and practice. T he French period deserves very close attention and research; it can only be touched in passing in this volum e. M any o f the older pieces o f legislation represented here have been repealed, and are principally o f historical interest; others (such as Ja y ’s T reaty) have been the focus o f continuing debate over th eir current legal status— a point o f conflict betw een Indians and various go v ern ­ m ents still. W hether a piece of legislation is currently in force or not, an exam ination o f the selections in this volum e show s that it is clear that over tim e there have been som e rem arkable continuities o f Indian policy and legislation; it is clear too that m ajor questions now loom ing on the horizon can only be considered in deep historical perspective. T his volum e has attem pted to provide item st w hich illustrate these points. xi

Xii

C A N A D IA N IN D IA N S A N D T H E LA W

T he Introductory essay is not a technical legal one. It is an overview o f w hat I feel to be the m ain social im plications o f principal points in C anadian Indian legislation. I have also tried to point out w here certain sociological and anthropological concepts m ay fruitfully be brought to bear on these points. Special thanks m ust be given to the L ibrarian o f the L ibrary o f the Suprem e C ourt o f C anada in O ttaw a. H e and his staff facilitated the tracking dow n o f som e o f the rarer but m ore im portant item s. Claire F assett assisted in translating the item s from the French regim e. D erek G . Sm ith O ttaw a J u n e, 1974

Introduction I T R A D IT IO N A L L Y , C anadian anthropologists have been m ost c o n ­ cerned with detailed description and analysis o f socio-cultural o rgani­ zation am ong C a n a d a 's Indians and E skim os. T h eir preference for com m unity studies and participant observation techniques has fostered an em phasis on group and com m unity differences am ong N ative peo­ ple. W ith som e exceptions, it is only in recent years that they have begun to consider m ore system atically those features w hich relate C anadian N ative peoples considered as a m ore general ethnic group (or groups) to the structure and dynam ics o f C anadian society as a w hole. T he recent upsurge o f interest am ong N ative peoples and other C ana­ dians concerning Indian land claim settlem ent and the recognition o f aboriginal rights has caused m any anthropologists to consider m ore carefully than heretofore the h istorical, legal, and constitutional posi­ tion o f N ative people in the C anadian polity. It is naturally with trepidation that an anthropologist tries to deal with the role o f law in C anadian society, although it has been a crucial factor in shaping the social phenom ena he studies. Perhaps increasingly he cannot avoid dealing with it directly. H is interest is not in its legal technicalities/??/- se. He is interested in know ing how the law , as only one o f several im portant societal phenom ena, has historically directed, sustained, o r m odified patterns o f social interaction betw een the heterogeneous segm ents o f C anadian society. H e m ay ask about the social values, beliefs, attitudes, opinions and sentim ents w hich under­ lie C anadian law concerning N ative people. H e m ay w ish to assess the extent to which these relate to such m atters as social stratification, poverty, social prejudice and discrim ination, or the form ation o f N ative political m ovem ents. T hese questions are not easy to analyze and evaluate. T heir solution requires m uch m ore than a consideration o f legal history; but perhaps legal history has not alw ays been considered carefully enough. In N orth A m erica the sociology o f law has tended to be oriented to w hat w e m ay call a “ sociology o f ju ris p ru d e n c e " , with a considerable bent to practical legal-social issues. T his has been true too o f Social A nthropology, represented by its m any cross-cultural studies o f court system s and litigation procedures. In E urope, on the oth er hand, rather than the developm ent o f a special sociological science o f law , the x iii

xiv

C A N A D IA N IND IA NS A N D T H E LA W

sociology o f law has been m uch m ore a part o f a general sociological science o f society. Perhaps w hat is required now is that a degree o f rapprochem ent be sought betw een these divergent em phases. Surely, as G u rv itch 1 has so cogently argued, the sociology o f law m ust com ­ prehend the full social reality o f the law , ranging from (a) its tangible expressions in legal institutions and organizations, through (b) its role in social control and social integration, to (c) jural values and ideas and the collective beliefs and intuitions w hich the law both reflects and helps to shape. Social anthropologists should have a particular interest in the latter, prim arily cultural, dim ension o f the law and its sym bols. S uch a study is not even in its infancy in C anada, but w ere it so it could shed m uch light on the legislation regarding Indians.

II T his volum e presents a selection o f historically im portant o r histori­ cally illustrative legal docum ents bearing on the legal position o f Indians in C anadian society. T hey are divided into four m ajor categories, the definition o f w hich is som ew hat arbitrary, but w hich are o f use to us here in identifying prom inent issues and historical trends.

Section A: T he Early British C olonial P eriod , 1760-1826 T his section consists o f proclam ations, governm ent instructions, and international treaties o r agreem ents w hich represent (a) unilateral enactm ents by colonial pow ers regarding Indian m atters; and (b) trans­ actions betw een colonial pow ers w hich place the Indians “ off-stage” as a passive third party, but w hich have been crucial in determ ining the future course o f legal and social interaction with Indians. A lready here one sees the em ergence o f a pattern o f relations w hich has tended to dom inate the history o f dealings with Indians in C anada— nam ely that the bulk o f legislation, litigation, and politicolegal process o v er Indian m atters has been betw een colonial govern­ m ents, governm ent ju risd ictio n s (e. g. Federal/P rovincial after C on­ federation), o r betw een private groups such as businesses o r m issionary organizations. T here is nothing new in all this. It is a legacy o f colonial regim es everyw here. But sociologically it is a parade exam ple o f one of the classic structures o f conflict situations as described by S im m e l.2 T his style o f conflict theory has not yet been applied to the C anadian Indian situation. It is worth pursuing. A m ong the principal issues reflected in this section are the follow ­ ing.

IN TR O D U C T IO N

XV

C learly im plicit, som etim es very explicit, in these docum ents is the concept that Indians constituted separate and sovereign peoples subject to their own law , w ho were capable as nations and tribes o f form ing and breaking alliances w ith colonial pow ers, and who had national o r tribal territories under their control. Yet this sovereignty w as not w ithout substantial qualifications since the beginning o f B ritish C olonial rule, and w as virtually com pletely eroded by 1826. W hile sovereign pow ers in their ow n right in m any respects, Indian tribes and nations were nevertheless “ under Royal pro tectio n ’’, a position broadly analogous to the Protectorates under indirect rule in late B ritish colonial policy in A frica. Being “ under protection” m eant that dom estic legal arrange­ m ents w ere the concern o f Indians them selves, but foreign policy regarding the B ritish and other colonial pow ers w as under British control. T he Indians w ere not considered to constitute a single pow erful entity, but were constantly referred to as “ the several nations and trib e s” . U nder early colonial rule they em erge as a num ber o f m inor, fragm ented, quasi-autonom ous units with no precisely defined socio­ political boundaries— a vulnerable position indeed vis-a-vis colonial pow ers. A fter 1763 there w ere repeated dem ands by the colonial adm inis­ tration for a system atic listing o f the nations and tribes “ under protec­ tio n ” , fo r estim ates o f their population num bers, for delineation o f the territories occupied by them . T here w ere also requests for details “ o f the m anner o f their lives, and the R ules and C onstitutions, by which they are governed o r reg u lated ” (A . 3 , item 61). Instructions for adm inistering Indian m atters are issued w hich attem pt to be responsive to the inform ation gathered about the Indian groups. W hile Indians w ere considered to have absolute title in land and territo ry , which could not be perm anently occupied by settlers without Royal perm ission and purchase from the Indians, Indian territory was progressively eroded by e. g. the H udson’s B ay C harter and the apparently constant ignoring by settlers o f the official policy recogniz­ ing Indian title. Indian title is repeatedly reasserted in the face o f Indians being “ m olested and distu rb ed ” in their possession o f territory (c f.A .2 ). S ettlem ent on lands still under Indian title is strictly forbid­ den. T his reflects a prim e principle o f British colonial policy: sovereign nations and tribes (even “ under protection and d om inion” ) held sovereign territories. Yet this principle had im portant qualifications, too, w hich facilitated the erosion o f Indian control. M issionaries and fur-traders under Royal perm ission and licence w ere to be adm itted to Indian territories. A uthority was reserved for C row n agents to seize and apprehend in these territories fugitives from B ritish ju stice who had com m itted crim es w ithin non-Indian territory. T he sale and traffic o f

XVi

C A N A D IA N IND IA NS A N D T H E LA W

intoxicants in Indian territories w as forbidden. N on-Indians com m it­ ting crim inal and civil offenses w ithin Indian territory w ere to be tried before B ritish courts— that is, they w ere not subject to Indian legal process. O ffenses betw een Indians, w ithin either British o r Indian territory, w ere not considered fully subject to British legal process until 1826 (cf. A. 10). In 1826 the first w arrant for execution o f an Indian w as issued. T he Indian in question had m urdered another Indian in broad daylight in the streets o f A m herstburg. But the im portant decision taken in this case cam e only after extensive discussion betw een the local and Im per­ ial pow ers. It m arks a crucial turning point in C anadian Indian legal history (cf. A .1 0 a ,b ,c ). H enceforth Indians w ere to be subject to B ritish and C anadian law . Erosion o f Indian sovereignty w as now w ell-nigh com plete. Until 1826, B ritish policy in these m atters differed m arkedly from the previous French regim e. French colonial authorities considered Indians fully subject to French civil and crim inal law. French Indian legislation has not received nearly enough sociological attention. It is a field for m uch fruitful research. Until the A m erican R evolution, Indians in w hat is now C anada w ere subject to an Indian A ffairs adm inistration located in w hat is now up-state New Y ork. T here, Indian adm inistration w as effectively con­ trolled by m ilitary authorities. A fter the A m erican R evolution there w as intense discussion in C anada w hether Indians should be adm inis­ tered by civil rather than m ilitary authority (A. 8 a ,b ,c). T he decision that the civil adm inistration m u st be the controlling agency w as issued by Royal Instruction in 1796. Full control by civil authorities, how ­ ever, w as only achieved by about 1845. In the U nited States Indians continued under m ilitary adm inistration. T he social im plications o f this contrast in policy are not yet fully understood, and this is another fruitful field for future research. W hile there is a good deal o f m yth in the idea o f C anadian “ peaceful penetration” o f Indian territory, the situation in C anada does contrast w ith the bloody and legendary events o f A m erican Indian history (e.g . the C uster A ffair, the handling o f the Sioux outbreaks, and the m ilitary pacification o f the A m erican South­ w est). T here has been too ready a tendency to analogize superficially the C anadian and A m erican situation.

Section B: P reC on federation L egislation , 1663-1916 T his section co nsists o f a selection o f legislative docum ents enacted by the various colonial regim es, crow n colonies, and provinces until their

IN TR O D U C T IO N

XVii

entry into C onfederation (or, in the case o f the French regim e, until the so-called conquest). T he French regim e3 from early tim es considered itself authorized to legislate regarding relations both betw een Indians and non-Indians and betw een Indians them selves. T his, as we have noted, contrasts with early B ritish policy. L egislation interdicting the traffic o f intoxi­ cants w ith Indians, so prom inent a feature o f Indian policy in C anada until the 1950’s, is already well established ( B .I , B .3 , B .4). Indians are considered subject to French crim inal law (B .2 ). Indian slaves, m ostly taken by capture or purchase from groups in the M ississippi R iver valley, are subject to French colonial law (B .5). Pre-C onfederation British legislation continues the interdiction o f alcohol (e .g . B .6 , B .1 0 , B .18). L egislation is recurrently enacted to reassert Indian land title (e.g . B .7 to B .13). Indian rights o f usufruct over unoccupied lands are affirm ed. At least lim ited Indian subsurface rights are recognized (B .8 , Section V). L egislation defining “ Indian S ta tu s’’, a prom inent feature o f Post-C onfederation enactm ents, begins to appear (B .1 0 , B. 12). L ands for the use o f Indians, foreshadow ing the reserve system o f later treaties and Indian p olicy, appear as early as 1829 (B .7 ). P rovision is m ade for Indians to choose for the “ rem oval o f all legal distin ctio n s’’ (enfranchisem ent) by 1857 (B. 15). The principal elem ents o f Indian policy, which will later be consolidated w ithout any m ajor m odification in the P ost-C onfederation Indian A c t, are by now well established. O f considerable im portance, although their social im plications have never been fully analyzed, are a num ber o f item s o f legislation representing w hat we m ay call the “ moral p rem ise” o f m uch o f C an ad a’s Indian policy. T his “ m oral p re m ise " takes a variety o f form s, but in general term s it states that Indians w ho choose to live an Indian style o f life are to be considered “ unciv ilized ” (cf. B. 15, B. 17). T hey are therefore culturally and m orally different from o th er British subjects, and therefore require special legislation, am ong oth er things, for (a) their protection from (particularly unscrupulous) others, (b) for the restraint o f moral vices, and (c) to regulate th eir passage from an “ unciv ilized ” to a “ c iv ilized ” state. T his prem ise clearly underlies the long-established proscription o f the use o f alcohol by Indians. It under­ lies the recurrent questioning o f the acceptability o f testim ony given under oath by Indians (e.g . B. 17). It underlies the legal proscription o f the potlatch, the Sun D ance, and certain other cerem onials as heathen and w asteful. (L aviolette4 has an extended discussion o f these m atters.) It underlies, too, the insistence fo r a tim e that Indians should be e ncouraged to develop “ agriculture and o th er civilizing p u rsu its” (B .1 2 , section v m ) as a m eans o f m oving them m ore quickly from

X V iii

C A N A D IA N IN D IA N S A N D T H E LAW

barbarism to civilization. T o o , in o rder to apply for enfranchisem ent in 1957 (B .15, section in ) an Indian m ust be . . . o f the m ale se x , and not under tw enty-one years o f age . . . able to speak, read and write either the E nglish o r the French language readily and w ell, and . . . sufficiently advanced in the elem entary branches o f education . . . and o f good m oral character and free from debt. . . . O ne w onders how m any non-Indian C anadians o f the period w ho were presum ably “ c iv ilized ’ ’ possessed these qualities in order to qualify for full civil rights. It is far too easy and superficial to dism iss these m atters as racism . But they identify a prem ise o f inequality in C anadian society w hich has had profound consequences for stratification. T he early legislation on qualifications for enfranchisem ent continues throughout the PostC onfederation Indian A cts. In Pre-C onfederation tim es the Indian land question develops quickly and in a very com plex fashion. Q uite early (cf. B .9) lands appropriated for the occupation, benefit, and use o f Indians are not considered to be under Indian title. T hey are held in perpetual trust by the C row n. Several corollaries o f considerable social im portance de­ rive from this, for since Indians do not have title in these lands: (a) they are not subject to land taxes on them (c f.B .1 0 , section iv); (b) the land m ay not be leased by Indians, nor m ay these lands be seized in a lien for non-paym ent o f debts (cf. B .10, section in ); ' (c) incom e from rents, leases, o r utilization o f the land’s resources m ust be received and adm inistered by a Crow n agent for the collective benefits o f Indians (B .9 , section in); (d) Indians may not enter into contracts for the purchase or sale o f these lands w ithout perm ission from the C row n (B .10, section I). It is exactly around the issue o f land held in trust and the m anage­ m ent o f equity in its benefits that the backbone o f Indian adm inistration has developed since the A c t o f U nion. T he question o f land and its adm inistration has becom e so basic that it has becom e a key elem ent in defining “ W ho is an Indian” (cf. e .g . B .9, B .1 0 , B. 12). L and and “ Indian identity” are intim ately linked, as m uch a consequence o f C anadian policy as the persistence o f aboriginal sentim ents o f affinity w ith the land. T his question is also a basic one for the M etis and

IN TR O D U C T IO N

xix

“ non-status Indian” problem , and has been since long before the Riel R ebellions. It cannot be ignored socially, politically, o r legally. Its sociological consequences are deep and com prehensive for Indians in C anadian society. S ince the early colonial period with its m odicum o f sovereignty for Indians, the period especially since 1845 saw a progressive d e ­ velopm ent o f the status o f Indians as one o f “ w ardship” . T he term “ w ardship” is one w hich C anadian officials have been hesitant to use, although som e have designated it as a policy o f “ guard ian sh ip ” 4. It accorded Indians a special and unique position in C anadian society, both constitutionally and legally5 and also in a b ro ad er social sense. T he shaping o f the policy in Pre-C onfederation tim es determ ined m any o f the m ain lines o f Post-C onfederation legislation. L aviolette6 sees the w ardship policy em erging from the early colonial period w ith three m ajor com ponents. First there is a system o f land reserves set aside in C row n trust for the exclusive use o f Indians assigned to them . T his entailed the d e­ velopm ent o f a com plex Indian A ffairs adm inistration around the adm inistration o f the land and equity in its benefits, with the delegation o f only m inor decision-m aking pow ers to Indian bands. S econdly, the concept o f w ardship envisages a rather high degree o f Indian self-sufficiency and self-support based on the land and its benefits. H ence agriculture is encouraged, and the Indians are given for collective benefit incom e accruing from surface and subsurface re ­ source use. T his policy appears to have intended a curtailm ent o f Indian d ependence on facilities and resources external to the bands and their lands. O nly in later years did a general-governm ent policy o f indi­ vidualized social w elfare through statutory paym ents and health pro­ gram m es begin to alter appreciably the self-support policy. T hirdly, w ardship necessitates a clear legal concept o f “ Indian S ta tu s” . Legal rights and obligations differed for Indians and nonIndians. Indian status w as not one o f full C anadian citizenship, but it w as not the m anifest intent o f policy to perpetuate this situation indefi­ nitely. T hrough e ducation, and to som e degree by C hristianization, as well as curtailm ent o f aboriginal subsistence patterns by encourage­ m ent to develop agriculture, it w as hoped to “ c iv iliz e ” the Indian population gradually. T hen Indians w ould enjoy full civil rights: the vote, the right to consum e alcohol, the right to hold land in fee sim ple, the obligation to pay land taxes, etc. T he enfranchisem ent legislation (e.g . B .15) clearly expresses an optim ism for the gradual assum ption by Indians o f full citizenship— but history has show n the reality to be o therw ise. E nfranchisem ent policy undergoes a degree o f continual developm ent, so that in the last m ajor revision o f the Indian A c t (1951) provision w as m ade for the enfranchisem ent o f w hole bands and their

