Dismantling the Indian Act and modernizing treaties is possible—and necessary

Opinion: As the Indian Act comes under scrutiny, treaties could serve as a reminder of what we could achieve—or a mark of our collective failure
Ross Holden
Treaty 9 Indigenous men at Fort Hope in Ontario, 1905. (Dept. of Indian and Northern Affairs / Library and Archives Canada)
Treaty 9 Indigenous men at Fort Hope in Ontario, 1905. (Dept. of Indian and Northern Affairs / Library and Archives Canada)

Ross Holden has worked with Indigenous communities and organizations for close to 20 years, as a policy advisor for the Government of Canada, an independent consultant, and for the last four years as an Aboriginal Engagement Advisor for the Nuclear Waste Management Organization. The views expressed herein are his own.

Concern about the continued existence of the 141-year-old Indian Act, and the dysfunctional reserve system it spawned well over a century ago, is not merely a legal or policy abstraction. The imposition of inappropriate systems of governance and the ghettoizing of hundreds of thousands of First Nations people on “reserves,” many of them distant from markets for goods and services, have resulted in widespread social and economic dysfunction. It’s nothing less than a national disgrace.

In a recent opinion piece in these pages, Jean Teillet—an accomplished litigator who has argued numerous important questions of Indigenous law before the Supreme Court of Canada—presented a frank, if pessimistic, assessment of Canada’s prospects for eliminating this last major vestige of colonialism in Canada. Despite her skepticism, Teillet’s intention in writing the piece is to spark a dialogue on this most egregious failing of the Canadian polity, so kudos to her for doing so. Unfortunately, it may serve only to further entrench the long-standing case—or excuse—for inaction, clung to for decades by federal policymakers and First Nations leaders alike.

COUNTERPOINT: Why dismantling the Indian Act will be nearly impossible

So in the interest of sustaining the hope that change is possible, I wish to offer an alternative perspective on the dilemma.

Plans to escape the made-in-Canada colonialism quagmire typically fall within one of two camps. The first, originally proposed in the infamous “Statement of the Government of Canada on Indian Policy, 1969″ (aka the “White Paper”), is the unilateral elimination of the Indian Act and the reserve system, as well as assimilation into the Canadian mainstream. This option was soundly repudiated by First Nations leaders at the time, and though thinly veiled variants are still occasionally floated, it is neither a morally nor A likely legally viable option. The other scheme, favoured by many, would see the Indian Act replaced holus bolus with some form of self-government—maintaining the reserve system in its present form—with ever-increasing funding to prop up those (mostly remote) communities mired in poverty and hopelessness. It is the likelihood of success of the latter approach upon which Teillet has poured cold water.

To be honest, I can’t blame her for being pessimistic. After decades of policy papers, legislative initiatives and self-government negotiations, little, if anything has changed. Indeed, after all these years, and all this sadness, there remain a number of questions about transitioning to self-government that continue to bedevil federal and First Nations leaders: Who determines community membership, and who controls the list? What about non-status Indians—would they receive benefits too? What will it cost to maintain remote reserves, and is that justified? What about the underlying title of reserve land? And what about the resources on traditional lands? Who makes decisions about, and benefits from, resource development?

These are all legitimate, but difficult, questions, and I am by no means suggesting that there are easy answers to them. But in trying to envision a healthy, just and sustainable future for Indigenous peoples in Canada, it may be worthwhile to look to the past, to imagine how things could have turned out had Section 91(24) of the Constitution Act of 1867—the “head of power” which assigned the federal Crown jurisdiction over “Indians, and lands reserved for Indians” and under which the Indian Act was promulgated—been used, not to assimilate Indigenous peoples into “mainstream” society, but to implement historic treaties in a manner consistent with their spirit and (professed) intent.

Yes, treaties. Though not discussed in Teillet’s piece, treaties are critically important when considering the direction in which we as a society wish to go. The treaties entered into between Indigenous peoples and the Crown between the 18th century and the early 20th century, collectively referred to as the “historic treaties,” cover approximately half of Canada’s land mass. Though not as detailed and explicit as the subsequent modern treaties Canada would enter into in the second half of the 20th century, they nonetheless provided a legitimate basis for moving forward with parallel systems of governance, a shared desire that resource development not happen at the expense of traditional pursuits, and protection from encroachment by settlers. Unfortunately, instead of using the powers granted it under 91(24) in a manner consistent with the spirit of the historic treaties, the newly formed Canada used them to both segregate and assimilate Indigenous peoples—an attempt at cultural genocide, some would argue.

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How would things have turned out had 91(24) been employed in an honourable, altruistic manner? To start with, 91(24) could have been used by the federal Crown to enact legislation for each treaty group providing for a system of governance chosen by that group. Prior to 1876, “Grand Chiefs” were rare in most of Canada, where governance structures could be fluid and temporary depending on the circumstances. But there is no reason why the many Mi’kmaw, Anishnaabe, Cree, Dene and other nations that entered into historic treaties could not have appointed from among their leaders a Grand Chief to represent them in dealings with the Crown, even if only on an ad hoc basis. Rather than having over 600 individual Chiefs and their bands dealing directly with the federal Crown, as is the case today, Indigenous peoples could have been left to govern themselves as they wished, relying on their Ogichidaa to represent their interests to the outside world, and mediate a consensus-driven decision-making process within.

