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Canadian Indian Act Modernism

The modernist period is a milestone in Canadian history, notably for playing an integral role in Canada’s identity formation as an independent settler colonial state. Since its inception as a nation, Canada has been shaped by the modern/unmodern binary (with the Indian on the “unmodern” side), as explicitly articulated in the Indian Act, 1876. Canada is reliant upon the Indian Act to claim its modernity as a nation, as it refuses to exist alongside sovereign Indigenous nations. The Indian act was used to create the unmodern Indian subject in order for Canada to justify the legal controls and assimilation it has used to achieve its main goal: to maintain illegitimate control and authority over Indigenous nations and lands. The Indian Act has never been, nor will ever be, about Indians. It is about the Canadian state attempting to establish itself as legitimate.

In Savage Anxieties: The Invention of Western Civilization, Robert A. Williams Jr says the law has been a main instrument of empire.[1] Indians are mentioned in all of the “legal” documents between individual Indigenous nations and Britain, and other European states, and then Canada. Throughout this essay I build upon Williams’s work to demonstrate precisely how the Canadian state is reliant upon this modern/unmodern binary for its legitimacy, and I show how this is reinforced through the legal documents that culminated in the Indian Act of 1876. I argue that it is necessary for modernist readers and scholars to understand how Canada used the law to legitimize Indigenous dispossession to establish itself as a nation state during the modernist era.

The Royal Proclamation

The Royal Proclamation of 1763 established the law on British settlement and dealing with Indigenous Nations.[2] The Crown had to enter into treaties with the Indigenous Nations before settling onto lands occupied by Indigenous nations. Treaty-making between Indigenous Nations and the British Crown played a significant role in Indigenous-Crown relations that later happened during the modernist period in Canada. Canada’s original constitution was an act of British Parliament, The British North America Act, 1867 (BNA), until it patriated its Constitution in 1982, meaning that Canada only formally became a nation under the 1982 Constitution, despite its 1867 date of Confederation. Canada being its own nation was still a relatively new idea and was reliant upon the BNA until 1982. Section 91 (24) of the BNA gave the federal government power of “Indians and lands reserved for the Indians,” which created a paternalistic structure that still exists today; however, since many existing sovereign Indigenous nations had neither ceded nor surrendered land to the British settlers, this founding legal document of Canada’s assertion of sovereignty was an illegal act of erasure by its own laws.

Canada’s assertion of jurisdiction and sovereignty is merely an assertion, and because Indigenous peoples have always resisted the sovereignty of the Canadian state upon their nations, we have become wrongfully known as the “Indian Problem.” Boiled down, this means simply that, to avoid the land question—and paraphrasing Duncan Campbell Scott—Canada must kill the Indian.[3] As Canada searched for solutions to the so-called Indian problem, it attempted to assimilate and control Indigenous people. I argue that the Indian Act produced a new modern state subject based on the modern/unmodern binary. There were four other acts that laid the foundation for the legal language that solidified these concepts in the Indian Act of 1876.

The Indian Act(s) and the New (Un)Modern Subject

The 1st Act in 1868 was “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.” This act states who is and is not an Indian, using three definitions: a person with Indian blood (racial designation), a parent with Indian blood (racial genealogy), or a woman married to an Indian (cultural/legal designation). The wording regarding lands in this act is important. It reads as follows:

All lands reserved for Indians or for any tribe, band or body of Indians, or held in trust for their benefit, shall be deemed to be reserved and held for the same purposes as before the passing of this Act, but subject to its provisions; and no such lands shall be sold, alienated or leased until they have been released or surrendered to the Crown for the purposes of this Act.

This is where the notion of reserves comes from: rather than lands granted to Indians from the generosity of settler states, reserves are lands remaining from their original territories held in trust for Indians. This language does not change much throughout subsequent Indian Acts, and what has remained consistent is that the land does not actually belong to Indians but is reserved for them by the crown (originally the British crown which was then supposedly passed onto the Canadian government). There are later provisions about when and how the state can intervene in affairs regarding Indian land. For example, Indigenous peoples needed consent of the superintendent to sell any timber including soil, trees, saplings, shrubs, or underwood from a reserve. In 1876 this was expanded to include timber or hay, stone, minerals, metal or other valuable, subject to legal penalty.[4] A 1927 amendment to the Indian Act also prohibits Indian people from discussing land claims or hiring lawyers for the purpose of land claims.[5] All of these amendments continued to diminish Indians rights to and on their lands and deny them means to fight against it.