XX

C A N A D IA N IN D IA N S A N D T H E LAW

conversion into local m unicipalities. In fact, this has occurred in only a few cases. E nfranchisem ent policy has certain affinities w ith other colonial policies, such as the evo lu e concept w hich has enjoyed such notoriety in A frica. U nderstanding the social im plications o f w ardship requires a penetrating analysis o f m uch m ore than a selection o f legislative do cu ­ m ents, but these help to define a d istinctive o rder o f social relations in G anada. In w ardship, Indians w ere subject to a “ plu ralistic” relationship with o th er C anadians. By “ p lu ralism ” I do not intend the concept as applied by A m erican political scientists to describe social system s in w hich there is . . . a balance o f pow er am ong overlapping econom ic, religious, ethnic, and geographical groupings. Each “ g ro u p ” has som e voice in shaping socially binding decisions; each constrains and is constrained through the process o f m utual group adjustm ent; and all m ajor groups share a broad system o f beliefs and values w hich encourages conflict to proceed w ithin established channels and allow s initial disagreem ents to dissolve into com prom ise so lu tio n s.7 M any equate such situations w ith the ideal realization o f liberal d em o cracy ,8 and find that . . . pluralism o f institutions, conflict patterns, gro u p in g s, and interests m akes for a lively, colorful, and creative scene o f politi­ cal conflict w hich provides an opportunity for success o f every interest that is v oiced.9 T he concept o f pluralism as used in anthropology differs consider­ ably from this position. H ere it denotes social system s w hich contain culturally and socially differentiated societal sections w hich are hierar­ chically arranged in a system o f stratification and are “ integrate'd” not by the m em bers o f the sections sharing com m on basic values but by regulation o f inter-sectional relations by authority and pow er exercised by dom inant s e c tio n s.10 Legal o r constitutional definition and recogni­ tion o f sections in a plural society are im portant elem ents in regulating and m aintaining the characteristic social cleavages and hierarchical arrangem ents o f such an order. O ne perhaps cannot properly charac­ terize C anadian society as a w hole as a plural society. It is perhaps more appropriate to describe the quality o f the relationships betw een certain sections o f C anadian society as highly pluralistic (e .g . E nglish/F rench, Indian/non-Indian). Each set o f pluralistic relationships will be distinc­

IN T R O D U C T IO N

XXi

tive. French/E nglish and Indian/non-Indian relations in C anada are both intensely p luralistic, but differ considerably in detail. Since such relationships constitute a special though variable type w hich have specific historical outcom es for stratification, sectional political e n ­ tities, the developm ent o f characteristic m odes o f inter-sectional con­ flict, e tc ., it w ould be well to look carefully at Indian/non-lndian relations over a long historical tim e-span (focusing especially on legal events and such phenom ena as w ardship) with the aid o f this historical fram ew ork. T his m ust be done at a societal level. A pplication o f the fram ew ork w ithin sm all regional areas, as 1 have done in som e o f my ow n w o r k ," is sim ply inadequate to understanding this im portant feature o f C anadian policy and social practice regarding Indians.

Section C : T he B ritish N orth A m erica A ct, T he Indian A cts, and A llied D ocum ents T his section contains selections from the B .N .A . A ct and its allied docum ents as they bear on Indians. T he m ajor revisions o f the Indian A ct, w hich derives its authority from the B .N .A . A ct, are given in full. Section 91 o f the B .N .A . A ct ( C .l) places Indians, the only nam ed group other than “ a lien s” , indisputably under Federal ju risd ic ­ tion. T his section includes m atters w hich are “ o f national im portance and have attained such dim ensions as to affect the body politic o f the D o m in io n .” 12 A s with other m atters covered by Section 91 (Federal jurisd ictio n ) and Section 92 (Provincial jurisd ictio n ) there has been considerable Federal-Provincial disagreem ent and differences o f in­ terpretation since C onfederation. Perhaps this is as it should be. C o n ­ tinual inter-jurisdictional dialogue m ust be m aintained in order to readjust continually the delicate and dynam ic balances and accom m o­ dations required to m aintain a Federal union o f this kind. H ow ever, this process has tended to place Indians “ o ff-stag e” to m any o f the princi­ pal Federal-Provincial disputes concerning them . It has been a rela­ tively pow erless position for Indians. O ne need not look far for ex am ­ ples. C lause 13 o f the 1871 O rder-in-C ouncil adm itting British C olum ­ bia into the U nion (C .6 ) stipulated that the charge o f Indians and Indian lands w ould be a Federal G overnm ent responsibility, and the Federal G overnm ent pledged to follow a policy “ as liberal as that hitherto pursued by the British C olum bia g o v e rn m e n t.” L av io lette13 argues that the effect o f this clause (and the events rising from it) w as that . . . the Indian w as denied the opportunity to share or participate in the appreciation o f land values as a result o f settlem ent. W hite

x x ii

C A N A D IA N IND IA NS A N D T H E LA W

rnqn could pre-em pt 320 acres and purchase as m any m ore. Som e Indians were assigned as little as nine acres, alm ost none were acquainted with pre-em ption law s, and in any case few had the necessary capital for purchasing land. In a different perspective, it could be said that again the w hite man visualized no future fo r the Indian. Less than tw o years later, a D om inion O rder-in-C ouncil o f M arch 21, 1873 recom m ended that the provincial governm ent assign eighty acres o f land to every Indian fam ily o f five persons. T he provincial governm ent refused to follow this recom m endation and suggested that tw enty acres for each fam ily o f five w as m ore appropriate. In 1874 the Indians began a long series o f protest petitions to the Federal G overn­ m ent. N ow there w as a three-w ay deadlock betw een the tw o levels o f governm ent and Indian protest groups. O ut o f this deadlock eventually c am e, in 1887, a jo in t Federal-Provincial Royal C om m ission assigned to review the issues. T his com m ission sat doggedly for nearly tw enty y ears, riddled with internal dissension, and caught betw een opposing policies. Its report in four volum es was published in 1 9 1 6 .14 It was during this period that the British C olum bia G overnm ent took the unprecedented m ove o f appointing an Indian C om m issioner for the province, despite the stipulation o f Section 91 o f the B .N .A . A ct that Indian m atters were under Federal jurisdiction. A nother m ajor source o f difficulty betw een the governm ent of British C olum bia and the D om inion w as the issue o f “ reversionary in te re s t" in Indian lands. Im perial policy had assum ed Indian lands as vested in the C row n. T he G overnm ent o f B ritish C olum bia, how ever, insisted that the title o f alienated Indian lands m ust revert to the province. In a D om inion O rder-in-C ouncil o f N ovem ber 5, 1875, the Federal G overnm ent recognized the provincial reversionary interest. N ow in addition to Indian anxiety about acreage and location o f lands precipitated by Clause 13 o f the O rder adm itting B ritish C olum bia to the U nion, Indians w ere faced w ith the additional problem o f having any lands they m ight seek to alienate revert to a governm ent whose Indian policies they already opposed. Policy disagreem ent betw een levels o f governm ent since C onfed­ eration varies considerably by the region involved. T hese disagree­ m ents have been one im portant factor in the w hole com plex o f issues w hich have helped to retard the settlem ent o f Indian land claim s. T here w ere serious problem s regarding Indian lands betw een the govern­ m ents o f O ntario and the D om inion (cf. C .l 1). R eferences to Indian lands in the M anitoba and S askatchew an N atural R esources Acts (C . 12. C. 14) and the R ailw ay B elt a n d P eace R iver B lock A ct (C. 13) are potential sources o f difficulty in the sam e vein.

IN TR O D U C T IO N

x x iii

T he m ajor revisions o f the Indian A ct and their im m ediate con­ geners in previous C onfederation legislation are presented here in their entirety in order to facilitate com parison for the reader. W hile there is considerable repetition betw een them , there are subtle shifts o f em ­ phasis in policy reflected throughout, often dependent on the placing o f a preposition o r phrase. N early any selective procedure w ould serve to o bscure these. A bove all, the Indian A cts are unique am ong C anadian statutes. T hey are am ong the largest and lengthiest pieces o f legislation and are consequently o f considerable com plexity; they function as a repository for policies derived from long historical trends in C anadian society; and finally, they undertake to circum scribe and direct on a com prehensive basis virtually every feature o f Indian social life in C anada. In the years im m ediately follow ing the B .N .A . Act o f 1867, Indian m atters continued to be regulated by Pre-C onfederation L egisla­ tion with the addition o f a series o f statutes largely focused on adm inis­ trative procedures required to adm inister them in the context o f C on­ federation. In the nine years betw een the B .N .A . A ct (1867) and the first Indian A ct (1876), no basic new social policies were introduced except for som e further definition o f band councils and their legislative responsibilities (C .3 , sections 10-12); it w as essentially a period o f adm inistrative housekeeping. Indians were now the principal statutory responsibility o f the Secretary o f State, and the basis for the pattern o f Indian A ffairs adm inistration w hich has essentially continued to the present tim e is now com plete. T he first Indian A ct (1876) (cf. C .8 ) has the full title A n A ct to A m e n d a n d C onsolidate the L a w s R especting In d ia n s. Indeed the em phasis is on consolidation; m ost o f the am endm ents involved sim ply serve to integrate and m ake consistent legislative m aterial covering a considerable tim e-span enacted by a variety o f legislative bodies. A m ajor revision o f the Indian A ct in 1880 (C .10) m ade very ex plicit som e o f the policies w hich w e have already identified as the “ m oral p rem ise” in C anadian Indian legal history. In addition to elaborating the sections dealing w ith intoxicants, tw o lengthy sections (9 5 , 96) concerning sexual prom iscuity and prostitution are introduced. It w as under the Indian A ct (1880) that attem pts w ere eventually m ade to suppress the potlatch, spirit-dancing, and other cerem onies. It was only with the revision o f the Indian A ct in 1951 (C. 15) that these were no longer legally proscribed. H ere w e may see the classic “ pater­ nalism ” o f w hich C anadian Indian policy has so often been accused. W hile intended to “ pro tect” Indians, it can readily be argued that curtailm ent o f civil liberties w as involved. Som ething o f the sam e may be seen in S ections 32 and 33 o f the Indian A ct (1951). T o prevent exploitation o f Indians farm ing in the prairies provinces, Indians were

XXIV

T A B L E 1: Location o f P rincipal Issu es in the Indian A cts o f 1876, 1880, and 1951, and th eir P reced en ts in o th e r L egislation .

1876 (C.8)

99-107

109-113

B.15, C .2, C.3

LAW

3.5, 86-94

B.9, B .12, B.15, B .16, C .2, C .3, C .l

THE

E nfranchisem ent

Sections Sections 2, 11-14. 75-80, 5-17, 42-45, 48-50, 81-89 87-90, 103-108

Sample o f Precedents*

AND

Sections 3.3-3.5, 64-73

1951 (C.15)

Reserve Lands

4-22

15-43

18-31, 35-36, 124

B.8, B.9, B.10. B. 13. B. 16. C .2, C.3

M anagem ent. Sale. L ease o f L ands

25-44

46-55

37-41, 53-60, 124

B.8, B.9, B.10. B. 16, C .2, C.3

M anagem ent. Sale. L ease o f R esources

45-57

27, 56-71

32-33, 71, 93

B.8, B.9, B.10, C .2, C.3

Intoxicants Band Structure and Pow ers Adm issibility of Indian Evidence U nder Oath

79-85

79. 90-94

94-102

B .l, B.3, B.4. B.6, B.16, B. 18, C .2, C .3, C .l

23-24, 58-60 61-73

72-74

34. 61-69, 74-86

C .2, C.3

74-78

85-89

*R eference num bers are to item s included in this volum e.

INDIANS

Indian “ S ta tu s”

1880 (C.10)

CANADIAN

Indian Acts Topic

B.17, C .l

IN TR O D U C T IO N

XXV

not allow ed to sell farm stock o r produce to non-Indians w ithout prior w ritten consent o f the Indian S uperintendent. T he effect w as to prevent Indians from taking best advantage o f agricultural m arkets open to other prairie farm ers. T hese sections have since been repealed. C er­ tainly, too, the proscription o f intoxicants can well be argued to have curtailed Indian civil liberties. T his has been argued before C anadian courts. T he Indian A ct w as, and is, constantly being revised. It is not possible here to exam ine all o f these revisions, let alone exam ine the Indian A cts them selves w ith the attention they deserve. T able 1 indi­ cates som e o f the principal topics covered by the various Indian A cts and indicates som e o f their historical sources in preceding legislation. C onsiderable continuity will be noted since the union o f U pper and L ow er C anada. H ow ever, several trends o f change may be noted briefly: 1.

2.

3.

4.

T he question o f Indiah “ sta tu s” becom es progressively more elaborate and precise. It bears close affinity to the question o f land, band organization, and participation in band equity accruing from land and resource sales and leases. L egislation to facilitate both individual and band e nfranch­ isem ent becom es progressively elaborated and detailed. T hese m ust be considered in any study o f “ assim ilatio n ” and “ integration” policies. T he structure o f band councils and th eir responsibilities are .progressively refined, and progressively m ore responsibility and pow er is handed o v er to local bands. L egislation reflecting th e “ m oral p rem ise” reaches a peak in the Indian A c t (1880); w ith the exception o f legislation on intoxication, other issues (e.g . prostitution, potlatch and spirit-dancing, and the adm issibility o f Indian evidence under oath in courts o f law ) are rapidly attenuated in the legislation since.

Section D: In dian “ T rea ties” T he question o f “ Indian treaties” is extrem ely com plex, not least because the w ords are used to denote docum ents o f several distinctive kinds. O nly a few exam ples o f “ treaties” are given h ere, but in them m ay be found m ost o f the key features (and their variations) o f this kind o f docum ent. T he “ Selkirk T reaty ” o f 1817 (D . 1) is sim plest in structure, and is sim ilar to m any previous North A m erican treaties. It is clearly a bill o f

XXVi

C A N A D IA N IN D IA N S A N D T H E L A W

surrender o f a specified tract o f land in return for an annual quit-rent paym ent. O ne m ay easily question the ju stic e o f the quit-rent consisting o f tw o hundred pounds o f tobacco p e r a n n u m . M uch m ore im portant in a structural sense is the decision to pay a quit-rent rather than a full purchase price over a specific period o f tim e. Q uit-rents o r annual “ presents” o r paym ents are a com m on feature o f Indian treaties since earliest tim es. Since the am ounts are usually fixed by agreem ent, they are not responsive to econom ic inflation and changing values, and have been a continuous source o f grievance for Indians. For ex am p le, Treaty N um ber Eleven (1921) grants an annual paym ent o f “ equipm ent, such a s tw ine for nets, am m unition and trapping [sic] to the value o f three dollars per head to each Indian who continues to follow the vocation o f hunting, fishing and trap p in g ” (D .4 ). In 1921, three dollars purchased a considerable am ount o f such com m odities. T oday, it purchases less than one-quarter o f a standard fish net. G rievances o v er such arrange­ m ents cannot fail to becom e a chronic source o f discontent, for they are annual rem inders in perpetuity o f perceived injustices. The “ R obinson S uperior T rea ty ” o f 1850, im portant as a m odel for Post-C onfederation treaties, is a d irect surrender o f rights in a specified area o f land. An initial paym ent is m ade in addition to annual paym ents. U nlike the “ Selkirk T re a ty ,” the “ R obinson Superior T re a ty ” specifies that subsurface resources will be sold for the benefit o f the band as a w hole, and this only by order o f the S uperintendent-. G eneral o f the Indian D epartm ent. It also grants continuing rights o f usufruct over unsettled portions o f the ceded territory. It clearly vests the land title in the C row n. In addition, specific reserves for the exclusive use o f Indians are set aside w ithin the territory. “ T reaty N um ber O n e ” (D .3 ) o f 1871, the first o f the treaties concluded after C onfederation, is in m any w ays closely patterned on late Pre-C onfederation treaties (e.g . “ T he R obinson S uperior T re­ a ty ” ). H ow ever, it adds certain significant new elem ents. It specifies that a council o f chiefs and councillors be authorized by the Indians both to negotiate the treaty and to assist in its subsequent adm inistra­ tion. T his insistence on band structures is a prom inent feature o f the P ost-C onfederation Indian A cts and treaties. T he treaty specifically proscribes intoxicants, both w ithin and w ithout the ceded territory. L ike other P ost-C onfederation treaties, it guarantees provision o f edu­ cational facilities. O thers also guarantee at least m inim al m edical services. F inally, there are several m entions in the docum ent that the treaty is to be an agreem ent o f “ perpetual p eace” . “ T reaty N um ber E le v en ” (D .4 ), concluded in 1921-1922, one of the latest Post-C onfederation T reaties, is closely patterned on “ Treaty N um ber O n e ” . It is also o f interest since it show s clearly the m ethod by

INTR O D U CTIO N

XXVii

which local bands and groups subsequently m ade adhesion to it. It includes a m ost significant feature o f late treaties, that is the cession not only o f the rights to a specific tract o f land but also o f “ the Indian rights, titles and privileges w hatsoever to all other lands w herever situated in the Y ukon T erritory, the N orthw est T erritories o r in any other portion o f the D om inion o f C a n a d a .’’ W hile a prom ise is m ade to set aside reserve lands under this treaty, in fact the reserves have not yet been allocated. C um m ing and M ick en b erg 15 show that so-called “ Indian treaties’’ conform closely to neither o f the tw o com m on m eanings in law o f the w ord “ trea ty ” , although they com bine elem ents o f both these m eanings. In one m eaning, a “ trea ty ” denotes a com pact o r agreem ent betw een tw o o r m ore sovereign nations. In the other m ean­ ing, in private law , “ trea ty ” denotes “ th e discussion o f term s . . . im m ediately prior to the m aking o f a c o n tra c t.’’16 As C um m ing and M ickenberg show , historically and legally Indian treaties have not been recognized as having the status o f international treaties betw een tw o or m ore separate and sovereign n a tio n s.17 Yet in the list o f characteristics we give below , certain features o f Indian treaties clearly evince ele­ m ents o f international treaties. In certain situations, on the o th er hand, ju d icial decisions have recognized the analogy betw een Indian treaties and private agreem ents, “ offers to treat” , and c o n tra c ts.18 In our view , the fully-developed “ Indian trea ty ” in C anada con­ sists o f som e or all o f at least the follow ing elem ents o r characteristics: 1. an agreem ent o f peace and am ity: 2. the cession o f land, both as specific tracts o r as rights to all lands in the D om inion; 3. initial paym ents to Indians, either to each individual “ taking trea ty ” o r to bands as corporate bodies; 4. the designation o f chiefs and councillors to negotiate the treaty, and to assist in its subsequent adm inistration; 5. sm all annual paym ents in cash an d /o r goods variously d e ­ scribed as quit-rents, presents, o r gifts (these derive histori­ cally, at least in part, from the practice o f m aking annual gifts o f “ grace and favour” o r “ bounty and b enevolence” , a prom inent feature o f Indian/non-Indian relations in early contact tim es in N orth A m erica); 6 . guarantee o f rights o f usufruct o v er unoccupied territories, either o r both w ithin o r w ithout tracts ceded in treaties; 7. guarantee o f lands reserved fo r the use o f Indians; 8. prom ises to provide health , educational, o r o th er services.

