This year for Black History Month I will be examining Colour-Coded: A Legal History of Racism in Canada, 1900-1950 by Constance Backhouse. Please read the preamble post if you haven’t already.
The first case that Backhouse examines is a Supreme Court decision regarding whether or not to classify “Eskimos” (now properly known as Inuit) as Indians under the Indian Act.
The case concerned a conflict between the province of Quebec and the government of Canada, regarding the status of Inuit people living in northern Quebec. The disruption of their way of life (subsistence hunting and fur trading having been made all but impossible by the encroachment of European settlers and the disruption of the migratory patterns of carbiou) had created a dire situation for the Inuit, and there was some dispute over who had to foot the bill: the federal government or the province. The relationship between the British Crown (i.e., the Canadian government as a representative of the British Crown) and aboriginal people was codified by a legislative act, meaning that the Crown had certain fiduciary duties toward ‘Indians’, but not to non-‘Indians’.
Before we can understand this particular case, Backhouse reminds us of the circumstances under which races were legally defined. A person could be white, red, black, or yellow (according to the categories in the 1901 census – categories that existed until at least 1951); however, in order to be ‘white’, one had to be ‘purely’ white, meaning that no parent or grandparent could have been known to be part of one of the other groups. Those of you who studied either the racial laws of the antebellum U.S. South or the racial caste system of apartheid South Africa will recognize the philosophy of the “one drop rule”, or the innovative idea of the “blood quantum“. Backhouse also invites us to note the way in which male chauvinism intersected with the white chauvinism, defining lineage and who could have ‘status’ based on patrilineal (and not matrilineal) descent.
Indians were defined under the Indian Act based on what was essentially the whim of Parliament. It is important to recognize that this act was passed in the total absence of input of aboriginal people, who had a very different understanding of identity. Groups that were not similar in any way were suddenly legally defined as a homogenous group of ‘Indians’, despite their radically different ways of life and relationships to both the land and the Crown. Of course part of being so identified was to lose your legal personhood – ‘Indians’ were not allowed to vote or hold office, meaning that there was effectively no way they could have changed the system, even if they had wanted to (which, I’d imagine, they probably did)**.
However, the Inuit presented a novel problem: when the Indian Act was signed, the Inuit were not part of the equation. They had been declared citizens of Quebec without any thought given to consulting (or even informing) the affected group. As a result, neither the province nor the federal government had a clear idea of who was legally obligated to pick up the bill for a rescue package (a pittance of what amounted to $9 per person in the affected area). And so the federal government went to the Supreme Court to have them decide how to interpret the Indian Act.
I am not going to go into too many of the details present in Backhouse’s analysis*, but suffice it to say there are some things in there that would make any decent person tremble with rage. A major part of how previous cases on ‘Indian identity’ were decided was based on whether or not a person had a ‘reputation’ as an ‘Indian’. Whether they dressed and behaved like an ‘Indian’, whether they spoke aboriginal languages, what sort of job they had, and their general demeanour. Many of the cases had to do with the enforcement of federal and provincial bans on the sale of alcohol to ‘Indians’.
The Court called lawyers to represent the case of the Crown (arguing that ‘Eskimos’ were not ‘Indians’) and the province of Quebec (arguing that they were). Backhouse points out that neither lawyer had any experience with aboriginal people from any group, despite the number of rural lawyers who had worked with aboriginal people (or who had at least handled cases involving the Indian Act before). Of course this fits quite nicely with the prevailing attitude that created the Indian Act in the first place – white Canadians making up their minds about people they don’t have much knowledge about.
The main argument of the province of Quebec seemed to be that since both ‘Indians’ and ‘Eskimos’ were sauvages (a word that doesn’t mean exactly the same thing as ‘savages’, but works out to about the same thing), they should be considered ‘Indians’ – remember that ‘reputation’ was a major component of how legal decisions about status were made. The Crown’s argument basically boiled down to smoke, mirrors, and phrenology (as well as a fair amount of actual anthropology which, if it had been evenly applied to the various aboriginal groups, would have completely defeated the ‘Indian’ label altogether). Backhouse makes the interesting observation that the matter was further complicated by the fact that several groups, including the Nords, had been intermingling with Inuit groups for generations, resulting in a group that was culturally conserved but racially divergent.