The 2nd Act in 1869 was “An act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of Act 31st Victoria, Chapter 42.” This Act forced colonial patriarchy onto Indigenous governance and familial systems by requiring the following for Indian status:

Provided always that any Indian woman marrying any other than an Indian, shall cease to be an Indian within the meaning of this Act, nor shall the children issue of such marriage be considered as Indians within the meaning of this Act; Provided also, that any Indian woman marrying an Indian of any other tribe, band or body shall cease to be a member of the tribe, band or body to which she formerly belonged, and become a member of the tribe, band or body of which her husband is a member, and the children, issue of this marriage, shall belong to their father’s tribe only.

It is important to note that non-Indigenous women gained status upon marrying Indian men. This act also states that a male chief can only be elected by men of the tribe. These acts not only contradicted many longstanding practices within Indigenous communities (such as allowing women full political participation or social governance via matrilocal relations); they were intended to destroy traditional forms of governance systems and assimilate Indians by using chief and council systems. As Beth Piatote has argued, such efforts were not simply attacks on Indigenous polities; they were first and foremost attacks on Indigenous families.[6]

The 3rd Act 1873, an Act to provide for the establishment of “The Department of the Interior,” was passed to include Indians and Indian lands in Manitoba, British Columbia, and the Northwest Territories. The 4th Act 1874, “An Act to amend certain laws respecting Indians, and to extend certain laws relating to matters connected with Indians to the Provinces of Manitoba and British Columbia,” was mainly to do with intoxicants, banning the sale and consumption of intoxicants to Indians, and how these laws were regulated and enforced. These laws differed from those applied to non-Indian Canadians, and differentiated Indigenous Canadians through legal fiat.

A 5th Act was brought in 1876 “to amend and consolidate the laws respecting Indians” and also known as “The Indian Act, 1876.” Though these acts well precede the conventional dates for modernism, especially in Canada, the fullest effects of their assimilationist laws and actions happened during the modernist era: residential schools, potlach bans (more on this below), the imposition of chief and council systems, disenfranchisement, pressure to leave the reserve, and so on. Indigenous people were not even legally considered legal persons in Canada until amendments made to the Indian Act in 1951.[7] Beginning in the 1860s, residential schools were up and running, children were stolen from Indian families and shipped hundreds of miles from home with the goal of assimilating Indians into becoming English speaking, Euro-Western, “modern” Canadian subjects. When residential schools proved less successful in achieving this goal than intended, Scott passed a bill to make attendance mandatory in 1920, stating:

I want to get rid of the Indian problem. I do not think as a matter of fact, that this country ought to continuously protect a class of people who are able to stand alone. . . . Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department, that is the whole object of this Bill.[8]

Residential schools stole children and forced a language, culture, and religion upon them with the intention of destroying Indians and, by extension, Indian nations. Couched in the language of Christian benevolence and civilization, residential schools that were operated by the state and church sought to civilize—that is, modernize—the Indian as a way of eliminating the very “Indian problem” created by the state in the first place.

Indian Act Amendments 1884–1951

Another way the state sought to destroy the Indian subject, via the Indian act, and create modern Canadian Indian ones is through the Potlach ban. In 1884, an amendment was made to the Indian act that stated, “Every Indian or other person who engages in or assists in celebrating the Indian festival known as the ‘Potlatch’ or in the Indian dance known as the ‘Tamanawas’ is guilty of a misdemeanor, and shall be liable to imprisonment for a term of not more than six nor less than two months” (Venne, Indian Acts and Amendments, 93). Indigenous peoples resisted this ban and continued to have Potlatches, which interfered with the religious conversions and the destruction of Indigenous governance and cultural systems. So, in 1886 an amendment was made to criminalize the celebration of “any Indian festival, dance or other ceremony of which the giving away or paying or giving back of money, goods or articles. Or participates or helps in any celebration or dance of which the wounding or mutilation of the dead or living body or any human being or animal: 2 to 6 months imprisonment.”[9] This language change was meant also to include the sun dance as well as target multiple forms of Indigenous governance and culture specific to certain communities. In 1889 the first charge was laid for the violation of the potlatch law. Chief Justice Matthew Begbie threw out the charges, as “potlatch” was not defined. The Act was once again amended to remedy this legal technicality, hundreds were arrested and others sacrificed their regalia in lieu of getting arrested.[10] Potlatches were part of West Coast Indians governance systems and with continued resistance to band council systems it was crucial to the Canadian state to specifically target Indian governance systems to further the assimilationist agenda and to solidify Canadian state claims to Indigenous territories, lands, and resources using a systems they created.