X X V iii

C A N A D IA N IN D IA N S A N D T H E L A W

T hese, then, are com plex and varied docum ents. W hile the com po­ nents are inter-related, each one in itself is fertile ground for social and legal conflict. Finally, w hile these docum ents clearly reflect national policy tow ards Indians, especially w hen view ed in historical perspective, it can never be assum ed that these truly reflect the agreem ent and under­ standing o f the Indians. In com ing years, these treaties and the histori­ cal legislation to which they are related bode well to becom e burning political and legal issues. T he resolution o f these issues are m oral, political, and legal im peratives which C anadians cannot escape.

FOOTNOTES 'Georges Gurvitch, Sociology o f Law (London: Routledge and Kegan Paul, 1947). 2Georg Simmel, “ Conflict,” in Conflict and the Web o f Group Affiliations, trans. Kurt R. Wolff (Free Press, 1955), esp. pp. 13-28,35-48. Further de­ velopment of Simmel’s work on conflict may be found in Lewis H. Coser, The Functions o f Social Conflict (New York: Free Press, 1956). 3Valuable insight into French Indian policy can be found in: J.H. Kennedy, Jesuit and Savage in New France (New Haven: Yale University Press, 1950); Bruce Trigger, “ The French Presence in Huronia: The Structure of FrancoHuron Relations in the First Half of the Seventeenth Century, Canadian Histori­ cal Review, vol. x l i x (1968), pp. 107ff.; Yves Zoltvany, “ The Frontier Policy of Philippe de Rigaud de Vaudreuil, 1713-1725,” Canadian Historical Review, vol. x l v i i i (1967), pp.227ff.; G.F.G. Stanley, “ The Policy o f ‘Francisation' as Applied to the Indians during the Ancien Regime,: Revue d'Histoire de I'Amerique Francois, vol. 3 (1949), pp. 333ff.; G.F.G. Stanley, “ The First Indian ‘Reserves’ in Canada," Revue d'Histoire de I'Amerique Francaise, vol. 4 (1950), pp. 169ff.; Peter A. Cumming and Neil H. Mickenberg, Native Rights in Canada (2nd. ed.) (Toronto: The Indian-Eskimo Association of Canada and General Publishing Co. Ltd., 1972), esp. Ch. 11, pp.75-91. 4F.E. La''iolette, The Struggle fo r Survival (Toronto: University of Toronto Press, 1961), esp. Ch’s 2 and 3. 5Kenneth Lysyk, “ The Unique Constitutional Position o f the Canadian Indian,” Canadian Bar Review, vol. 45 (1967), pp.513-553. 6F.E. Laviolette, op. cit., pp. 14-15. 7W.E. Connolly (ed.). The Bias o f Pluralism (New York: Atherton, 1969), p.3.

8Raymond Aron, “ Social Structure and the Ruling Class,” British Journal o f Sociology, vol. 1 (1950), pp. 1-16; Edward A. Shils, The Torment o f Secrecy (London: Heinemann, 1956), pp.55ff., 207; W.Komhauser, The Politics o f Mass Society (London: Routledge and Kegan Paul, 1960), p. 104. 9Ralf Dahrendorf, Class and Class Conflict in Industrial Society (Stanford: Stanford University Press, 1959), p.317.

XXIX

INTR O D U CTIO N

Furnivall, Colonial Policy and Practice (London: Cambridge Univer­ sity Press, 1948); Leo Kuper and M .G. Smith, Pluralism in Africa, (Berkeley: University of California Press, 1969); M. G. Smith, The Plural Society in the British West Indies (Berkeley: University of California Press, 1965). 1'Derek G. Smith, Natives and Outsiders: Pluralism in the Mackenzie River Delta, unpub. Ph.D. dissertation, Harvard University, 1971; “ The Implications of Pluralism for Social Change Programs in a Canadian Arctic Community," Anthropologica, n.s.,vol. xiii, No’s. 1-2 (1971), pp. 193-214. 12Bora Laskin, Canadian Constitutional Law, 4th. rev. ed. (Toronto: Cars­ well, 1973), p. 119. I3F.E. Laviolette, op .cit., pp. 111-112. ,4Report o f the Royal Commission on Indian Affairs fo r the Province o f British Columbia, 4 vols. (Victoria: Acme Press, 1916). l5Peter A. Cumming and Neil H. Mickenberg, op .cit., esp. Ch.9, pp.53-62 (’’The Legal Nature o f Indian Treaties” ) l6Peter A. Cumming and Neil H. Mickenberg, op.cit., p.54. 17Peter A.Cumming and Neil H. Mickenberg, h e . cit. l8Peter A. Cumming and Neil H. Mickenberg, op.cit., p.56.

Section A The Early British Colonial Period, 1760-1826 A l. A rticles o f C apitulation B etw een their E xcellencies M ajor-G eneral A m herst, C om m a n d er-in -C h ief o f his B rittanic M a jesty ’s Troops a n d F orces in N orth A m erica , on the O ne Part, a n d the M arquis de V audreuil, G overnor a n d L ieutenant-G eneral f o r the King in C anada on the O ther. M ontreal, Se p te m b e r 8. 1760. (E xtracts) * * *

A rticle VIII. T he O fficers, Soldiers, M ilitia, S eam en and even the Indians, detained on account o f their w ounds o r sickness, as well as in the hospital, as in private houses, shall enjoy the privileges o f the c artel, and be treated accordingly.— “ T he sick and w ounded shall be treated the sam e as our ow n p e o p le .” A rticle IX T he British G eneral shall engage to send back, to their ow n hom es, the Indians, and M oraignans, who m ake part o f his arm ies, im m ediately after the signing o f the present c apitulation, and, in the m ean tim e, the better to prevent all disorders on the part o f those w ho m ay not be gone aw ay, the said G enerals shall give safe-guards to such persons as shall desire th em , as well in the tow n as in the country. “ T he first part re fu sed .” — There' “ never have been any cruelties com m itted by the Indians o f o u r arm y: “ and good o rder shall be p re serv e d .” *

*

*

A rticle X L T he Savages o r Indian allies o f his m ost C hristian M ajesty, shall be

I

2

C A N A D IA N IN D IA N S A N D T H E LA W

m aintained in the Lands they inhabit; if they ch u se to rem ain th ere ; they shall not be m olested on any pretence w hatsoever, for having carried arm s, and served his m ost C hristian M ajesty; they shall hav e, as well as the French, liberty o f religion, and shall keep their m issionaries. T he actual V icars G eneral, and the B ishop, w hen the Episcopal see shall be filled, shall have leave to send to them new M issionaries w hen they shall ju d g e it necessary.— “ G ranted except the last article, w hich has been already re fu s e d .” * * *

A rticle X LV II T he N egroes and panis o f both sexes shall rem ain, in their quality o f slaves, in the possession o f the French and C anadians to w hom they belong; they shall be at liberty to keep them in their service in the' colony or to sell them ; and they m ay also continue to bring them up in the R om an R eligion— “ G ranted, except those who shall have been m ade p riso n e rs.”

A 2. R o ya l P roclam ation, O ctober 7, 1763. (E xtract) * * *

A nd w hereas it is ju st and reasonable, and essential to our Interest, and the Security o f our C olonies, that the several N ations o r Tribes o f Indians with w hom W e are connected, and who live under our P rotection, should not be m olested or disturbed in the Possession o f such Parts o f our D om inions and T erritories as, not having been ceded to o r purchased by U s, are reserved to them , o r any o f them , as their H unting G rounds.— W e do therefore, with the A dvice o f o u r Privy C o u n c il, declare it to be o u r R oyal W ill and Pleasure, that no G overnor o r C om m ander in C h ief in any o f o u r C olonies o f Q uebec, E ast F lorida, o r W est F lorida, do presum e, upon any Pretence w hatever, to grant W arrants o f Survey, o r pass any Patents for L ands beyond the B ounds o f their respective G overn­ m ents, as described in their C om m issions; as also that no G overnor o r C om m ander in C h ief in any o f o u r o th er C olonies o r Plantations in A m erica do presum e for the present, and until o u r further Pleasure be know n, to grant W arrants o f Survey, o r pass Patents for any L ands beyond the H eads or Sources o f any o f the Rivers w hich fall into the A tlantic O cean from the W est and N orth W est, o r upon any L ands w hatever, w hich, not having been ceded to o r

E A R L Y B R IT ISH C O L O N I A L PE R IO D

3

purchased by Us as aforesaid, are reserved to the said Indians, o r any of them . A nd, W e do further declare it to be O ur Royal W ill and Pleasure, for the present as aforesaid, to reserve under o u r S overeignty, Protec­ tion , and D om inion, for the use o f the said Indians, all the L ands and T erritories not included w ithin the Lim its o f O ur said T hree new G overnm ents, o r w ithin the Lim its o f the T erritory granted to the H u d so n 's Bay C om pany, as also all the L ands and T erritories lying to the W estw ard o f the Sources o f the R ivers which fall into the Sea from the W est and N orth W est as aforesaid; And W e do hereby strictly forbid, on Pain o f o u r D ispleasure, all o u r loving S ubjects from m aking any Purchases o r Settlem ents w hat­ e v er, o r taking Possession o f any o f the L ands above reserved, w ithout o u r especial leave and L icence for that Purpose first obtained. A nd, W e do further strictly enjoin and require all Persons w hat­ ever who have either w ilfully o r inadvertently seated them selves upon any Lands w ithin the C ountries above described, o r upon any other Lands w hich, not having been ceded to o r purchased by Us, are still reserved to the said Indians as aforesaid, forthw ith to rem ove them ­ selves from such Settlem ents. And W hereas great Frauds and A buses have been com m itted in purchasing L ands o f the Indians, to the great Prejudice o f our Interests, and to the great D issatisfaction o f the said Indians; In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians m ay be convinced o f our Justice and determ ined R esolution to rem ove all reasonable C ause o f D iscontent, We do, w ith the A dvice of our Privy C ouncil strictly enjoin and require, that no private Person do presum e to m ake any Purchase from the said Indians o f any Lands reserved to the said Indians, w ithin those parts o f o u r C olonies w here, We have thought proper to allow Settlem ent; but that, if at any T im e any o f the said Indians should be inclined to dispose o f the said Lands, the sam e shall be Purchased only for U s, in our N am e, at som e public M eeting or A ssem bly o f the said Indians, to be held for that Purpose by the G overnor o r C om m ander in C h ief o f o u r Colony respectively w ithin w hich they shall lie; and in case they shall lie w ithin the lim its o f any Proprietary G overnm ent, they shall be purchased only for the U se and in the nam e o f such Proprietaries, conform able to such D irections and Instructions as W e o r they shall think proper to declare and enjoin, that the T rade with the said Indians shall be free and open to all our Subjects w hatever, provided that every Person who may incline to T rade with the said Indians do take out a L icence for carrying on such T rade from the G overnor o r C om m ander in C h ief o f any o f O ur C olonies respec­ tively w here such Person shall reside, and also give Security to observe such R egulations as W e shall at any T im e think fit, by ourselves o r by

4

C A N A D IA N IND IA NS A N D T H E LA W

o u r C om m issaries to be appointed for this P urpose, to direct and appoint for the B enefit o f the said Trade: A nd we do hereby authorize, enjoin, and require the G overnors and C om m anders in C h ief o f all our C olonies respectively, as well those under O ur im m ediate G overnm ent as those under the G overn­ m ent and D irection o f Proprietaries, to grant such L icences w ithout Fee o r R ew ard, taking especial C are to insert therein a C ondition, that such L icence shall be v oid, and the Security forfeited in case the Person to w hom the sam e is granted shall refuse o r neglect to observe such R egulations as W e shall think proper to prescribe as aforesaid. And we do further expressly enjoin and require all O fficers w hat­ ever, as well M ilitary as those Em ployed in the M anagem ent and D irection o f Indian A ffairs, w ithin the T erritories reserved as aforesaid for the use o f the said Indians, to seize and apprehend all Persons w hatever, w ho standing charged with T reason, M isprisions of T reason, M urders, o r other F elonies o r M isdem eanors, shall fly from Justice and take R efuge in the said T erritory, and to send them under a proper guard to the C olony w here th e C rim e w as com m itted o f which they stand accused, in order to take their Trial for the sam e. G iven at o u r Court at S t. Ja m e s’s the 7th D ay o f O ctober 1763, in the T hird Y ear o f o u r Reign. G O D SA V E T H E KIN G

A3. Instructions to G overnor M urray, D e cem b er 7, 1763. (E xtract) * * *

60. A nd w hereas O ur Province o f Q uebec is in part inhabited and possessed by several N ations and T ribes o f Indians, with w hom it is both necessary and expedient to cultivate and m aintain a strict Friend­ ship and good C orrespondence, so that they m ay be induced by D e­ grees, not only to be good N eighbours to O ur Subjects, but likew ise them selves to becom e good S ubjects to U s; Y ou are therefore, as soon as you conveniently c an , to appoint a proper Person o r Persons to assem ble, and treat w ith the said Indians, prom ising and assuring them o f Protection and F riendship on O ur part, and delivering them such P resents, as shall be sent to you for that purpose. 61. And you are to inform y o u rself with the greatest E xactness o f the N um ber, N ature and D isposition o f the several B odies o r T ribes o f Indians, o f the m anner o f th eir L ives, and the R ules and C onstitutions, by w hich they are governed o r regulated. And You are upon no

E A R L Y B R IT ISH C O L O N IA L PE R IO D

5

A ccount to m olest or disturb them in the Possession o f such Parts o f the said Province, as they at present occupy or possess; but to use the best m eans Y ou can for conciliating their A ffections, and uniting them to O ur G overnm ent, reporting to U s, by O ur C om m issioners for Trade and Plantations, w hatever Inform ation you can collect w ith respect to these People, and the w hole o f y our P roceedings w ith them . 62. W hereas W e have, by O ur Proclam ation dated the seventh day of O cto b er in the T hird year o f O ur R eign, strictly forbid, on pain o f Our D ispleasure, all O ur S ubjects from m aking any P urchases o r S ettle­ m ents w hatever, o r taking Possession o f any o f the L ands reserved to the several N ations o f Indians, with w hom W e are connected, and who live under O ur P rotection, w ithout O ur especial Leave for that Purpose First obtained; It is O ur express W ill and P leasure, that you take the m ost effectual C are that O ur Royal D irections herein be punctually com plied w ith, and that the T rade w ith such o f the said Indians as depend upon your G overnm ent be carried on in the M anner, and under the R egulations prescribed in O ur said P roclam ation. * * *

A 4(a). Instructions to G overnor C arleton, January 3 , 1775. (E xtract) * * *

32. It is O ur Royal Intention, that the Peltry T rade o f the interior C ountry should be free and open to all O ur Subjects, Inhabitants o f any o f O ur C olonies, w ho shall, pursuant to w hat w as directed by O ur Royal Proclam ation o f 1763, obtain L icences from the G overnors o f any o f O u r said C olonies for that purpose, under penalties to observe such R egulations, as shall be m ade by O ur L egislature o f Q uebec for that purpose; T hose R egulations therefore, w hen established, m ust be m ade public throughout all O ur A m erican possessions, and they m ust have for their object the giving every possible facility to that T rade, w hich the nature o f it will adm it, and as m ay consist with fair and just dealing tow ards the S avages, w ith w hom it is carried on. T he fixing stated tim es and places for carrying on the T rade, and adjusting m odes o f settling T ariffs o f the prices o f G oods and Furs* and above all the restraining the Sale o f Spirituous L iquors to the Indians will be the m ost probable and effectual m eans o f answ ering the ends proposed. T hese and a variety o f o th er regulations, incident to the nature and purpose o f the Peltry T rade in the interior C ountry, are fully stated in a Plan proposed by O ur C om m issioners for T rade and P lantations in 1764, a

6

C A N A D IA N IN D IA N S A N D T H E LA W

copy o f w hich is hereunto annexed, and w hich will serve as a G uide in a variety o f cases, in w hich it m ay be necessary to m ake provision by L aw for that im portant B ranch o f the A m erican C om m erce. * * *