Reserves were promised by, and sometimes enumerated in, the historic treaties, but they were given legal effect and standing under the Indian Act. However, as it stands, the underlying title of “lands reserved for Indians” remains with the federal Crown. There has been a great deal of debate in recent decades as to the merits of this arrangement: on the one hand, retaining title collectively in the hands of the Crown provides some assurance that the land base will not erode; on the other hand, not owning the property on which people build their houses carries risk and acts as a disincentive to improve those dwellings. It is doubtful that Indigenous signatories to historic treaties would have opted for a “fee simple” system of private landholdings, but surely a traditionally-based landholding system that protected the interests of both the individuals and the collective could have been codified in the legislation applicable to each treaty group?

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Thus established, those communities and their populations would have adapted to the climate and economy, as they always had. All First Nation communities, even the most remote and distant from markets, were at one time “sustainable,” in that their population levels and infrastructure were consistent with the ability of people to live off the land, and later the costs associated with importing supplementary foodstuffs and other materials. In a free market for goods and services, the gap between costs vs. benefit would discourage many (but not all) people from living there, allowing the community to settle in at a sustainable population level consistent with its location. This would likely have been the case had the federal Crown not intervened in the economies of individual communities and instead allowed the broader treaty group to develop its collective economy in a manner consistent with its values, and within the limits of socioeconomic and environmental conditions.

And yet the treaty groups and reserve communities would not have been completely on their own: Treaty payments, which are paid to individual “status” Indians as a result of the Indian Act and the system of registration it spawned, could have been paid instead to the collective treaty group, or at least to individual bands, to support collective endeavours and social security. With the advent of the welfare state after the Second World War funding would similarly have been provided to support the unemployed, universal health care, housing subsidies, etc. but in the form of block funding to the Treaty group, rather than individual bands, as is the case today. One would have hoped as well that the federal and provincial governments could have devised a resource co-management and revenue-sharing arrangement with Indigenous peoples to provide for “own source” revenues, but given the colonialist mindset prevalent at the time, it’s no surprise they did not.

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Clearly the tools, and opportunity, existed, 140 years ago to implement the treaties in a manner that would have allowed First Nations to succeed in the modern world just around the corner. Instead, those tools were used in the decades that followed to assimilate Indigenous peoples into mainstream Canada. While that attempt ultimately failed, it left First Nations isolated, and devastated.

Is it possible to turn back the clock, and rebuild the Crown-Indigenous relationship as it should have been, updated for the 21st century?  Many would argue no: that we—federal, provincial and Indigenous governments, and Canadian citizens—are too far entrenched in our vested interests and parochial viewpoints to even think about doing things differently. That we’re too stuck in our ways to think outside the collective box that has held back progress for 150 years to devise innovative solutions, to make difficult decisions, and to work hard to see them through. But is it not incumbent on all of us to make a sincere and meaningful effort to think and act outside that box, if only to save the lives of children whose suicide or murder would otherwise continue to mount as regrettable statistics? The answer can only be yes.

Eliminating colonialism and its continued harm to Indigenous peoples can be achieved by realizing what we as a society could have become had the historic treaties been implemented in an honourable and equitable manner. It starts with undertaking an assessment of the sustainability of all First Nation communities through comprehensive and holistic community planning, putting all options and scenarios on the table—including access to markets for goods and services, self-government, climate change, treaty and tribal council governance, and the option of shared urban reserves—in a realistic manner. It would mean the federal and provincial governments engaging with treaty groups and tribal councils in discussions around strategic planning in the context of self-government, and involvement in resource co-management and resource revenue sharing. Above all, it would mean shifting the Crown-Indigenous relationship away from government-to-First Nation, to government-to-treaty group.

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Granted some Chiefs might fear the loss of influence under such a scenario and balk at this process, but there is no reason their communities’ interests, uniqueness and local sovereignty cannot be protected in the process. Similarly, the federal and some provincial governments may have concerns about how this may impact their bottom-line, not to mention their monopoly over resource management and associated revenues. Yet both levels of government are already moving in the direction of greater involvement of Indigenous peoples in resource management and revenue sharing. When viewed as an investment in sustainability and stability, not to mention basic human rights within their borders, I’m confident all those with a vested interest can be brought around. Early gains can be achieved by encouraging treaty and tribal groupings to come forward with sustainability and self-government proposals, but it will be decades before Canada can say that all its Indigenous communities are on a sustainable footing.

Treaties were intended to be the foundation upon which the Crown-Indigenous relationship would be built; the rights they provide for are legally binding, so they’ll always be with us in one form or another ─ a constant reminder of the promise of two nations living side-by-side in peace and prosperity, first envisioned in the Royal Proclamation of 1763. Canada’s success at reconciliation with Indigenous peoples will ultimately be judged by our collective ability to realize that promise, and the potential it holds. By all means let the dialogue continue, but we as treaty peoples have an obligation to act immediately, wherever and whenever we can, before more harm is done. As I have argued above, the first step is understanding where we’ve come from (or could have come from), so that we may fully grasp the possibilities that lay ahead. Failing that, the treaties will instead remain a constant reminder of our collective failure.