The Indian Act presented far too many indignities to be comprehensively detailed here, but allow me to limn just an indicative few: if an Indian wanted to be a doctor, lawyer or obtain any other university degree, or become a Minister, or nun they had to become enfranchised, which meant giving up Indian legal and political status.[11] In 1880, an amendment was made to specify that the “term ‘non-treaty Indian’ means any person of Indian blood who is reputed to belong to an irregular band, or who follows the Indian mode of life, even though such person be only a temporary resident in Canada.” These terms are also important as they sought to destroy Indigenous communities in families, much like residential schools, by giving men and women different status rights. As well as, an Indian as defined by the Indian act was not considered a person until 1951.[12] All of these are specific to Indians in Canadian law. They attempted to freeze Indians in a seemingly primitive past, by not allowing them to participate in Canadian society, while also expecting them to assimilate fully into Canadian society. They thereby sought to create the illusion of superiority of the state over the seemingly dependent status Indians. As the act is contradictory, it both asks for modern subjects and attempts to lock Indians in a state of otherness while ignoring unnamed racial category of whiteness and all the legal, political, and private property privileges automatically granted to it.

Indian Act: The Heart of Canada

Towards the end of the modernist period, around 1967, Canada was being shaped simultaneously by the decline of the British Empire and the rise of American imperialism, creating uncertainties over who had jurisdiction and responsibilities towards Indigenous Peoples via treaties. While Canada believes it inherited treaties that were made between Indigenous nations and other countries in Europe, it also began to take up its own treaty-making measures with Indigenous nations. The first numbered treaty was signed in 1871. It’s important to note that Canada could not enter into international treaties until the Statute of Westminster in 1931 but entered into eleven numbered treaties from 1871 until 1921 in northern and southern locations from Ontario to Alberta.[13] As status Indian numbers continued to grow and assimilationist policies proved unsuccessful, and absent legitimate treaties between the Canadian state and Indigenous nations in British Columbia during this time, the McKenna-McBride Royal Commission Report was used to establish reserves in British Columbia. Many Indigenous nations who made treaties with the British, French, and other European powers still considered these treaties to be held with the original nations, not with Canada; however, the High Court of Justice in England officially bequeathed treaty obligations of the Queen to the Indigenous Nations onto the Canadian government in January 1982 at a time when the Canadian state was consolidating its sovereignty in patriating the Constitution from the British Parliament, without the consent of Indigenous peoples.[14] The United States, and other settler colonial states, used treaty making with Indigenous peoples to continue attempting to assert its legitimacy. White scholars and writers have employed similar logics in their writings by using Indigenous histories, knowledges, and stories without their consent and or ignoring the role that their work has played in the construction of the white imaginary that furthers colonial logics of Indigenous dispossession.

What does this tell us about modernity in Canada? What would make Canada a “modern” nation if it did not have Indians to define itself against? All of the examples I have provided show that the state needed to continuously amend the Indian Act, where Indigenous nations were asserting their sovereignty, in order to create laws and policies attempting to delegitimize Indigenous nations as a condition of possibility for legitimizing itself over and over again. The assimilationist edicts of the Indian Act was designed not simply to bring Indians into Canadian society but to eliminate status Indians, which would mean no more Indians to claim aboriginal rights and thus no more Indian lands to wrestle over. In so doing, the Indian Act has become the heart of the Canadian body politic upon which it to continuously asserts itself as a legitimate nation-state. Canada needs to maintain the Indian Act via amendments for its very survival. Indian nations have always existed, long before Canada has, and Canada would not exist as a nation without defining itself against Indianness and asserting its sovereignty over Indigenous territories. This is the basis for modernity—and by extension literary modernism—in Canada.