A 4(b ). P lan f o r the F uture M anagem ent o f Indian A ffairs, R eferred to in the T hirty-second A rticle o f the F oregoing Instructions to G overnor Carleton, J a n u a ry J , 1775. 1. T hat the T rad e and C om m erce with the several T ribes o f Indians in N orth A m erica under the protection o f His M ajesty shall be free and open to all H is M a jesty ’s subjects, under the several R egulations and R estrictions hereafter m entioned, so as not to interfere with the C harter to the H udson’s Bay C om pany. 2. T hat for the b etter R egulation o f this T rade, and the M anage­ m ent o f Indian A ffairs in general, the British D om inions in North A m erica be divided into tw o D istricts, to com prehend and include the several T ribes o f Indians m entioned in the annexed Lists A. and B. 3. T hat no T rade be allow ed w ith the Indians in the southern D istrict, but w ithin the T ow ns belonging to the several T ribes included in such D istrict; and that in the N orthern D istrict the T rade be fixed at so M any Posts, and in such S ituations, as shall be thought necessary. 4 . T hat all L aw s, now in Force in the several C olonies for regulat­ ing Indian A ffairs, o r C om m erce, be repealed. 5. T hat there be one general A gent o r Superintendant appointed by H is M ajesty for each D istrict. 6. T hat the A gent or S uperintendant for the N orthern District shall be allow ed three D eputies to assist him in the A dm inistration o f A ffairs w ithin his D istrict; and that the A gent o r Superintendant for the Southern D istrict shall be allow ed tw o D eputies. 7. T hat there shall be a C om m issary, Interpreter, and Sm ith, appointed by H is M ajesty to reside in the C ountry o f each T ribe in the Southern D istrict, and at each Post in the N orthern D istrict. 8. T hat it be recom m ended to the Society for the propagation o f the G ospel in foreign parts to appoint four M issionaries in each D istrict, to reside at such places, as the A gent or Superintendant for each D istrict shall recom m end. 9. T hat the C om m issaries, Interpreters, and Sm iths in each Dis­ trict do Act under the im m ediate D irection and O rders o f the A gent or

EA R L Y B R IT ISH C O L O N I A L PE R IO D

7

Superintendant, w ho shall have a pow er o f Suspending them in C ase o f M isbehaviour, a n d , in C ase o f Suspension o f a C om m issary, o r o f a V acancy by D eath, o r R esignation, the O ffice shall be executed, until the K ing’s pleasure is know n, by one o f the D eputies to the A gent o r Superintendant. 10. T hat the said A gent o r Superintendant shall have the C onduct o f all public A ffairs relative to the Indians; and that neither the C om ­ m ander in C h ief o f His M ajesty’s Forces in A m erica, nor any o f the G overnors and C om m anders in C h ief o f any o f the C olonies, o r persons having m ilitary C om m ands in any o f the Forts w ithin each o f the said D istricts, do hold any G eneral M eetings with the Indians, o r send any public T alks to them w ithout th e C oncurrence o f th e A gent o r Superin­ tendant, unless in cases o f great E xigency, o r w hen the said A gent or Superintendant m ay be in som e rem ote part o f his D istrict. 11. T hat the said A gents o r Superintendants do in all A ffairs o f political consideration, respecting peace and w ar w ith the Indians, purchases o f L ands, o r other M atters, on w hich it m ay be necessary to hold any general M eetings w ith the Indians, advise and act in concert w ith the G overnors, (or the G overnors and C ouncils, as the O ccasion m ay require), o f the several C olonies w ithin th eir respective D istricts; A nd that the said A gents o r Superintendants shall be C ouncillors extraordinary w ithin each C olony in th eir respective D istricts, in like m anner as the Surveyors G eneral o f the C ustom s fo r the N orthern and Southern D istricts o f A m erica. 12. T hat the G overnor o r C om m ander in C h ie f o f every C olony be directed to com m unicate to the A gent o r Superintendant o f that D is­ trict, w ithin w hich his G overnm ent lyes, all such Inform ation and Intelligence, as he m ay receive respecting Indian A ffairs; A nd that the A gents o r S uperintendants shall in like m anner com m unicate to the G overnors all Intelligence and Inform ation, respecting the State o f Indian A ffairs, w hich m ay in any wise regard the Security and Interest o f the said C olonies. 13. T hat no O rder shall be issued by the G overnor o r C om m ander in C h ief o f any o f H is M ajesty’s C olonies, o r by any O fficer having M ilitary C om m and in any Forts w ithin the Indian C ountry, fo r stopping the T rade with any T ribe o f Indians in e ith e r o f the said D istricts, w ithout the C oncurrence and C onsent o f the A gent o r Superintendant for Indian Affairs. 14. T hat the said A gents o r Superintendants shall by them selves, o r sufficient D eputies visit the several Posts o r T ribes o f Indians w ithin their respective D istricts once in every year, o r o ften er, as O ccasion shall require, to enquire into, and take an A ccount o f the C onduct and B ehaviour o f the subordinate O fficers at the said Posts, and in the

8

C A N A D IA N IN D IA N S A N D T H E LA W

C ountry belonging to the said T ribes; to hear A ppeals; and redress all C om plaints o f the Indians; m ake the proper P resents; and transact all A ffairs relative to the said Indians. 15. T hat for the m aintaining peace and good O rder in the Indian C ountry, and bringing O ffenders in crim inal C ases to due Punishm ent, the said A gents o r Superintendants, as also the C om m issaries at each P ost, and in the C ountry belonging to each T rib e, be em pow ered to Act as Justices o f the Peace in th eir respective D istricts and D epartm ents, w ith all pow ers and priviledges vested in such O fficers in any o f the C olonies; and also full pow er o f C om m itting O ffenders in Capital C ases, in order that such O ffenders m ay be prosecuted for the sam e; A nd that, for deciding all civil actions, the C om m issaries be e m pow ­ ered to try and determ ine in a Sum m ary w ay all such A ctions, as well betw een the Indians and T raders, as betw een one T rade and another, to the A m ount o f Ten Pounds S terling, with the L iberty o f A ppeal to the C h ief A gent or Superintendant, o r his D eputy, who shall be em pow ­ ered upon such appeal to give Judgem ent thereon; w hich Judgem ent shall be final, and process issue upon it, in like m anner as on the Judgem ent o f any C ourt o f C om m on Pleas established in any o f the C olonies. 16. T hat'for the easy attainm ent o f Justice, the evidence o f Indians, under proper R egulations and R estrictions, be adm itted in all Crim inal as well as civil cau ses, that shall be tried and adjudged by the said A gents o r S uperintendants, o r by the said C om m issaries; and that their E vidence be likew ise adm itted by the C ourts o f Justice in any o f His M ajesty ’s C olonies o r Plantations in Crim inal cases, Subject to the sam e Pains and Penalties in C ases o f false E vidence, as H is M ajesty ’s Subjects. 17. T hat the said A gents o r Superintendants shall have pow er to C onfer such H onors and R ew ards on the Indians, as shall be necessary; and o f granting C om m issions to principal Indians in their respective D istricts to be W ar C aptains o r O fficers o f other M ilitary D istinctions. 18. That the Indians o f each T ow n in every T ribe in the Southern D istrict shall choose a beloved M an to be approved o f by the A gent or Superintendant for such D istrict, to take care o f the M utual Interests both o f Indians and T raders in such T o w n ; and that such beloved M en, so elected and approved in the several T o w n s, shall elect a C h ief for the whole T ribe, w ho shall constantly reside with the C om m issary in the C ountry o f each T rib e, or o ccasionally A ttend upon the said A gent or Superintendant, as G uardian for the Indians and P rotector o f their R ights, with Liberty to the said C h ief to be present at all M eetings and upon all H earings o r T rials relative to the Indians before the A gent or Superintendant, o r before the C om m issaries; and to give his Opinion upon all M atters under C onsideration at such M eetings o r H earings.

E A R L Y B R ITISH C O L O N I A L PE R IO D

9

19. T hat the like E stablishm ents be m ade for the N orthern D istrict, as far as the N ature o f the Civil C onstitution o f the Indians in this D istrict, and the M anner o f A dm inistering civil affairs will adm it. 20. T hat no person having any M ilitary C om m and in the Indian C ountry shall be capable o f A cting as C om m issary for the A ffairs o f the Indians; in either o f the above m entioned D istricts respectively; nor shall such person having m ilitary C om m and be allow ed to carry on trade with the Indians, o r to interpose his A uthority in any thing, that regards the T rade w ith, o r civil C oncerns o f the Indians; but to give the C om m issary or o th er C ivil M agistrate all A ssistance in his pow er, w henever thereunto required. 21. T hat the said C om m issaries shall keep exact and regular A c­ counts, by way o f Jo u rn al, o f all their T ransactions and Proceedings, and o f all O ccurrences in their respective D epartm ents, and shall by every opportunity com m unicate such T ransactions and O ccurrences to the A gent o r Superintendant in their respective D istricts; w hich A gent or Superintendant shall regularly by every O pportunity correspond w ith the C om m issioners for T rade and Plantations. 22. T hat the A gent o r Superintendant, to be appointed for each D istrict, as also the C om m issaries residing at the P osts, o r in the Indian C ountry w ithin each D istrict, shall take an O ath before the G overnor or C h ief Judge o f any o f the C olonies w ithin their respective D istricts, for the due E xecution o f their respective T rusts; and they and all other subordinate O fficers, em ployed in the A ffairs o f the Indians, shall be forbid, under proper Penalties, to carry on any T rade with them , either upon th eir ow n A ccount, o r in T rust for others, o r to m ake any Purchase o f, o r accept any G rants o f L ands from the Indians. 23. T hat for the better regulation o f the Trade w ith the said Indians, conform able to their ow n R equests, and to prevent those Frauds and A buses, w hich have been so long and so loudly com plained o f in the m anner o f carrying on such T rade, all T rade with the Indians in each D istrict be carried on under the D irection and Inspection o f the A gents o r S uperintendants, and o th er subordinate O fficers to be appointed for that pu rp o se, as has been already m entioned.. 24. T hat all Persons intending to trade with the Indians shall take out L icences for that purpose under the H and and Seal o f the G overnor o r C om m ander in C h ief o f the C olony, from w hich they intend to carry on such T rade, for every o f w hich L icences no m ore shall be dem anded o r taken than tw o Shillings. 25. T hat all persons taking out L icences shall enter into Bond to H is M ajesty, His H eirs, and Successors in the Sum o f with one Surety in the Sum o f fo r the due observance o f the R egulations prescribed for the Indian T rade. 26. T hat every Person w illing to give S ecurity, and finding a

10

C A N A D IA N IN D IA N S A N D T H E LA W

Security w illing, if required, to take an O ath, that he is possessed o f property to double the value o f the Sum he stands security for, shall be intitled to a L icence. 27. T hat every such L icenced T rad er shall at the tim e o f taking out the L icence, d eclare the Post o r T ruck house, at w hich o r the T ribe o f Indians with w hich he intends to trade, w hich shall be specified in the L icence itself. 28. T hat no L icence be granted to continue longer than for one Y ear. 29. T hat no Person trade under such L icence, but the person nam ed in it, his S ervants, o r A gents, w hose N am es are to be inserted in the M argents; and in C ase any o f the Servants o r A gents nam ed in such L icence shall die, o r be discharged, the sam e shall be notified to the G overnor, by w hom the L icence w as granted, o r to the C om m issary o.f the P ost, o r in the T rib e, w here such T rader carries on T rade, to the end that the N am e o r N am es o f any o th er Servants o r A gents, em ployed by the said T rad er in the place o f those dead o r discharged, m ay in like m anner be inserted in the M argent o f the L icence. 30. T hat all L icences be entered in the S ecretary ’s O ffice, o r other proper O ffice o f R ecord in each C olony, w here they are taken o ut; for w hich Entry no m ore shall be dem anded o r taken than Six pence for each L icence; and all persons to have free Liberty to inspect such Entry, paying a Fee o f Six pence for the sam e. 31. T hat Persons trading w ith the Indians w ithout a L icence, and w ithout giving the Security above required, o r trading at any other Posts or places, than those expressed in their L icences, do forfeit all the G oods they shall be found then trading w ith, and also pay a Fine o f to His M ajesty, His H eirs, and S uccessors, and suffer M onths Im prisonm ent. 32. T hat all T raders im m ediately upon A rrival at the posts or Truck houses in the N orthern d istrict, o r in the T ribes in the Southern district, for which L icences have been taken out, and before any G oods are sold to, o r bartered with the Indians, do produce such L icences to the C om m issaries appointed for the D irection and Inspection o f the T rade at such posts, o r T ruck houses, o r in such T ribes. 33. T hat all T rade with the Indians shall be carried on by T ariffs, to be settled and E stablished from tim e to tim e by the C om m issaries at the several P osts, o r T ruck houses, o r in the C ountries belonging to the several T ribes in C oncert with the T raders and Indians. 34. T hat the C om m issaries appointed to direct, and inspect the T rade at each T ru ck house in the N orthern D istrict, shall be em pow ered to fix and prescribe Lim its round each Post o r T ruck house, within w hich Lim its all T rade with the Indians m ay be com m odiously carried on in the m ost public M anner.

E A R L Y BR IT ISH C O L O N IA L PER IO D

11

35. That all T raders have free L iberty to erect H utts and W are­ houses w ithin such L im its, in such O rder and M anner as the C o m ­ m issary shall, w ith the concurrence o f the O fficer C om m anding at such Post, D irect and appoint. 36. T hat no T rad e r shall T raffic, o r have any D ealings w ith the Indians w ithout the Lim its prescribed by the C om m issary o r other C h ief O fficer appointed for the Inspection and D irection o f the T rade. 37. T hat each T ruck house or post o f T rade in the N orthern D istrict be fortified and garrisoned; and that all T raders have free Liberty to retire into such G arrison with th eir E ffects, w hen e v er any D isturbance shall A rise, o r the C om m issary at such p o st shall represent it to be necessary. 38. T hat no T rader shall sell o r otherw ise supply the Indians with R um , o r other spirituous L iquors, Sw an Shot, o r rifled B arrelled G uns. 39. T hat in T rade with the Indians no C redit shall be given them for G oods in V alue beyond the Sum o f fifty S h illings; and no Debt beyond that Sum shall be recoverable by Law o r E quity. 40. T hat all D isputes concerning W eights o r M easures in the buying o r selling G oods shall be decided by Standard W eights and M easures, to be kept in each Post o r T ruck-house in the N orthern D istrict, and in each T ribe in the Southern D istrict. 41. T hat no private person, S ociety, C orporation, o r C olony be capable o f acquiring any Property in L ands belonging to the Indians, either by purchase of, o r G rant, o r C onveyance from the said Indians, e xcepting only w here the L ands lye w ithin the Lim its o f any C olony, the soil o f w hich has been vested in proprietors, o r C orporations by G rants from the C row n; in w hich C ases such Proprietaries o r C orpora­ tions only shall be capable o f acquiring such property by purchase or G rant from the Indians. 42. T hat proper M easures be the C onsent and C oncurrence o f the Indians, to ascertain and define the precise and exact B oundary and Lim its o f the L ands, which it m ay be proper to reserve to them , and w here no S ettlem ent w hatever shall be allow ed. 4 3 . T hat no purchases o f Lands belonging to the Indians, w hether in the N am e and for the Use o f the C row n, o r in the N am e and for the U se o f proprietaries o f C olonies be m ade but at som e general M eeting, at w hich the principal C hiefs o f each T ribe, claim ing a property in such L ands, are present; and all T racts, so purchased, shall be regularly surveyed by a Sw orn S urveyor in the presence and with the A ssistance o f a person deputed by the Indians to attend such S urvey; and the said S urveyor shall m ake an accurate M ap o f such T ract, describing the L im its, w hich M ap shall be entered upon R ecords, with the D eed o f C onveyance from the Indians. It is estim ated, that the annual E xpence o f supporting the E stab ­

12

C A N A D IA N IND IA NS A N D T H E LA W

lishm ents, proposed in the foregoing plan, providing presents for the Indians, and other contingent E xpences, m ay am ount to about tw enty thousand pounds; and it is proposed to defray this E xpence by a Duty upon the Indian T rade, either collected upon the E xportation o f Skins and Furs, (B eaver excep ted ,) from the C olonies, o r payable by the T raders at the posts and places o f T rade, as shall, upon further E xam i­ nation and the fullest Inform ation, be found m ost practicable, and least burthensom e to the T rade. A. List o f Indian T ribes in the northern D istrict o f N orth A m erica. M ohocks. Pow tew atam is. O neidas. O ttaw as. T uscaroras. C hipew eighs, o r M issisagis. O nondagas. M eynom enys. C ayugas. Folsavoins. Senecas. Puans. O sw egachys. Sakis. N anticokes. Foxes. C onoys. T w ightw ees. T uteeves. K ickapous. Saponeys. M ascoutens. C aghnaw agas. Piankashaw s. C anassadagas. W aw iaghtonos. A rundacks. K eskeskias. A lgonkins. Illinois. A benaquis. Sioux. Skaghquanoghronos. M icm acs. H urons. N orw idgew alks. Shaw anese. A rseguntecokes. D elaw ares. Penobscots. W iandots. St Johns. B. List o f Indian T ribes in the southern D istrict o f N orth A m erica. A ttucapas C herokees. Bayugtas. Creeks. C hickasaw s. T unicas. Chactaw s Peluches O fugulas. C ataw bas, Beluxis. Q uerehas. E ndorsed : Drt

E A R L Y BRITISH C O L O N I A L PE R IO D

13

Instructions for G uy C arleton E sqr G ovr o f Q uebec, D ated 3d Jany 1775. In O rder o f C ouncil o f 28th D ecem r 1774. G eorge R

C .O .