The Court eventually decided in favour of Quebec (Backhouse notes that the province’s lawyer was much more dynamic and persuasive than the lawyer for the Crown), based more on legal precedent than any scientific or pseudoscientific evidence offered. The Court’s decision was based on what the framers of the British North America Act would have thought. Rattle that one inside your brain-case for a while – they kicked the decision to the enlightened and progressive mind of Sir John A. MacDonald. They reasoned that since the framers wouldn’t have marked a difference, neither should the Court.
Whether or not you agree with the decision (the SCC recently used very similar justification to rule that Metis people are ‘Indians’), the fact remains that Canada’s court system didn’t think it necessary to involve marginalized and racialized people in conversations – such consultation apparently took a back seat to simply legislating these peoples’ lives. This wasn’t a gojillion years ago either – the decision was handed down in 1939. We had enough science to build airplanes and intercontinental telegraph, but evidently not enough to rely on something other than innuendo and phrenology when making decisions with profound legal implications.
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*It is, however, worth remarking on the impressive level of detail these accounts go into. Fully 1/3 of the book is footnotes, scrupulously detailing the support for Backhouse’s conclusions.
**Many accounts of history rob marginalized people of the possibility of agency. Some of this is historical blindness borne of privilege, but a major component of it seems to be that the laws of the day also precluded the possibility of agency. if you’re not a person, you can’t really exert much legal power. That is certainly the case here.
I always appreciate your forays into the Canadian legal system. Very interesting read as always.
A minor nitpick though: the recent ruling on the Métis was handed down by the Federal Court, a first instance tribunal, and not by the Supreme Court of Canada.
Hmm yes, quite right. Thank you for the correction.
The legal history of Indians in Canada is highly complex and requires a lot of background understanding. The case you are presenting seem starkly biased to paint facts in the most uncharitable light possible. The legal history of defining and regulation of Indians comes from a place of paternalism and fiduciary duty under law – not some sort of idea of white superiority. The reason that any definition of Indian was ever contemplated was to prevent non-Indians from taking over Indian bands and reserve lands. Without this sort of regulation, non-Indians could marry into a band and take it over from the inside, or they could make deals with individual Indians to buy collectively owned land. This was a real world problem that threatened the survival of Indian bands.
To say that the definition of “Indian” was some “whim” of Parliament in 1876, is to show no understanding of the 100 years of history that preceded that definition. Also, the definition chosen is explicitly tied to historic band membership – hardly a “homogeneous” definition with no input from Aboriginal people. In fact, prior to 1951 there was no such thing as being an Indian outside of being a member of a particular Indian band. Aboriginal rights relate to that collective membership and vary significantly from place to place. This is not to say that the administration of Indian Band membership was well aligned with the desires and values of the various Aboriginal groups – but your characterization of the process is slanted beyond reason.
1901 census definitions of race are not “legal definitions” any more so than what someone gives as their occupation in the census form legally defines what they do for a living. In the context of Indians in Canada, blood quantum or even race has never been part of the legal definition under the Indian Act since 1876. The only thing approximating this that I am aware of was legislation from 1869 which barred anyone with less than one quarter Indian blood from taking part in treaty money or reserve revenues. The invoking of South Africa and Southern US is both erroneous and needlessly provocative.
In my opinion, the real defining characteristic of Indian membership administration was the other item you mentioned – patrilineal descent. Women and children took their legal status from husbands and fathers. An Indian woman who married a man from a different band, automatically became a member of her husband’s band. An Indian woman who married a non-Indian was enfranchised and no longer considered an Indian under law. This also applied in other situations, for example, there was a time when children born to Canadian mothers and non-Canadian fathers were not entitled to Canadian citizenship.
As a matter of law, Indians were not barred from becoming enfranchised and assuming the political rights of other men. In fact, an Aboriginal man could have the right to vote and hold office well before a white woman could (1929) – if he gave up his status as a member of an Indian band.
Blair T: I got as far as “paternalism and fiduciary duty under law – not some sort of idea of white superiority” before thinking you seem to be hiding some ignorance behind a lot of words. When your “paternalism” is white people dictating to “red” people acceptable behaviours, that’s white supremacy. So, in fact, it comes from a place of paternalism, fiduciary duty, AND white supremacy. The Indian Act wouldn’t have been written if the whites didn’t believe themselves superior (and therefore paternally responsible).
When I can clear your first paragraph without believing you to be trying some sort of mutated Gish Gallop, I’ll read further.
medivh – by your definition any action taken by the 19th century Government of Canada would be an act of “white supremacy.”