Conclusion: Literary Modernism has an Indian Problem

Cherokee scholar Kirby Brown says modernist studies has an Indian problem.[15] What can Canada’s specific articulations of this Indian problem, and Indigenous peoples’ resistance and continuance, show us about the colonial dynamics that created and continue to govern modernist studies? Two poets who were writing and published during the modernist period in Canada are good examples revealing one the naturalized white supremacy and unacknowledged indigeneity within modernism. These two poets were E. Pauline Johnson, an Indigenous poet widely known for her poetry performances, where she would dress in Mohawk clothing for part of her act, and then switch to Victorian clothing. The second was Duncan Campbell Scott, more widely known for being the head of the Department of Indian Affairs and infamous for his assimilationist policies, and whose colonial logics can be seen throughout his poetry.[16] If we apply Scott’s colonial logic, who is also quoted earlier in this article, to modernism and say that modernism seeks to absorb indigenous peoples and knowledges into it, with or without recognizing it is happening, what does that do to our understanding of modernism in general? How can modernist studies learn from past constructions of modernity that relied upon the modern/unmodern binary in Canada, solidified in the Indian Act, in order to redefine modernities and decenter whiteness? There are endless possibilities for directions for work that can be done that looks critically at how whiteness has shaped modernity in the past, informs the present, and how it can look critically at itself and work from a new center of awareness and redefined modernity. It is possible to do it is just work that needs to be done. Let’s all move beyond Canadian Indian Act modernism.


Notes

[1] Robert A. Williams, Jr., Savage Anxieties: The Invention of Western Civilization (New York: Palgrave Macmillan, 2012).

[3] See “Statement of Apology to Former Students of the Indian Residential Schools,” June 11, 2008 Ottawa, quoted in Tamara Starblanket, “‘Kill the Indian in the child’: genocide in international law,” in Indigenous Peoples as Subjects of International Law, ed. Irene Watson (Abingdon, UK: Routledge, 2017), 171–200.

[4] See Sharon Helen Venne, Indian Acts and Amendments 1868-1975: An Indexed Collection (Saskatoon: University of Saskatchewan, Native Law Centre, 1981), 6.

[5] See Venne, Indian Acts and Amendments, 29–30.

[6] See Beth H. Piatote, Domestic Subjects: Gender, Citizenship, and Law in Native American Literature (New Haven, CT: Yale University Press, 2013).

[7] See Venne, Indian Acts and Amendments, 315–54.

[8] Duncan Campbell Scott, quoted in “1920-1927 Indian Act Becomes More Restrictive,” First Nations Education Steering Committee.

[9] Venne, Indian Acts and Amendments, 158, Section 114.

[10] See Tansi Nîtôtemtik, “Colonialism and the Potlatch Ban,” University of Alberta, Faculty of Law, Faculty Blog, November 6, 2018.

[11] See Venne, Indian Acts and Amendments, 47–50.

[12] See Venne, Indian Acts and Amendments, 315.

[13] See “The Numbered Treaties (1871-1921),” Crown-Indigenous Relations and Northern Affairs Canada, Government of Canada.

[14] See “The Queen v. The Secretary of State for Foreign and Commonwealth Affairs, ex parte: The Indian Association of Alberta, Union of New Brunswick Indians, Union of Nova Scotian Indians” (1981), 4 C.N.L.R. 86, England and Wales, Court of Appeal (Civil Division) Royal Courts of Justice, London, Lord Denning M. R., Lord Justice Kerr and Lord Justice May, January 28, 1982.

[15] See Kirby Brown, “American Modernities and New Modernist Studies’ ‘Indian Problem,’” Texas Studies in Literature and Language 59, no. 3 (2017): 287–318, 293.

[16] See Margery Fee, “Publication, Performances, and Politics: The ‘Indian Poems’ of E. Pauline Johnson / Tekahionwake (1861–1913) and Duncan Campbell Scott (1862–1947),” in Anthologizing Canadian Literature: Theoretical and Cultural Perspectives, ed. Robert Lecker (Waterloo, Canada: Wilfrid Laurier University Press, 2015), 51–77.