■A5. Instructions to S ir G uy C arleton, G o vern o r-in -C h ief a n d C aptainG eneral, A ugust 2 3 , 1786. (E xtract) * * *

4th You are to obtain as soon as possible, an account o f the actual N um ber o f O ur S ubjects residing in O ur said P rovince, distinguishing the O ld from the N ew Inhabitants, and again distinguishing those who have retired from the Province, now the U nited States o f A m erica, and those w ho have been in O ur Service during the late W ar, and whose C orps have been reduced; and you are also to O btain the m ost authentick Inform ation, w hether any o f the N ations o f Indians in alliance and F riendship with U s, continue to reside w ithin the T erritories o f the U nited States o f A m erica, and the B oundaries thereof, as settled by the T reaty o f P eace; and w hether those Indians, o r any others w ithin O ur T errito ries, are supplied with goods from the subjects o f the said United S tates, o r have any com m ercial o r other Intercourse with them ; and Y ou are to transm it the sam e to Us thro one o f our Principal secretaries o f State as before directed, together w ith any Inform ation, o r propo­ sition, by w hich you m ay think, proper and effectual M easures m ay be taken, to Induce those Indians to rem ove w ithin O ur T erritories, and to discontinue any Intercourse with the subjects o r Inhabitants o f the said U nited States, w hich m ay Lessen O ur Influence with them , and be prejudicial to O ur S ervice, and the Interest and C om m erce o f O ur Subjects. * * *

14

C A N A D IA N IN D IA N S A N D T H E LA W

A6. Instructions to L o rd D orchester a s G overnor o f U pper C anada, Septem ber 16, 1791. (E xtract) * * *

55. It is our Royal Intention that the Peltry Trade o f the Interior C ountry shall be free and open to all O ur Subjects Inhabitants o f any o f O ur C olonies w ho shall pursuant to w hat w as directed by O ur Royal Proclam ation o f 1763 obtain T rading L icences from the G overnors of any o f O ur said C olonies under Penalties to observe such R egulations as shall be m ade by O ur L egislature o f O ur Province o f U pper C anada for that Purpose. T hese R egulations therefore w hen established, must be m ade public throughout all O u r A m erican possessions and they m ust have for their O bject the giving every possible facility to that Trade w hich the nature o f it will ad m it, and w hich m ay be consistent with fair and ju st dealing tow ards the N ative Indians w ith w hom it is carried on; the fixing stated tim es and places for carrying on the T rade and a djusting M odes o f settling T ariffs o f the prices o f G oods and Furs and above all the restraining the Sale o f S pirituous L iquors to the Indians, will be the m ost probable and effectual M eans o f answ ering the Ends proposed. * * *

A 7. " J a y ’s T reaty” o f A m ity, C om m erce, a n d N avigation, N ovem ber 19, 1794. (E xtract) * * *

A rticle III It is agreed that it shall at all tim es be free to H is M ajesty’s subjects, and to the citizens o f the U nited S tates, and also to the Indians dw elling on e ither side o f the said boundary line, freely to pass and repass by land or inland navigation into the respective territories and countries o f the two parties on the continent o f A m erica, (the country w ithin the lim its o f the H udson’s Bay C om pany only excepted), and to navigate all the lakes, rivers and w aters thereof, and freely to carry on trade and com m erce w ith each other. But it is understood that this article does not extend to the adm ission o f vessels o f the U nited States into the sea-ports, har­ bours, bays o r creeks o f His M a jesty 's said territories; nor into such

EA R LY BR IT ISH C O L O N IA L PER IO D

15

parts o f the rivers in His M ajesty ’s said territories as are betw een the m outh thereof and the highest port o f entry from the sea, exept in sm all vessels trading bona fid e betw een M ontreal and Q uebec, under such regulations as shall be established to prevent the possibility o f any frauds in this respect. N or to the adm ission o f B ritish vessels from the sea into the rivers o f the U nited States, beyond the highest ports o f entry for foreign vessels from the sea. T he river M ississippi shall, how ever, according to the treaty o f peace, be entirely open to both parties; and it is further agreed that all the p o n s and places on its eastern side, to w hichsoever o f the parties belonging, may freely be resorted to and used by both parties, in as am ple a m anner as any o f the A tlantic ports or places o f the U nited States, o r any o f the ports o r places o f His M ajesty in G reat Britain. All goods and m erchandize w hose im portation into His M ajesty ’s said territories in A m erica shall not be entirely prohibited, m ay freely, for the purposes o f com m erce, be carried into the sam e in the m anner aforesaid by the citizens o f the U nited States, and such goods and m erchandize shall be subject to no higher or other duties than w ould be payable by His M ajesty ’s subjects on the im portation o f the sam e from E urope into the said territories. And in like m anner all goods and m erchandize whose im portation into the U nited States shall not be w holly prohibited, m ay freely, for the purposes o f com m erce, be carried into the sam e, in the m anner aforesaid, by His M a jesty ’s subjects, and such goods and m erchandize shall be subject to no higher o r o th er duties than w ould be payable by the citizens o f the United States on the im portation o f the sam e in A m erican vessels into the A tlantic ports o f the said States. A nd all goods not prohibited to be exported from the said territories respectively, m ay in like m anner be carried out o f the sam e by the tw o parties respectively, paying duty as aforesaid. No duty o f entry shall ever be levied by either party on peltries brought by land o r inland navigation into the said territories respec­ tively, nor shall the Indians passing o r repassing with their ow n proper goods and effects o f w hatever nature, pay for the sam e any im post or duty w hatever. But goods in bales, o r other large packages, unusual am ong Indians, shall not be considered as goods belonging bona fid e to Indians. N o higher o r other tolls or rates o f ferriage than w hat are or shall be payable by n atives, shall be dem anded on either side; and no duties shall be payable on any goods w hich shall m erely be carried over any of the portages o r carrying-places on e ith e r side, for the purpose o f being im m ediately re-em barked and carried to som e other place o r places. But as by this-stipulation it is only m eant to secure to each party a free passage across the portages on both sides, it is agreed that this ex em p ­

16

C A N A D IA N IND IA NS A N D T H E LA W

tion from duty shall extend only to such goods as are carried in the usual and direct road across the portage, and are not attem pted to be in any m anner sold o r exchanged during their passage across the sam e, and proper regulations m ay be established to prevent the possibility o f any frauds in this respect. As this article is intended to render in a great degree the local advantages o f each party com m on to both, and thereby to prom ote a disposition favourable to friendship and good neighbourhood, it is agreed that the respective G overnm ents will m utually prom ote this am icable intercourse, by causing speedy and im partial ju stic e to be d o n e , and necessary protection to be extended to all who m ay be concerned therein. . . . * * *

A 8(a). L etter, L o rd P ortland to L ieutenant-G overnor Sim coe R egarding M ilitary and C ivil A dm inistration o f Indian A ffairs, Sep tem b er J,

1795.

W hitehall, 3d. Septr. 1795. Lt. G ovr. Sim coe, Sir, I have received and laid before T he K ing y our L etters o f the dates and num bers m entioned in the M argin with their several Inclosures. As your S entim ents respecting the C om m issariat and the Indian D epartm ent but m ore especially repecting the latter, are fully detailed in N os 20 and 21, it will not be so necessary for m e in m y A nsw er to these points to advert to N os 18 and 19, as they discuss the sam e S ubjects. From the term s in w hich I have already stated m y opinion as to the N ature o f those D epartm ents, both in m y L etters to Lord D orchester and Y ourself, I should hope that their execution under their present C onstitution, m ight be carried on with the best possible effect both to T he K in g 's S ervice, and the C ivil Interest o f the Province o f U pper C anada. From the nature o f those D epartm ents they are placed, and al­ low ed to be properly placed under the A uthority o f the C om m ander in

E A R L Y B R IT ISH C O L O N I A L PE R IO D

17

C h ief in the first instance, with pow ers to be delegated by him , and executed under his directions. W hen U pper C anada becam e a separate Province, it evidently appeared that those D epartm ents, particularly the Indian, w ould in m any respects bear an intim ate relation to, and have connection with the C ivil Policy and G overnm ent o f that Province. T his C ircum stance naturally led to representations, that the C om ­ m ander in C hief, in exercising his prim ary A uthority over those D e­ partm ents, in cases w here their A dm inistration w as connected w ith the Civil Policy and G overnm ent o f U pper C anada, w ould o f course arrange such A dm inistration upon com m unication, and in concert with the Person entrusted with the E xecutive A uthority o f that P rovince, although the A uthority over the D epartm ents them selves continued (as it still does) to be vested in the C om m ander in C hief. H aving thus shortly stated the c ase, as it actually stands, I cannot but seriously regret the want o f that M utual C oncert and arrangem ent w hich appear to m e to be so easy and practicable, and w hich are o f such C onsequence at this m om ent, w hen so m uch depends upon a proper im pression being m ade on the m inds o f the Indians w ithin the Boundary L ine o f 1783, in the U pper Province. As far as m y own ideas g o , I should be m ore inclined to confine any part o f the A uthority o f the Indian D epartm ent w hich m ight be delegated by the C om m ander in C h ief in certain C ases touching the Civil G overnm ent o f U pper C anada to the L ieutenant G overnor in person, than to the L ieutenant G overnor and C o u n cil. T he C oncert and C om m unication betw een those tw o great O fficers w ould by this m eans be m ore im m ediate, and b etter kept up— And I should im agine that the sam e assistance m ight be received by the L ieutenant G overnor from the O fficers in the Indian D epartm ent m erely as such, in U pper C an ada, (in C onsequence o f O rders from the C om m ander in C h ief for that purpose) as if they joined to their situation that o f being M em bers o f the E xecutive C ouncil o f that Province. T he C ircum stances which have delayed the publication o f our T reaty with A m erica, are highly to be lam ented, as no tim e should be lost in preparing the m inds o f the Indians for the E vacuation o f the P osts, conform ably to the Ideas expressed in m y form er L etters on this Subject o f the 19th o f N ovem ber and 8th o f January last. Som e o f the M easures suggested in Y our L etter to Lord D orches­ ter o f the 9th o f M arch last, especially those w hich relate to holding G eneral C ouncils o f the Indians, w ould I conceive, be very conducive to this purpose, and m ight be the m eans o f giving them a true notion o f th eir future situation with regard to us, and o f the nature o f the present T reaty , w hich in fact, by giving up the precarious and contingent tenure o f the P osts, secures to us and the Indians, both w ithin and w ithout the Line o f 1783, the m ost unrestrained intercourse and com m unication.

18

C A N A D IA N IND IA NS A N D T H E LA W

and both the pow er and the m eans o f trading with each o th er to an exten t, w hich is denied to the A m ericans, from the very nature o f their situation with regard to the Indians. I am & c. PO R TL A N D . E ndorsed:— Drat. T o Lt G ovr Sim coe 1795.

A 8(b). A dditional Instructions R elating to the Indian D epartm ent, D ecem ber 15, 1796. A D D IT IO N A L IN S T R U C T IO N to the G overnor L ieutenant G overnor o r the Person A dm inistering the G overnm ent of O ur Province o f U pper C anada for the tim e being. G iven at O ur C ourt at Saint Ja m es’s the 15th day o f D ecem ber 1796 In the T hirty seventh Y ear o f O ur R eign. W H E R E A S we judge it to be conducive to the better R egulation o f O ur C oncerns w ith the Indian N ations w ithin O ur Province o f U pper C anada, that the sam e should be conducted by the Person exercising the G overnm ent o f O ur said Province for the tim e being. It is therefore O ur W ill and P leasure, T hat you do take upon you the C onduct and M an­ agem ent o f O ur C oncerns w ith the said Indians w ithin the Province o f U pper C anada, and that you do from tim e to tim e give to all Persons w hom it m ay c oncern, such D irections for the due Execution o f these, O u r Instructions, as occasion m ay require, such D irections neverthe­ less to be subject to any special O rders directed to y ou, from such Person as shall at any tim e be constituted & appointed by Us to be G overnor G eneral o f O ur Provinces in N orth A m erica. A nd It is O ur W ill and P leasure, T h at all P ersons holding C om m issions in the Indian D epartm ent w ithin O ur Provinces o f Low er and U pper C anada, so far as the sam e relates to the Province o f U pper C anada, shall follow such O rders and D irections as they shall from tim e to tim e receive from you in the Execution o f this O ur Instruction, any thing in the said C om m is­ sions to the contrary notw ithstanding. A nd you are in case o f any V acancy in any O ffice o r Place in the said Indian D epartm ent w ithin O ur Province o f U pper C anada, to transm it to U s by the first opportun­ ity th ro ’ one o f O ur Principal Secretaries o f S tate, the nam e o f such P erso n , with an A ccount o f his C haracter and Services, as You shall

E A R L Y BRITISH C O L O N I A L P E R IO D

19

esteem to be best qualified fo r fulfilling the D uties o f such O ffice, for O u r further D irections therein. G E O R G E R.

A 8(c). L etter, L o rd P o rtla n d to the D uke o f York Regarding M ilitary a n d Civil A dm inistration o f Indian A ffairs, F ebruary 21, 1800. W h it e h a l l , 21st Feby 1800 S ir ,— By the C opy o f H is M ajesty’s Instructns to the L ieut. G ovr, o r the Person adm inistering the G overnm ent o f U pper C anada for the tim e being, dated the 15th D eer 1796, w hich 1 herew ith beg leave to lay before Y our Royal H ighness, it will appear to Y our Royal H ighness that the Person in w hose hands the E xecutive A uthority o f U pper C anada is placed, is exclusively vested with the m anagem ent o f the Indian D epartm ent in that P rovince, and the recom m endation o f the O fficers necessary to conduct it [subject to H is M ajesty ’s approbation:] Y our Royal H ighness will also observe that the Instructions inclosed are form ed so absolutely on that P rinciple, that the P ow er o f giving any special O rder w ith respect to that D epartm ent in case o f any sudden em ergency w hich m ay require it, is cautiously w itheld from the C o m ­ m ander in C hief, and restricted to the G o v rG e n l in H is C ivil C apacity [should there be any such O fficer as G o v rG e n l then in being] so that it will be evident to Y our Royal H ighness that no connection o r inter­ course w hatever do es o r w as intended to exist in this respect betw een the D epartm ents o f C om m ander in C h ief o f N orth A m erica, and the C ivil G overnm ent o f U pper C anada: Y our Royal H ighness will there­ fore see the necessity I am under o f representing to Y our Royal H ighness against the exercise o f a Pow er, w hich I am persuaded has been inadvertently assum ed By H is R oyal H ighness T he D uke o f Kent in H is C apacity o f C om m ander in C h ief o f His M ajesty ’s Forces in N orth A m erica, by the A ppointm ent o f a Person to the O ffice o f Deputy Superintendt Genl o f Indians, w hich w as held by the late C ol. M cK ee, and which is, as Y our Royal H ighness will observe by the Instructions above referred to, an O ffice in the C ivil E stablishm ent o f U pper C anada, & distinctly in the appointm ent o f the C ivil G overnm ent o f that P ro v in ce.— I forbear from troubling Y our R oyal H ighness with a D etail o f the D uties o f the O ffice, o r with the reasons w hich m ake it indispensibly

20

CA N A D IA N IND IA NS A N D T H E L A W

necessary that it should be fill'd by a Person who is intim ately conver­ sant with the Interest, disposition, L anguage & custom s o f the Indians in that quarter o f the W orld, because it will be evident to Y our Royal H ighness’s superior Judgem ent, that in this as well as in every other instance, the A dm inistration o f H is M ajesty’s C olonial G overnm ent cannot be carried on with Propriety, unless the G o v rs, L ieut. G ovrs or Persons adm inistering the sam e, are alone responsible for the exercise o f that A uthority w hich His M ajesty has thought proper to place in their hands, that it is therefore absolutely necessary that their responsibility should in no degree be dim inished by the interference o f any other P erson, the consequence o f w hich w ould be to afford & hold out a ground o f excuse o r apology to be resorted to on the Part o f the G overnors in the C olonies for any A ct o f m isconduct which they m ight com m it in the adm inistration o f the G overnm ents o v er w hich they preside. H aving felt it to be m y duty to represent this case to the K ing, I have received H is M ajesty ’s C om m ands to acquaint Y our R oyal H igh­ ness that it is H is M ajesty’s Pleasure that H is Royal H ighness the Duke o f K ent should be forthw ith inform ed that the C ivil C oncerns o f all His M ajesty ’s N orth A m erican P rovinces, and the appointm ents to Civil O ffices o f every D escription w ithin the sam e can only be m anaged and recom m ended to, by the P ersons adm inistering the C ivil G overnm ent therein, subm itted to the King through that D epartm ent, w ith which His M ajesty has directed them to correspond: and consequently that the O ffice lately held by Col. M cK ee is now , and m ust be considered to all intents and purposes as vacant, until H is M ajesty ’s Pleasure with respect to C ol. M cK ee’s Successor be signified to the Lt G o v r o f U pper C anada, w hose duty it is to subm it [in conform ity to the inclosed instructions] th ro ’ one o f H is M ajesty ’s Principal S ectys o f S tate, the N am e o f such Person, with an A cct o f his C haracter & Services, as he shall esteem to be best qualified for fulfilling the duties o f such O ffice, for His M ajesty ’s further directions therein. It being His M ajesty ’s o pinion, that a strict & invariable adherence to these C om m ands o f His M ajesty is indispensibly necessary to preserve the conduct & M anage­ m ent o f the Public Service in its regular & established C o u rse.— I am [Signed] PO R TL A N D . H . R. H. T he D uke o f Y ork.

