This paper began life as two lectures, given in Saskatchewan in 2012 while I was holding the Ariel F. Sallows Chair in Human Rights at the University of Saskatchewan. (1) I had been struck by parallels between the contemporary advocates of giving "Indians" fee simple interests in reserve land, (2) and the "enfranchisement" schemes which originated before Confederation, in which male Indians who had attained a certain level of accomplishment would be given interests in reserve land that would eventually ripen into fee simple title and be severed from the reserve; these men would become eligible to vote, and shed their Indian status altogether. (3) The similarity between the older enfranchisement plan and the contemporary scheme to divide reserves into fee simple parcels, suggested to me that the colonial era was not actually over in Canada. I decided to pursue this idea further when it met with interest from my two Saskatchewan audiences.
These explorations of past and present colonizing within the context of the Indian Act and its predecessors broadened to include far more than just the enfranchisement scheme and the modern-day fee simple proposals. It was necessary to set the inquiry against the overall historical background. The government of Canada pursued a staggeringly ambitious program of separating Indigenous peoples from their traditional territories, and acquiring those lands for the Crown. These lands were then either alienated to third parties for settlement, resource development, nation-building, or other government purposes, or retained as "Crown lands". The land acquisitions were accomplished in part through a program of Treaty-making with Indigenous peoples, particularly in Ontario and the west and north-west, but they also involved de facto acquisition or occupation, without going through the formality of making Treaties. Small tracts of land were "reserved" in various ways for Indigenous peoples (4); whether these lands were reserved under Treaty (5) or not, all of the reserves came to be administered under the federal Indian Act. The Indian Act, in effect, was the repository for the strategies of colonization, and carried them forward to the present day, where their vitality remains unabated. To be clear, I am not contending that we are now living in an era of neocolonialism, or some other post-colonial state, with colonizing machinery that resembles that of the past. Rather, I contend that the process of colonization which began hundreds of years ago is still going on, using the same strategies and many of the same tools developed in past centuries.
I begin this paper with a description of colonization, and in particular, of "internal colonization" which is central to the relations between what is now Canada and the Indigenous peoples who held this land before the arrival of incomers from Europe. I then sketch Canada's historic and continuing efforts to secure possession and control of Indigenous land, whether by way of the historical methods or contemporary processes modelled on them. I link the processes of land acquisition to the Indian Act, and apply the understanding of internal colonization to that statute. In that context, I look at not only in its provisions about reserve lands (affected by both the enfranchisement scheme of yore and modern day proposals for fee simple interests in reserve land), but also the definition of who is an "Indian" under the Act, which has served the colonizer's goal of reducing the Indian population. I argue that Canada is still actively practising internal colonization, trying to complete the job which was begun over a century and a half ago. Despite the occasional contemporary public disavowal of its old practices (6), Canada is still colonizing after all these years. (7)
The Royal Commission on Aboriginal Peoples (RCAP) comments on the variety of methods used by European powers to expand into the rest of the world. (8) The Commission includes Canada among the four modern-day countries identified by "settler colonialism". (9) These four countries, says the RCAP Report, were "targeted" for settlement, as "safety valves for the rapidly growing populations of European home countries". (10)
The transplanting of Europeans to what became Canada was, at one level, a manifestation of "external colonization": that "salt-water" expansion by which Europeans established themselves in distant places. (11) Europeans created the governmental framework of Canada as an "external" colony, first of France and then of Great Britain, a colony forming part of the extended empire of an imperial European state. (12) Paul Kael emphasizes that the relations between imperial state and colony were Inherently unequal, with the imperial state controlling the sovereignty of the colony. (13) One celebrated narrative of the Canadian state features its evolution from colony to nation, to use Arthur R.M. Lower's evocative phrase (14). In that story, patriation of the Canadian constitution from the Parliament of the United Kingdom at Westminster in 1982 (15) marks Canada's final achievement of full sovereignty as a nation.
Lower's colony to nation narrative of Canada illustrates one of James Tully's crucial points about external colonies. Where the colony and the imperial power are located on different territories, "the colonies can free themselves and form geographically independent societies with exclusive jurisdiction over their own territories...." (16) This is not possible with internal colonization. Tully observes that the "ground of the relationship" between the colonizer and the colonized in an internal colony is "the appropriation of the land, resources and jurisdiction of the indigenous peoples, not only for the sake of resettlement and exploitation (which is also true in external colonization) but for the territorial foundation of the dominant society itself." (17) There is, in this model, no geographical separation between dominant and subordinated, imperial and colonized, to provide a land-based platform from which the colonized can assert or reassert sovereignty.
Interwoven with the narrative of Canada as an evolving, and ultimately fully sovereign, external colony of Europe, then, is the story of internal colonization of the Indigenous peoples on the land mass of what is now Canada. This internal colonization was effected at first by European powers; at Confederation, the Canadian state assumed the dominant role of internal colonizer (18). So-called "settler colonies", like Canada, are an instance of internal colonialism; such colonies were not primarily established to "extract surplus value from Indigenous labour", but were premised on displacing Indigenous peoples from the land (or replacing them on it). (19)
The RCAP Report describes the complex displacement of Indigenous peoples integral to the process of internal colonization. Indigenous peoples were physically displaced from their traditional territories; they were socially and culturally displaced, as missionary activities and European schools undermined the ability to transmit traditional knowledge and values from one generation to the next and substituted the values of Victorian Europe; and they were politically displaced as colonial laws forced them to abandon or at least disguise traditional governing structures and processes in favour of colonial municipal institutions. (20) RCAP notes that the negotiation of Treaties continued side by side with "the legislated dispossession through the Indian Act" (21). It states, "From the Crown perspective it seemed clear that these treaties were little more than real estate transactions designed to free Aboriginal lands for settlement and resource development." (22)
Tully describes one of the fundamental contradictions of internal colonization as "the dominant society coexists on and exercises exclusive jurisdiction over the territories and jurisdictions that indigenous peoples refuse to surrender." (23) He asserts that since the beginning, "the long-term aim of the administrators of the system has been to resolve the contradictions by the complete disappearance of the indigenous problem: that is, the disappearance of the indigenous peoples as free peoples with the rights to their territories and governments." (24) Tully identifies two strategies for bringing that about. One is that the Indigenous peoples could become extinct in fact (by dying out, intermarriage, urbanization) or by extinguishing their will to resist assimilation. The second "and more common" strategy, in Tully's view, is to attempt to extinguish the rights of Indigenous peoples to their territories and self-government." (25) Both of these strategies have been used historically and are used today.
LANDS SURRENDERED AND LAND RESERVED: THE FOUNDATION OF INTERNAL COLONIZATION
The Treaty of Paris, 1763, marked the ascendancy of Great Britain over France in the Americas. Following the signing of the Treaty, King George III issued in 1763 a Royal Proclamation establishing a framework for the governance of Britain's new possessions. The Royal Proclamation created four "distinct and separate Governments", including that of Quebec, the former French colony. The Governors of these new colonies were directed to summon General Assemblies, which, along with the Governors and their Executive Councils, would make "Laws, Statutes, and Ordinances" for their "Public Peace, Welfare, and good Government" "as near as may be agreeable to the Laws of England." The Governors were also given the power to make grants of land to persons in those colonies or coming from other British colonies "upon such Terms ... as have been appointed and settled in our other Colonies, and under such other Conditions, as shall appear to us to be necessary and expedient for the Advantage of the Grantees, and the Improvement and settlement of our said Colonies." (26) This creation of public governments for the colonies...