EA R L Y B R IT ISH C O L O N I A L PER IO D

21

A 9. T he T reaty o f G hent, D ecem ber 24, 1814. (E xtract) * * *

A rticle IX . T he U nited States o f A m erica engages to put an e n d , im m ediately after the ratification o f the present treaty, to hostilities with all the tribes o r nations o f Indians w ith w hom they m ay be at w ar at the tim e o f such ratification; and forthw ith to restore to such tribes o r nations, respec­ tively, all the possessions, rights and privileges w hich they m ay have enjoyed o r been en titled to in one thousand eight hundred and eleven, previous to such hostilities: Provided alw ays that such tribes o r nations shall agree to desist from all hostilities against the U nited States o f A m erica, their citizens and subjects, upon the ratification o f the present treaty being notified to such tribes o r nations, and shall so desist accordingly. A nd H is Britannic M ajesty engages, on his part, to put an end im m ediately a fter the ratification o f the present treaty, to hostilities w ith all the tribes o r nations o f Indians with w hom he may be at w ar at the tim e o f such ratification, and forthw ith to restore to such tribes or nations respectively all the possessions, rights and privileges which they m ay have enjoyed o r been entitled to in one thousand eight hundred and elev en , previous to such hostilities: Provided alw ays that such tribes or nations shall agree to desist from all hostilities against His B ritannic M ajesty, and his subjects, upon the ratification o f the present treaty being notified to such tribes o r nations, and shall so desist accordingly. * * *

A10(a). L e tte r, S ir P eregrine M aitland to L o rd B athurst R egarding the S tatus o f Indians a s Subject to British o r C anadian L aw , F ebruary 14, 1823. U pper C anada: Y ork, 14th February 1823. M y Lord, I have the honor to acquaint y our L ordship that at the last A ssizes held in the W estern D istrict o f this Province an Indian w as fully convicted o f

22

C A N A D IA N IN D IA N S A N D T H E LA W

the M urder o f another Indian in the Streets o f A m herstburg, and sentenced to su ffer death. T he circum stances o f the case, and the causes which led the Judge o f A ssize to suspend the execution o f the sentence, and to m ake a special report o f the c ase, are fully detailed in M r Justice C am pbells R eport, and in the accom panying papers. On receipt o f this R eport. I caused the other Judges to be referred to: the R eport o f M r Justice B oulton will be found in the enclosure No 3 and that o f the C h ief Ju stice, to gether with an E xtract from his charge to the G rand Jury o f the sam e D istrict at a form er A ssize, in the enclosures N os 4 and 5. A Petition from the C onvict h im self is also forw arded. T here being no precedent on record in this Province o f a Case sim ilar to the presen t, and the evident discrepancy in the sentim ents o f the Judges on the Policy o f m aking individuals o f the Indian T ribes am enable to our L aw s for O ffences com m itted am ongst them selves, have induced m e to order that the prisoner be respited until the decision o f His M ajesty ’s G overnm ent on the m atter can be ob tain ed . In order to which purpose, I have now the honor to subm it the subject for your L o rd sh ip ’s consideration. I have the honor to be, My Lord, Y our L ordship’s M ost O bedient H um ble S ervant, P. M A IT L A N D .

A 10(b). L e tte r, L o rd B athurst to S ir P eregrine M aitland R egarding the Status o f In d ia n s as Subject to British o r C anadian L aw , A u g u st I I , 1823. D O W N IN G S T R E E T 11th A ugt 1823 S ir ,

H aving referred to the consideration o f M r. Secretary Peel y our letter o f the F ebruary last transm itting the case o f an Indian C onvicted o f M urder I have now the H onor to transm it to you the Copy o f a letter from M r. H obhouse stating that M r Peel w ishes before he takes The K in g ’s Pleasure on this case to be inform ed w hether there exists any Such T reaty as is alluded to in M r. Justice C am p b ell’s letter o f the

E A R L Y B R IT ISH C O L O N I A L P E R IO D

23

9th Septr 1822; and I am to desire that you will furnish m e w ith the inform ation required by M r Peel. I have the H onor to be Sir, Y our m ost obed Servant Bathurst M ajor G eneral S ir P. M a it l a n d K .C .B . &c &c

A 10(c). L etter, S ir P eregrine M a itla n d to L o rd Bathurst R egarding the Status o f Indians as Subject to British or C anadian L aw , N o vem b er 4 , 1825. U pper C anada Y o r k , 4th N ovem ber 1825 M y Lord, W ith reference to Y our L ord ship’s despatch o f the 11th o f A ugust 1 8 2 3 ,1 have the ho n o r to report that after the m ost diligent Search in the records o f the Indian D epartm ent in this C ountry, there appears to exist no treaty that can give c o lo r to the idea that an Indian is not to be considered as am enable to the L aw for offences com m itted against a nother Indian w ithin H is M ajesty’s dom inions. I have the honor to be, M y L ord, * Y our L ordship’s M ost O bedient H um ble Servant P. M A ITL A N D . T he E a rl o f B a t h u r s t K .G . & c .ra & c .ra & c.ra

24

C A N A D IA N IN D IA N S A N D T H E LA W

A 10(d). W arrant f o r the E xecution o f an Indian as Subject to B ritish o r C ana­ dian Law , F ebruary 13, 1826. W a r ra n t

for

E x e c u t io n

of

I n d ia n , 1826.

G eorge R. W hereas Shaw anakiskie, an Indian o f the O ttaw a T ribe, w as at the A ssizes holden for the W estern C ircuit in O ur Province o f U pper C anada, in o r about the M onth o f A ugust in the year O ne thousand E ight hundred and tw enty tw o, tried and C onvicted o f the M urder o f another Indian at A m herstburgh in O ur said Province and had Sentence o f Death passed upon him for the sam e; but E xecution w as R espited by O ur Lieutenant G overnor o f O ur said P rovince, until O ur Pleasure should be know n, on the ground o f there being no precedent on Record in that Province o f a sim ilar C ase, and o f doubts w hether the Indians w ere am eanable by Law to O ur C ourts, for O ffences com m itted within O u r T erritory, against each other.— And W hereas W e thought fit to refer the P roceedings in the said C ase to O ur A dvocate, A ttorney and S olicitor G eneral fo r their O pinion, who have R eported unto Us that the C onviction o f said S haw anakiskie w as proper; and that no valid O bjec­ tion exists against the Jurisdiction o f the Court before w hich the said Shaw anakiskie w as tried. N ow W e considering the H einousness o f the said O ffence, T hink it ju st that the said Sentence should be carried into full effect, and O ur W ill and Pleasure therefore is that E xecution be done thereupon, unless in the case hereinafter next provided for But inasm uch as som e circum stances unknow n to Us m ay be K now n to you O ur G overnor o f O ur Provinces o f U pper and L ow er C anada, o r to you O ur Lieutenant G overnor o f O ur said Province o f U pper C anada which m ay render it inexpedient to E xecute the sam e, W e are therefore graciously pleased to declare O ur further W ill and Pleasure, that if there shall appear to you o r either o f you to be good reason for not carrying the said Sentence into full effect, you do cause to be passed under the G reat Seal o f O ur said Province o f U pper C anada O ur M ost G racious Pardon o f the said M urder and Felony upon C ondition that the said Shaw anakiskie be T ransported to N ew South W ales o r Van D iem an’s Land o r som e one o r other o f the Islands adjacent for and during the T erm o f his N atural Life, o r be Im prisoned in som e Prison in the said Province and there kept to hard L abour for the sam e T erm , as to you or e ith e r o f you shall seem m ost m eet and agreeable to Ju stic e.— A nd for so doing this shall be Y our W arrant.

EA R L Y BRITISH C O L O N I A L PER IO D

25

G iven at O ur C ourt at C arlton H ouse, the 13th day o f February 1826, in the Seventh Y ear o f O ur Reign. T o O ur R ight T rusty and Right W elbeloved C ousin Lieutenant G eneral G eorge, Earl o f D alhousie, O ur G overnor and C om m ander in By H is M ajesty’s C h ief o f O ur Provinces o f U pper and L ow er C om m and— C anada, O ur L ieutenant G overnor o f O ur R ob Peel P rovince o f U pper C anada, and all others w hom it m ay concern. W arrant vesting the G overnor o r L ieu­ tenant G overnor o f U pper C anada with discretionary P ow er in the case o f S haw ­ anakiskie C onvicted o f M urder

Section B Pre-confederation Legislation, 1663-1916. Bl. D ecree o f the Sup erio r C ouncil o f Q uebec F orbidding all P ersons to T rade o r G ive Intoxicating L iq u o is to Indians, S eptem ber 28, 1663. (Translation) O N what has been dem onstated by the K ing’s A ttorney-G eneral that since the founding o f this colony the trading o f intoxicating liquors to the Indians has alw ays been prohibited and forbidden under penalty o f discretionary fine because o f the rage in w hich these peoples find them selves w hen intoxicated; and that it is established that they desire to drink only to becom e intoxicated; and that notw ithstanding the pursuit and punishm ent o f offenders this disorder had com e to such a state that it had com e to the attention o f H is M ajesty; by decree o f the K ing’s C ouncil o f State dated M arch 7, 1657 it had been forbidden to deal in the said liquors with the Indians under penalty o f corporal punishm ent. In contem pt o f the said prohibitions as well as censures m ade by the C hurch this w retched com m erce has c ontinued; and notably in these last tw o years m any have taken the liberty o f vying with one another due to the relaxation o f bringing delinquents to punish­ m ent; and seeing the grow ing diso rd er w hich has resulted, and that the Indians were inclined tow ards drunkenness, despising the law s o f C hristianity and giving them selves to all sorts o f vices and abandoning the hunt, by w hich this colony has subsisted to the present tim e; it is required that a suitable rem edy be produced, and further having taken the advice o f the R everend Jesuit F athers, m issionaries to the said Indians, sum m oned for this purpose, and everything having been considered: T he prohibitions and interdictions are reiterated to all persons o f w hatever rank o r station, neither to deal nor give directly o r indirectly to the Indians any intoxicating liquors for w hatever reason o r under w hatever pretext, not even one drink, under penalty o f 300 pounds (livres) payable for the first offence, a third payable to the inform er, a 26

P R E -C O N FE D E R A T IO N LEG ISLA TIO N

27

third to the H otel-de-D ieu, and a third to the T reasury (F isc); and in the case o f repeated offence flogging o r banishm ent depending on the particulars o f the case. And this decree will be read, published and posted in the accus­ tom ed places in Q uebec, T rois-R ivieres, and M ontreal so that no person m ay plead ignorance. By order, e tc ., Signed: M ezy, G. Francois, B ishop o f Petree R ouer de V illeray

B2. D ecree o f the Sup erio r C ouncil o f Q uebec S ubjecting Indians to the P en a lty C arried by the L aw s o f F rance C oncerning M urder a n d Rape, A p ril 21, 1664. (Translation) Present in the assem bled C ouncil: H is E xcellency the G overnor, H is E xcellency the B ishop, M essrs. de V illeray and D am ours, the A ttorney-G eneral o f the present K ing, and later on the M essrs. de la Ferte and de T illy. On that w hich has been introduced by the A ttorney-G eneral o f the K ing follow ing the rape com m itted on the person o f M arthe H ubert, wife o f called L afontaine, resident o f the Isle d ’O rleans, by called R obert H ache, an Indian, who fo r this reason was m ade prisoner and then escaped c ustody; in order to accom m odate to the custom s o f the Indians, our allies, who are ignorant o f o u r law s and the penalties prescribed for the punishm ent o f the m ajority o f crim es, notably that o f rape; therehaving been assem bled before the said C ouncil: the person nam ed Noel T ek8erim at, c h ie f o f the A lgonquins o f Q uebec; K aetm aguechis, com m only called B oyer, c h ie f o f T adoussac; M angouche, c h ie f o f the N ipissing Indians; G ahyk8an, c h ie f o f the Iroquois Indians; N auck8ape8ith, called le S aum onnier, c h ie f o f the , and Jean-B aptiste Pipouikih, A benaki C aptain, in order to answ er for the said R obert H ache and to see cause w hy, for the punishm ent o f the said rape, the said R obert H ache w ould have de­ served to have been hanged and strangled. T his having been understood by the said Indians through N icholas M arsollet, accepted as interpreter in the presence o f F ather D rouillettes o f the Society o f Jesus, the said Indians w ith the said Noel T ek8erim at acting as spokesm an interpreted by the said M arsollet, stated that for a g reat m any years they had alw ays rem ained in with friendship with the French; that if th eir youths had not

28

C A N A D IA N IND IA NS A N D T H E LAW

been able to behave so well on certain occasions w hich m ay have given cause for com plaint, neither had French youths been any m ore blam e­ less; that until the present they had not been led to understand that rape, but only m urder, w as punishable by death and so the m isdeed o f the said R obert H ache, the sam e o f w hich he had not been proven guilty, should neither for a First offence be faced by the rigour o f the law nor injure so ancient a friendship; but that for the future they w ould make them selves subject to the law and that to this end they requested that this be draw n up in w riting so that it m ight be preserved for their d escen­ dants. And in order to continue to live in friendship and avoid the obstacles w hich m ay prevent it, it will be necessary to prohibit F renchm en, creditors o f the Indians, from plundering and harrassing them w hile in default o f paym ent, all the m ore so because during this tim e o f w ar it is im possible fo r the Indians to satisfy their debts entirely, being able to hunt only h alf o f the time: T he C ouncil, after having deliberated the m atter, has pardoned and now pardons the said R obert H ache o f the penalty w hich he had deserved by reason o f the said rape, barring the civil interests o f the said M arthe H ubert; and to prevent future such disorders, with the consent o f the said T ek8erim et, K aetm aguechis, M angouche, G ahyk8an, N auck8ape8ith and P ipouikh, has ordered and now orders that the said Indians subm it to the penalties carried by the law s and ordinances o f F rance concerning m urder and rape, w hich things having been given to them to be understood through the said interpreter; and it is ordered that they m ake it know n to all people in their nations so that none m ay be ignorant o f it; and w ith regard to the constraints that the French, creditors of the said Indians, place upon them in o rder to be paid, it will be m ade lawful according to the requirem ents o f the case.

B3. O rdinance in F avour o f the In habitants o f N otre-D am e-des-N eiges B earing on the C lause o f C onfiscation In serted in their C ontracts o f C oncession a gainst those w ho G ive B randy to the Indians to be N ull a n d Void, J u ly 2, 1706, (T ranslation) T he inhabitants o f N otre-D am e-des-N eiges and others on the Island o f M ontreal, having dem onstrated to us that in the contracts o f concession w hich have been m ade with them is inserted a clause o f confiscation o f their lands in the event that they give brandy and other intoxicating liquors to the Indians, to w hich having been liable, those who do not fall into that category will not perm it them selves to be exposed daily to inconveniences that people o f ill intention m ight cause th e m ; in falsely

PR E -C O N F E D E R A T IO N L EG IS LA TIO N

29

supposing that they w ould sell the said liquors, w hich are so expressly forbidden by the ordinances o f the K ing, this clause is presently useless; and after having heard le Sieur C ailhe, w ho told us that the seigneurs had never had the intention o f benefiting from the labour o f the said inhabitants by inserting this clause in their contracts, but only to assist in averting the disorders for w hich the ordinance o f the King had p rovided; in consideration o f which: W e order that the said inhabitants will enjoy the said concessions w ithout the said clause being o f any consequence against them , nevertheless enjoining them to observe th e ordinances under penalty o f punishm ent o f the full effect o f the law in the event o f infraction. By order, etc. M ade and given at our R esidence in M ontreal, July 2, 1706 Signed: R A U D O T

B 4. D ecree o f the Superior C ouncil o f Q uebec w hich O rders the R eg is­ tration o f the O rdinance b y H is M ajesty, which P rohibits the Sale o f Intoxicating L iquors to the Indians o f this C ountry, O ctober 24, 1707. (Translation) Present in the assem bled C ouncil: M essrs. R audot, Intendants, M essrs. de L otbiniere, D upont, D eL ino, H azeur, A ubert, and M accart, C oun­ cillors. C onsidered by the C ouncil w as the ordinance o f the K ing given at V ersailles, the 30th o f June last, by w hich His M ajesty m ade very express prohibitions and interdictions to all H is subjects o f w hatever rank o r condition to neither sell to nor cause to be drunk any brandy or intoxicating liquors by the Indians o f this country in future, under penalty o f confiscation o f the liquors, h a lf o f the value o f which to be paid to the inform er, and o f corporal punishm ent in case o f repeated offences; confirm ed, and this dem ands that M onsieur C harles M accart, C ouncillor, perform the function o f A ttorney-G eneral to the King. T he C ouncil has ordered and now orders that the said ordinance of His M ajesty be registered with the C lerk o f Court in order to be executed according to its form and term s, and that at the responsibility o f the said Sieur M accart it be read , published and posted in all the necessary and accustom ed places and points. Signed: R A U D O T

30

C A N A D IA N IN D IA N S A N D T H E LAW

B5. O rdinance on the Subject o f N eg ro es a n d the Indians C alled P anis, A p ril 13, 1709. (Translation) H aving a perfect know ledge o f the advantage that this colony m ight derive if it could securely locate here, by purchases that the inhabitants m ight m ake o f som e o f the Indians called P anis, w hose nation is far rem oved from this c o untry, and who can only be obtained from those Indians who go to capture them in their country and who traffic in them m ost often with the English o f the C arolinas and w ho have occasionally sold them to people o f this country, who frequently find them selves defrauded o f considerable sum s they have given for them by an idea inspired in them (the slaves) by those who have not purchased them , w hich causes them alm ost alw ays to leave th eir m asters, and this under the pretext that in France there are no slaves, w hich is not alw ays true w ith reference to those colonies w hich depend on them since on the islands o f this continent all negroes that the inhabitants purchase are alw ays regarded as such (as slaves); and since all the colonies m ust be regarded on equal footing, and since the people o f the Panis nation are also necessary to the inhabitants o f this region for the cultivation o f the land and o th er tasks w hich m ight be undertaken sim ilar to those perform ed by the negroes in the islands, and since these sorts o f engagem ents are very useful to this co lo n y , and being necessary to assure ow nership (o f slaves) to those who have purchased them and will purchase them in the future: W e, by H is M ajesty’s pleasure, decree that all Panis and negroes w ho have been purchased and will be purchased in the future will fully belong to those w ho have purchased them , as being th eir slaves; W e prohibit the said Panis and negroes from leaving their m asters, and anyone from enticing them to do so, under penalty o f 50 pounds (livres) fine. W e o rder that this decree be read and posted in the accustom ed places in the cities o f Q uebec, T rois-R ivieres, and M ontreal and that it be registered w ith the C lerks o f the Provosts o f these cities at the responsibility o f o u r subdelegates. M ade and given at o u r R esidence in Q uebec, April 13, 1709.

Signed: R A U D O T Read and published at the C hurch in L ow er Tow n after 7 o ’clock M ass, and at the d oor o f the Parish C hurch o f this tow n o f Q uebec after

P R E -C O N FE D E R A T IO N LEG ISLATIO N

3 1

H igh M ass, this 21st o f A pril, 1709, by m e, process-server and courtc rie r in the P rovostship o f Q uebec, there residing in R ue Saint-P ierre. S igned: C O N G N E T

B 6. 17 G eorge III (1777) C ap. 7 (P rovince o f Q uebec). A n O rdinance to P revent the Selling o f S trong L iquors to the Indians in the P rovince o f Q uebec, as also to D eter P ersons fr o m B uying th eir A rm s o r C loathing, a n d f o r oth er P urposes R elative to the Trade a n d C om m erce with the sa id Indians. W H E R EA S m any m ischiefs m ay be occasioned by the practice o f selling rum and other strong liquors to the Indians, and o f buying their cloaths and arm s, and also by trading w ith the said Indians, o r settling a m ongst th em , w ithout a licence; It is ordained and enacted, & c ., that from and after the publication o f this ordinance, no person o r persons w hatsoever shall sell, distribute, o r otherw ise dispose o f, to any Indian o r Indians w ithin this P rovince, o r to any other person o r persons for their use, any rum o r o th er strong liquors, o f w hat kind o r quality soever, o r shall know ingly o r w illingly suffer the sam e, in any m anner, to com e to the hands o f any Indian o r Indians, w ithout a special licence in w riting for that p u rpose, first had and obtained from the G overnor. L ieutenant-G overnor, o r C om m ander-in-C hief o f this Province for the tim e being, o r from His M ajesty ’s agents o r superintendants for Indian affairs, o r from His M a jesty 's com m andants o f the different forts in this P rovince, o r from such other person o r persons as the G overnor, L ieutenant-G overnor, o r C om m ander-in-C hief o f the P rovince, for the tim e being, shall authorise for that purpose. E very person offending herein shall, for the first offence, forfeit the sum o f five pounds, and suffer an im prisonm ent fo r any tim e not exceeding one m onth, and for the second and every subsequent o f­ fence, shall forfeit ten p o u n d s, and suffer an im prisonm ent for any tim e not exceeding tw o m onths. If the person so offending, be a publican, innkeeper, o r retailer o f strong liquors, he shall, over and above the said penalty and im prison­ m ent, be rendered incapable, from the day o f his conviction, o f selling o r retailing liquors to any person w hatsoever, notw ithstanding any licence that he m ay have for that purpose, w hich licence is hereby declared to be null and void from the day o f his conviction. II. From and after the publication o f this o rd in an ce, no person o r

32

C A N A D IA N IND IA NS A N D T H E LA W

persons w hatsoever shall purchase, o r receive in pledge o r in exchange, any cloaths, blankets, fire-arm s or am m unition belonging to any Indian o r Indians w ithin this P rovince, under a penalty o f five pou n d s, and im prisonm ent for any tim e not exceeding one m onth, for the first offence, and o f ten pounds, and im prisonm ent for any tim e not exceed­ ing tw o m onths, for the second and every o th er subsequent offence. III. From and after the publication o f this ordinance, it shall not be law ful for any person to settle in any Indian village o r in any Indian c o untry, w ithin this Province, w ithout a licence in w riting from the G overnor, L ieutenant-G overnor, or C om m ander-in-C hief o f the Prov­ ince, for the tim e being, under a penalty o f ten pounds for the first offen ce, and tw enty pounds for the second and every other subsequent offence.

B7. 10 G eorge IV (1829) C ap. 3 (U p p er C anada). A n A ct the B etter to P rotect the M ississaga Tribes, Living on the Indian R eserve o f the R iver C redit, in their E xclusive R ight o f F ish in g a n d H unting therein. Ipassed M arch 29, 18291 W h erea s heretofore the principal chiefs and w arriors of the M ississaga Indians, that is to say, C heehalk, O senega, A cheton, and others o f the said chiefs, for them selves and their people, did sell, m ake over, and surrender, by several deeds registered in the office o f the secretary o f the province, to his M ajesty, K ing G eorge the T hird, his heirs and successors, divers large tracts o f land lying betw een the river Etobicoke and the head o f the lake O ntario, reserving to them selves, their people, and their posterity forever, am ongst other portions o f the said tracts, a certain parcel th ere o f on the river C redit, called in the Indian language the river M azenahekasepa, w ith the sole right to the fisheries therein, which parcel o f land so reserved is, in the office o f the surveyor general, described as fo llo w s, that is to say; com m encing in the southern boundary o f the said reserve, at a large white oak squared post, planted by M r. W ilm ot, deputy surveyor, in the year one thousand eight hundred and six , standing on the bank o f lake O ntario, one m ile southw esterly from the said river; thence north sixty-nine degrees w est, sixty-three chains, thirty-one links, m ore o r less, to where the said boundary line form s the first angle; thence south sixtyfo u r degrees w est, one hundred and ninety-one chains, m ore o r less, to w here the said boundary line form s the second angle; thence north, forty-five degrees w est, tw enty chains, m ore o r less, to w ithin the distance o f fifty chains o f the eastern lim it o f D undas street; thence

P R E -C O N FE D E R A T IO N LEG IS LA TIO N

33

north, thirty-eight degrees east, parallel to D undas street, three hundred c h ain s, m ore or less, to the intersection o f the said line with the northern boundary line o f the said reserve, produced on a course north sixty-nine degrees w est, from a squared white oak post, planted in the year one thousand eight hundred and six, by the said deputy surveyor, piled with stone, near the bank o f lake O ntario, one m ile from the river C redit, at right angles from the general course to the first bend o f the said river, which is north sixty-nine degrees w est: thence along the said northern boundary line on a course south sixty-nine degrees e ast, one hundred and eighty-five chains, m ore o r less, to lake O ntario, at the last m entioned squared post; thence along the w a te r's edge o f the said lake to the place o f beginning, containing fo u r thousand acres, m ore o r less; and w hereas the tribe o f the said M ississagas living on the said river M azenahekasepa, or C redit, have by petition to his excellency sir John C olborne, com plained o f m any unw arrantable disturbances, trespas­ ses, and vexations, practised by divers idle and dissolute fisherm en, and others, upon the said reserved parcel o f land and fishery aforesaid, thereby unjustly dim inishing the source o f their subsistence, w antonly destroying fish and gam e, and setting evil exam ples by their rudeness and ill m anners tow ards the said w orthy and unoffending people; and it is necessary to prohitbit such unw arrantable disturbances, trespasses, vexations, and evil exam ple, in o rder to preserve to the said M ississaga people the quiet and peaceable enjoym ent o f their said land and fishery, and the rights and privileges thereunto belonging; be it therefore enacted by the K ing’s m ost excellent M ajesty, by and with the advice and consent o f the legislative council and assem bly o f the province o f U pper C anada, constituted and assem bled by virtue o f and under the authority o f an act passed in the parliam ent o f G reat B ritain, entitled, “ An act to repeal certain parts o f an act passed in ^he fourteenth year of his M ajesty ’s reign, entitled , ‘An act for m aking m ore effectual provi­ sion for the governm ent o f the province o f Q uebec, in N orth A m erica, and to m ake further provision for the governm ent o f the said p ro v in ce ,’ ” and by the authority o f the sam e. T hat if, after the passing o f this a ct, any person o r persons w hatsoever, against the will o f the said M ississaga people, o r w ithout the consent o f three o r more o f their principal m en or ch ie fs, shall hunt or fish in any w ay, m ode, o r m anner, w hatsoever, for fish, o r g am e, o r fu r, o f any kind, upon the said reserved parcel o f land and w aters thereof, such person o r persons so offending shall be liable to be taken by one o f the principal m en o f the said Indian p eople, and one o f the sw orn constables o f the said district, before any one o f his M ajesty’s ju stices o f the peace, convenient to the said reserved parcel o f land, and being convicted by the oath o f one or m ore creditable w itness o r w itnesses, before such ju stice o f the peace, shall be com m itted to prison in the next g ao l, there rem ain for a space of

34

C A N A D IA N IND IA NS A N D T H E LA W

tim e not less than one, nor m ore than three days; and the fish, flesh, gam e, and fur, taken with the offender, shall be deem ed to belong to the Indians arresting and taking such offender; and the boat, skiff, canoe, net, spears, light-jacks, traps, springs, or o th er craft o r im plem ents in the possession o f the offender at the tim e o f the offence, o r set, placed, laid, m oved, o r otherw ise used by him in hunting o r fishing on the said reserved land, and the w aters thereof, against the provison o f this law , shall be liable to be seized and taken by the said Indian p eople, and held and taken to be public property o f the said Indian tribe, disposable at the discretion o f their principal m en o r chiefs, for the public benefit o f the said tribe. II. And w hereas it m ay be necessary to obviate all doubt or ignorance o f the extent o f the said right o f fishing so necessary to the existence and support o f the said Indian tribe living on the said river M azenahekasepa, o r C red it; be it therefore enacted by the authority aforesaid, T hat the said right to the sole fishery aforesaid shall be held and taken to extend through the entire stream , from R acey’s line dow n its co u rse, to its m outh, and from thence one m ile into lake O ntario, occupying such a space thereon as m ay be supposed to be included in the segm ent o f a circle, having the m iddle o f the said river at its m outh as the centre*, and the d istance thence to the eastern boundary w here it touches the shore as its radius, w hereby to describe the said segm ent from the east to w est boundaries thereof on the shore as aforesaid: Provided alw ays, nevertheless, T hat nothing herein contained shall e xtend, o r be construed to extend, to take aw ay or in any w ise dim inish, the com m on law rights and rem edies, w hich the said Indian people may at any tim e be desirous o f availing them selves, as other subjects o f his M ajesty w ithin this province, in protection o f their lands from trespass, w aste, or o th er dam age w hatsoever; neither shall any thing herein contained extend, o r be construed to extend, to prevent or in any w ise to obstruct any o f his M ajesty ’s subjects, in travelling, passing, and repassing, by them selves, their team s and carriages, by and along any public highw ay o r road now o r hereafter laid out by law ful authority, in o r over any part o f the said reserved land, nor to prevent o r in any w ise to obstruct any o f his M ajesty ’s subjects with their vessels, boats, and rafts, to navigate freely the said river and w aters, for the purposes of trade o r other law ful occasion. III. And be it further enacted by the authority aforesaid, T hat this act shall continue in force for four years, and from thence to the end of the then next ensuing session o f parliam ent, and no longer.

P R E -C O N F E D E R A T IO N LEG ISLA TIO N

35

B8. 2 V ictoria (1839) C ap. 15 ) divide the w hole o r any portion o f a reserve into lots o r other subdivisions, and (c) determ ine the location and direct the construction o f roads in a reserve. R .S ., c. 149, s. 19.

POSSESSION O F L A N D S IN RESERV ES

20. (1) No Indian is law fully in possession o f land in a reserve unless, with the approval o f the M inister, possession o f the land has been allotted to him by the council o f the band. (2) T he M inister may issue to an Indian who is law fully in possession o f land in a reserve a certificate, to be called a C ertificate o f Possession, as evidence o f his right to possession o f the land described therein. (3) For the purposes o f this A ct, any person w ho, on the 4th day of Septem ber 1951, held a valid and subsisting Location T icket issued under The Indian A ct, 1880, o r any statute relating to the sam e subject-m atter, shall be deem ed to be law fully in possession o f the land to which the location ticket relates and to hold a C ertificate o f Posses­ sion with respect thereto. (4) W here possession o f land in a reserve has been allotted to an Indian by the council o f the band, the M inister m ay, in his discretion, w ithhold his approval and m ay authorize the Indian to occupy the land tem porarily and m ay prescribe the conditions as to use and settlem ent that are to be fulfilled by the Indian before the M inister approves o f the allotm ent. (5) W here the M inister w ithholds approval pursuant to subsection (4 ), he shall issue a C ertificate o f O ccupation to the Indian, and the C ertificate entitles the Indian, o r those claim ing possession by devise or d escent, to occupy the land in respect o f w hich it is issued for a period o f tw o years from the date thereof. (6) T he M inister m ay extend the term o f a C ertificate o f O ccupa­ tion for a further period not exceeding tw o years, and m ay, at the expiration o f any period during w hich a C ertificate o f O ccupation is in force («) approve the allotm ent by the council o f the band and issue a C ertificate o f Possession if in his opinion the conditions as to use and settlem ent have been fulfilled, or (/?) refuse approval o f the allotm ent by the council o f the band and declare the land in respect o f w hich the C ertificate o f O ccupation

B N A A C T A N D I N D I A N ACTS

163

was issued to be available for reallotm ent by the council o f the band, c .1 4 9 , s. 20. 21. T here shall be kept in the D epartm ent a register, to be know n as the R eserve Land R egister, in w hich shall be entered particulars relat­ ing to C ertificates o f Possession and C ertificates o f O ccupation and oth er transactions respecting lands in a reserve. R .S ., c. 149, s. 21. 22. W here an Indian who is in possession o f lands at the tim e they are included in a reserve, m ade perm anent im provem ents thereon before that tim e, he shall be deem ed to be in law ful possession o f such lands at the tim e they are so included. R .S ., c. 149, s. 22. 23. An Indian who is law fully rem oved from lands in a reserve upon w hich he has m ade perm anent im provem ents m ay, if the M inister so d irects, be paid com pensation in respect th ere o f in an am ount to be determ ined by the M inister, e ith e r from the person w ho goes into possession o r from the funds o f the band, at the discretion o f the M inister. R .S ., c. 149, s. 23. 24. An Indian who is law fully in possession o f lands in a reserve m ay tran sfer to the band o r to another m em ber o f the band the right to possession o f the land, but no transfer o r agreem ent for the transfer o f the right to possession o f lands in a reserve is effective until it is approved by the M inister. R .S ., c. 149, s. 24. 25. ( 1 ) An Indian who ceases to be entitled to reside on a reserve m ay. w ithin six m onths o r such further period as the M inister m ay direct, transfer to the band o r another m em ber o f the band the right to possession o f any lands in the reserve o f which he was law fully in possession. (2) W here an Indian does not dispose o f his right o f possession in accordance with subsection (1), the right to possession o f the land reverts to the band, subject to the paym ent to the Indian who was law fully in possession o f the land, from the funds o f the band, o f such com pensation for perm anent im provem ents as the M inister m ay d eter­ m ine! R .S ., c. 149, s. 25. ' 26. W henever a C ertificate o f P ossession o r O ccupation o r a Loca­ tion T icket issued under T h e Indian Act, 1880, o r any statute relating to the sam e subject-m atter w as, in the opinion o f the M inister, issued to or in the nam e o f the w rong person, through m istake, o r contains any clerical erro r or m isnom er, o r w rong description o f any m aterial fact therein, the M inister m ay cancel the C ertificate o r Location T icket and issue a corrected C ertificate in lieu thereof. 1956, c. 4 0 , s. 9. 27. T he M inister m ay, with the consent o f the h older thereof, cancel any C ertificate o f Possession o r O ccupation o r Location T icket referred to in section 26, and m ay cancel any C ertificate o f Possession or O ccupation o r Location T icket that in his opinion w as issued through fraud o r in error. 1956, c. 40, s. 9.

164

C A N A D I A N I NDIANS A N D T H E LAW

28. (1) Subject to subsection (2), a d eed , lease, contract, instru­ m ent, docum ent o r agreem ent o f any kind w hether w ritten o r o ra l, by w hich a band o r a m em ber o f a band purports to perm it a person other than a m em ber o f that band to occupy o r use a reserve o r to reside or otherw ise exercise any rights on a reserve is void. (2) T he M inister may by perm it in w riting authorize any person for a period not exceeding one y ear, or with the consent o f the council o f the band for any longer period, to occupy o r use a reserve o r to reside o r otherw ise exercise rights on a reserve. R . S ., c . 149, s. 28: 1956, c. 4 0 , s. 10. 29. R eserve lands are not subject to seizure under legal process. R .S ., c. 149, s. 29. TRESPASS ON RESERVES

30. A person who trespasses on a reserve is guilty of an offence and is liable on sum m ary conviction to a fine not exceeding fifty dollars or to im prisonm ent for a term not exceeding one m onth, o r to both. R .S ., c. 149, s. 30. 31. (1) W ithout prejudice to section 30, w here an Indian o r a band alleges that persons other than Indians are o r have been (a) unlaw fully in occupation o r possession of, (b) claim ing adversely the right to occupation o r possession of, or (c) trespassing upon a reserve or part o f a reserve, the A ttorney G eneral o f C anada may e xhibit an Inform ation in the E xchequer Court o f C anada claim ing, on beh alf o f the Indian o r the band, the relief o r rem edy sought. (2.) An Inform ation exhibited under subsection (1) sh all, for all purposes o f the E xchequer C ourt A c t, be deem ed to be an action o r suit by the Crow n w ithin the m eaning o f paragraph 2 9 (d) o f that Act. (3) N othing in this section shall b e construed to im pair, abridge or otherw ise affect any right or rem edy that, but for this section, w ould be available to H er M ajesty o r to an Indian o r a band. R .S ., c. 149, s. 31. SALE OR BARTER OF PRODUCE

32. (1) A transaction o f any kind w hereby a band o r a m em ber th ere o f purports to sell, barter, exchange, give o r otherw ise dispose o f cattle o r other anim als, grain o r hay, w hether w ild or c u ltivated, o r root crops o r plants o r their products from a reserve in M anitoba, Saskatch­ ew an o r A lberta, to a person o th er than a m em ber o f that band, is void unless the superintendent approves the transaction in w riting. (2) The M inister m ay at any tim e by o rder exem pt a band and the

B N A A C T A N D I N D I A N ACTS

165

m em bers thereof o r any m em ber thereof from the operation o f this section, and m ay revoke any such order. R .S ., c. 149, s. 32. 33. E very person who enter's into a transaction that is void under subsection 32(1) is guilty o f an offence. R .S ., c. 149, s. 33. R O A D S A N D B R ID G E S

34. (1) A band shall ensure that the roads, bridges, ditches and fences w ithin the reserve occupied by that band are m aintained in accordance w ith instructions issued from tim e to tim e by the superin­ tendent. (2) W here, in the opinion o f the M inister, a band has not carried out the instructions o f the superintendent given under subsection (1), the M inister may cause the instructions to be carried out at the expense o f the band or any m em ber th ere o f and m ay recover the cost thereof from any am ounts that are held by H er M ajesty and are payable to the band o r such m em ber. R .S ., c. 149, s. 34. LA ND S T A K E N FOR PU BLIC PURPOSES

35. (1) W here by an A ct o f the Parliam ent o f C anada or a provin­ cial legislature, H er M ajesty in right o f a province, a m unicipal o r local authority o r a corporation is em pow ered to take o r to use lands o r any interest therein w ithout the consent o f the ow ner, the pow er m ay, with the consent o f the G overnor in C ouncil and subject to any term s that may be prescribed by the G overnor in C ouncil, be exercised in relation to lands in a reserve o r any interest therein. (2) U nless the G overnor in C ouncil otherw ise directs, all m atters relating to com pulsory taking o r using o f lands in a reserve under subsection (1) are governed by the statute by w hich the pow ers are conferred. (3) W henever the G overnor in C ouncil has consented to the exercise by a province, authority o r corporation o f the pow ers referred to in subsection (1 ), the G overnor in C ouncil m ay, in lieu o f the province, authority o r corporation taking o r using the lands w ithout the consent o f the ow ner, authorize a transfer or grant o f such lands to the province, authority o r corporation, subject to any term s that m ay be prescribed by the G overnor in C ouncil. (4) A ny am ount that is agreed upon o r aw arded in respect o f the com pulsory taking or using o f land under this section o r that is paid for a transfer o r grant o f land pursuant to this section shall be paid to the R eceiver G eneral for the use and benefit o f the band o r for the use and benefit o f any Indian who is entitled to com pensation o r paym ent as a

166

CA NA DIA N INDIANS A N D TH E LAW

result o f the exercise o f the pow ers referred to in subsection (1). R .S ., c. 149, s. 35. S PE C IA L RESERVES

36. W here lands have been set apart for the use and benefit o f a band and legal title thereto is not vested in H er M ajesty, this Act applies as though the lands were a reserve w ithin the m eaning o f this A ct. R .S ., c. 149, s. 36. SURRENDERS

37. E xcept w here this Act otherw ise provides, lands in a reserve shall not be sold, alienated, leased o r otherw ise disposed o f until they have been surrendered to H er M ajesty by the band for w hose use and benefit in com m on the reserve w as set apart. R .S ., c. 149, s. 37. 38. (1) A band m ay su rren d er to H er M ajesty any right o r interest o f the band and its m em bers in a reserve. (2) A su rren d er m ay be absolute o r qualified, conditional or unconditional. R .S ., c. 149, s. 38. 39. (1) A surrender is void unless (a) it is m ade to H er M ajesty, (b ) it is assented to by a m ajority o f the electors o f the band (i) at a general m eeting o f the band called by the council of the band, (ii) at a special m eeting o f the band called by the M inister for the purpose o f considering a proposed surrender, or (iii) by a referendum as provided in the regulations, and (c) it is accepted by the G overnor in C ouncil. (2) W here a m ajority o f the electors o f a band did not vote at a m eeting or referendum called pursuant to subsection (1) o f this section o r pursuant to section 51 o f the Indian A c t , ch ap ter 98 o f the Revised Statutes o f C an ad a, 1927, the M inister m ay, if the proposed surrender was assented to by a m ajority o f the electors w ho did vote, call another m eeting by giving thirty days notice thereof or another referendum as provided in the regulations. (3) W here a m eeting is called pursuant to subsection (2) and the proposed su rren d er is assented to at the m eeting o r referendum by a m ajority o f the electors voting, the surrender shall be deem ed, for the purpose o f this section, to have been assented to by a m ajority o f the electors o f the band. (4) T he M inister m ay, at the request o f the council o f the band o r

BN A A C T A N D I N D I A N ACTS

167

w henever he considers it advisable, order that a vote at any m eeting under this section shall be by secret ballot. (5) E very m eeting under this section shall be held in the presence o f the superintendent o r som e other o fficer o f the D epartm ent desig­ nated by the M inister. R .S ., c. 149, s. 39; 1956, c. 4 0 , s. 11. 4 0 . W hen a proposed surrender has been assented to by the band in accordance with section 3 9 , it shall be certified on oath by the superin­ tendent o r other officer w ho attended the m eeting and by the c h ie f o r a m em ber o f the council o f the band, and shall then be subm itted to the G overnor in C ouncil for acceptance o r refusal. R .S ., c. 149. s. 40. 4 1 . A surrender shall be deem ed to c onfer all rights that are necessary to enable H er M ajesty to carry out the term s o f the surrender. R .S ., c . 149. s. 41. D ESCEN T O F PROPERTY

4 2 . (1) U nless otherw ise provided in this A ct, all ju risdiction and authority in relation to m atters and causes testam entary, with respect to deceased Indians, is vested exclusively in the M inister, and shall be exercised subject to and in accordance with regulations o f the G overnor in C o u n c ilr— (2) T he G overnor in C ouncil m ay m ake regulations for providing that a deceased Indian w ho at the tim e o f his death w as in possession o f land in a reserve shall, in such circum stances and for such purposes as the regulations prescribe, be deem ed to have been at the tim e o f his death law fully in possession o f that land. (3) R egulations m ade under this section m ay be m ade applicable to estates o f Indians w ho died before, on o r after the 4th day o f Septem ber 1951. R .S ., c. 149, s. 42; 1956, c . 4 0 . s. 12. 43. W ithout restricting the generality o f section 4 2 , the M inister m ay («) appoint executors o f w ills and adm inistrators o f estates of deceased Indians, rem ove them and appoint others in their stead; Cb ) authorize executors to carry out the term s o f the w ills o f deceased Indians; (c) authorize adm inistrators to adm inister the property o f Indians who die intestate; (d) carry out the term s o f w ills o f deceased Indians and adm inister the property o f Indians w ho die intestate; and (e) m ake or give any order, direction or finding that in his opinion it is necessary o r desirable to m ake or give with respect to any m atter referred to in section 4 2 . R .S ., c. 149, s. 43. 44. (1) T he court that w ould have ju risdiction if the deceased

168

CA NADIAN INDIANS AND TH E LAW

were not an Indian m ay, with the consent o f the M inister, exercise, in accordance with this A ct, the ju risdiction and authority conferred upon the M inister by this Act in relation to testam entary m atters and causes and any o th er pow ers, jurisd ictio n and authority ordinarily vested in that court. (2) T he M inister may direct in any particular case that an applica­ tion for the grant o f probate o f the will o r letters o f adm inistration shall be m ade to the court that w ould have ju risdiction if the deceased were not an Indian, and the M inister m ay refer to such court any question arising out o f any will o r the adm inistration o f any estate. (3) A court that is exercising any ju risdiction o r authority under this section shall not w ithout the consent in w riting o f the M inister enforce any o rd e r relating to real property on a reserve. R .S .,c . 149, s. 44.

W IL LS

45. (1) N othing in this A ct shall be construed to prevent o r pro­ hibit an Indian from devising o r bequeathing his property by will. (2) T he M inister m ay accept as a will any w ritten instrum ent signed by an Indian in w hich he indicates his w ishes o r intention with respect to the disposition o f his property upon his death. (3) No will executed by an Indian is o f any legal force o r effect as a disposition o f property until the M inister has approved the will o r a court has granted probate th ere o f pursuant to this A ct. R .S ., c. 149, s. 45. 4 6 . (1) T he M inister m ay declare the will o f an Indian to be void in w hole o r in part if he is satisfied that (a) the will w as executed under duress o r undue influence; (b) the testator at the tim e o f execution o f the will lacked tes­ tam entary capacity; (c) the term s o f the will w ould im pose hardship on persons for w hom the testator had a responsibility to provide; (d ) the will purports to dispose o f land in a reserve in a m anner contrary to the interest o f the band o r contrary to this Act; (e) the term s o f the will are so vague, uncertain o r capricious that proper adm inistration and equitable distribution o f the estate o f the deceased w ould be difficult o r im possible to carry out in accor­ dance w ith this A ct; o r (f) the term s o f the will are against the public interest. (2) W here a will o f an Indian is declared by the M inister o r by court to be w holly void, the person executing the will shall be deem ed to have died intestate, and w here the will is so declared to be void in part

B N A A C T A N D I N D I A N ACTS

169

only, any bequest o r devise affected thereby, unless a contrary inten­ tion appears in the w ill, shall be deem ed to have lapsed. R .S ., c. 149, s. 46. APPEALS.

4 7 . (1) A decision o f the M inister m ade in the exercise o f the ju risdiction o r authority conferred upon him by section 42. 43 o r 46 m ay, w ithin tw o m onths from the date thereof, be appealed by any person affected thereby to the E xchequer C ourt o f C anada, if the am ount in controversy in the appeal exceeds five hundred dollars o r if the M inister consents to an appeal. (2) T he ju d g es o f the E xchequer C ourt m ay m ake rules respecting the practice and procedure governing appeals under this section. R .S ., c. 149, s. 47. DISTRIBUTIO N O F PROPERTY O N INTESTACY

48. (1) W here the net value o f the estate o f an intestate does not, in the opinion o f the M inister, exceed in value tw o thousand dollars, the estate shall go to the widow. (2) W here the net value o f the estate o f an intestate, in the opinion o f the M inister, is tw o thousand dollars o r m ore, tw o thousand dollars shall go to the w idow , and the rem ainder shall go as follow s, nam ely: (a) if the intestate left no issue, the rem ainder shall go to the w idow ; (b) it the intestate left one ch ild , one-h alf o f the rem ainder shall go to the w idow ; and (c) if the intestate left m ore than one child, one-third o f the rem ainder shall go to the w idow ; and w here a child has died leaving issue and such issue is alive at the date o f the in testate’s death , the w idow shall take the sam e share o f the estate as if the child had been living at that date. (3) N otw ithstanding subsections (1) and (2), (ia ) where in any particular case the M inister is satisfied that any children o f the deceased will not be adequately provided for, he m ay direct that all o r any part o f the estate that w ould otherw ise go to the w idow shall go to the children, and (b) the M inister m ay direct that the w idow shall have the right, during her w idow hood, to occupy any lands on a reserve that were occupied by her deceased husband at the tim e o f his death. (4) W here an intestate dies leaving issue his estate shall be distri­ buted, subject to the rights o f the w idow , if any .p e r stirpes am ong such issue.

170

CANADIAN INDIANS AN D T H E LAW

(5) W here an intestate dies leaving no w idow o r issue his estate shall go to his father and m other in equal shares if both are living, but if either o f them is dead the estate shall go to the survivor. (6) W here an intestate dies leaving no w idow or issue o r father o r m other his estate shall go to his brothers and sisters in equal shares, and if any brother o r sister is dead the children o f the deceased brother or sister shall take the share heir parent w ould have taken if living, but w here the only persons entitled are children o f deceased brothers and sisters, they shall take per capita. (7) W here an intestate dies leaving no w idow , issue, father, m other, brother o r sister, and no children o f any deceased b ro th er o r sister, his estate shall go to his next-of-kin. (8) W here the estate goes to the next-of-kin it shall be distributed equally am ong the next-of-kin o f equal degree o f consanguinity to the intestate and those who legally represent them , but in no case shall representation be adm itted after bro th ers' and sisters’ children, and any interest in land in a reserve shall vest in H er M ajesty for the benefit o f the band if the nearest o f kin o f the intestate is more rem ote than a brother o r sister. (9) For the purposes o f this section, degrees o f kindred shall be com puted by counting upw ard from the intestate to the nearest com m on an cesto r and then dow nw ard to the relative, and the kindred o f the half-blood shall inherit equally with those o f the w hole-blood in the sam e degree. (10) D escendants and relatives o f the intestate begotten before his death but born thereafter shall inherit as if they had been bom in the lifetim e o f the intestate and had survived him . (11) All such estate as is not disposed o f by will shall be distri­ buted as if the testator had died intestate and had left no o th er estate. (12) No w idow is entitled to do w er in the land o f her deceased husband dying intestate, and no husband is entitled to an estate by curtesy in the land o f his deceased wife so d y in g , and there is no com m unity o f real o r personal property situated on a reserve. (13) Illegitim ate children and their issue shall inherit from the m other as if the children were legitim ate, and shall inherit as if the children were legitim ate, through the m other, if dead, any real or personal property that she w ould have taken, if living, by gift, devise or descent from any o th er person. (14) W here an intestate, being an illegitim ate child, dies leaving no w idow o r issue, his estate shall go to his m other, if living, but if the m other is dead his estate shall go to the o th er children o f the sam e m other in equal shares, and w here any child is dead the children o f the deceased child shall take the share th eir parent w ould have taken if

B N A A C T A N D I N D I A N ACTS

171

living; but w here the only persons entitled are children o f deceased children o f the m other, they shall take per capita. (15) T his section applies in respect o f an intestate w om an as it applies in respect o f an intestate m ale, and for the purposes o f this section the w ord “ w id o w " includes “ w idow er” . (16) In this section " c h ild ” includes a legally adopted child and a child adopted in accordance with Indian custom . R .S ., c. 149, s. 48; 1956, c. 4 0 , s. 13. 4 9 . A person w ho claim s to be entitled to possession o r occupation o f lands in a reserve by devise o r descent shall be deem ed not to be in law ful possession o r occupation o f that land until the possession is approved by the M inister. R .S ., c. 149, s. 49. 50. (1) A person w ho is not entitled to reside on a reserve does not by d evise or descent acquire a right to possession o r occupation o f land in that reserve. (2) W here a right to possession o r occupation o f land in a reserve passes by devise o r descent to a person w ho is not entitled to reside on a reserve, that right shall be offered for sale by the superintendent to the highest b idder am ong persons w ho are entitled to reside on the reserve and the proceeds o f the sale shall be paid to the devisee o r descendant, as the case m ay be. (3) W here no tender is received w ithin six m onths o r such further period as the M inister m ay direct after the date w hen the right to possession o r occupation is offered for sale under subsection (2 ), the right shall revert to the band free from any claim on the part o f the devisee o r descendant, subject to the paym ent, at the discretion o f the M inister, to the devisee o r descendant, from the funds o f the band, o f such com pensation for perm anent im provem ents as the M inister m ay determ ine. (4) T he purchaser o f a right to possession o r occupation o f land under subsection (2) shall be deem ed not to be in law ful possession or occupation o f the land until the possession is approved by the M inister. R .S ., c. 149, s. 50. M E N T A L L Y IN C O M P E T E N T IN D IA N S

51. (1) Subject to this section, all ju risdiction and authority in relation to the property o f m entally incom petent Indians is vested exclusively in the M inister. (2) W ithout restricting the generality of subsection (1 ), the M inis­ ter may (a ) appoint persons to adm inister the estates o f m entally incom pe­ tent Indians;

172

CA NADIAN INDIANS AN D T H E LAW

(/?) order that any property o f a m entally incom petent Indian shall be sold, leased, alienated, m ortgaged, disposed o f o r otherw ise dealt w ith for the purpose o f (i) paying his debts o r engagem ents, (ii) discharging encum brances on his property, (iii) paying debts o r expenses incurred for his m aintenance o r otherw ise for his benefit, or (iv) paying or providing for the expenses o f future m ainte­ nance; and (c) m ake such orders and give such directions as he considers necessary to secure the satisfactory m anagem ent o f the estates o f m entally incom petent Indians. (3) T he M inister m ay order that any property situated o ff a re­ serve and belonging to a m entally incom petent Indian shall be dealt w ith under the law s o f the province in w hich the property is situated. R .S ., c. 149, s. 51.

GUARDIAN SHIP

52. T he M inister may adm inister or provide for the adm inistration o f any property to which infant children o f Indians are entitled, and may appoint guardians for such purpose. R .S ., c. 149, s. 52. M A N A G E M E N T O F RESERVES A N D SU R R E N D E R ED LANDS

53. (1) T he M inister or a person appointed by him for the purpose m ay m anage, se ll, lease o r otherw ise dispose o f surrendered lands in accordance w ith this A ct and the term s o f the surrender. (2) W here the original purchaser of surrendered lands is dead and the heir, assignee or devisee o f the original purchaser applies for a grant o f the lands, the M inister m ay, upon receipt o f p ro o f in such m anner as he directs and requires in support o f any claim for the grant and upon being satisfied that the claim has been equitably and ju stly established, allow the claim and authorize a grant to issue accordingly. (3) No person who is appointed to m anage, sell, lease o r other­ w ise dispose o f surrendered lands o r who is an officer o r servant o f Her M ajesty em ployed in the D epartm ent m ay, except with the approval o f the G overnor in C ouncil, acquire directly o r indirectly any interest in surrendered lands. R .S ., c. 149, s. 53. 54. W here surrendered lands have been agreed to be sold o r other­ w ise disposed o f and letters patent relating thereto have not issued, or w here surrendered lands have been leased, the purchaser, lessee or o th er person having an interest in the surrendered lands m ay , w ith the

BNA A C T A N D I N D I A N ACTS

17 3

approval o f the M inister, assign his interest in the surrendered lands o ra part th ere o f to any o th er person. R .S ., c. 149, s. 54. 55. (1) T here shall be kept in the D epartm ent a register, to be know n as the S urrendered Lands R egister, in w hich shall be entered particulars in connection with any lease o r oth er disposition o f surren­ dered lands by the M inister o r any assignm ent thereof. (2) A conditional assignm ent shall not be registered. (3) R egistration o f an assignm ent m ay be refused until p ro o f o f its execution has been furnished. (4) An assignm ent registered under this section is valid against an u nregistered assignm ent o r an assignm ent subsequently registered. R .S ., c. 149, s. 55. 56. W here an assignm ent is registered there shall be endorsed on the original copy th ere o f a certificate o f registration signed by the M inister o r by an officer o f the D epartm ent authorized by him to sign such certificates. R .S ., c. 149, s. 56. 57. T he G overnor in C ouncil m ay m ake regulations (a) authorizing the M inister to grant licences to cut tim b er on surrendered lands, o r, with the consent o f the council o f the band, on reserve lands; (b) im posing term s, conditions and restrictions with respect to the exercise o f rights conferred by licences granted under paragraph (a);

(c) providing for the disposition o f surrendered m ines and m iner­ als underlying lands in a reserve; ■(d) prescribing the penalty not exceeding one hundred dollars o r im prisonm ent for a term o f three m onths, o r both, that may be im posed on sum m ary conviction for violation o f any regulation m ade under this section; and (