Week 9: Indigenous Justice

• How did the Crown perceive Indigenous peoples from the 1860s and onwards?

  The Crown saw Indigenous peoples as people who were no longer allies. Thus, the Crown did not feel an obligation to respect and protect.
• What are the three factors that contributed to the changing relationship between the Crown and Indigenous peoples?

  The three features contributed to the changing relationship between the Crown and Indigenous peoples are:

  1. No longer necessary as military allies after the Seven Years War and the War of 1812 ended.
  2. Canada's parliament buildings built on ancient Algonquin burial site.
  3. Any European male over 18 could occupy and claim land, regardless of Indigenous title.
• What are important key dates in the timeline of Indian laws?

  Key Dates:

  • 1763: The Royal Proclamation
  • 1851: An Act for the Indians of Lower Canada
  • 1857: Act to Encourage the Gradual Civilisation of the Indian Tribes in the Canadas
  • 1867: Constitution Act
  • 1869: An Act for the Gradual Enfranchisement of Indians
  • 1876: Indian Act that consolidated all prior laws.
• Indian Treaties


  An agreement between Indigenous people and the crown. This included articles related to: self-government, education, economic assistance, health care, livestock, tools, and training.
• The Royal Proclamation (1763)


  Established the Constitutional framework for future treaty negotiations. This is referenced in section 25 of the Constitution Act, 1982. This proclamation explicitly states Indigenous people reserved all lands not ceded by or purchased from them. This is also known as the "Indian Magna Carta" and the "Indian Bill of Rights"
• Indigenous peoples were decimated by what?

  Indigenous people were decimated by diseases that arrived with the colonists. 50% to 90% of some First Nations died of diseases from Europe which they had no immunity to.
• What was disappearing with the arrival of colonists?

  With the arrival of colonists, natural resources were disappearing. This was due to the RCMP clearing the West for settlement.

  • Prior to colonisation there were 50 million buffalo in North America; eventually slaughtered to near extinction.
  • Starvation used as a tactic to force Indigenous people onto reserves.
• What were some of the issues with the Indian treaties?

  Some of the issues with the Indian treaties were:

  • Major discrepancies between the oral tradition recounting treating signings by Elders and the documents themselves.
  • Numerous Indigenous nations did not sign treaties. The Crown claimed they did not follow through with treaty making agreements in the Maritimes and Quebec because they claimed France passed them ownership of the land
• What was the purpose of The Indian Act of 1876? What did this act do?

  The purpose of The Indian Act of 1876 was assimilation. This Act consolidated all previous federal legislation and portrayed as in need of specific regulation – this applied to no other Canadians. This was the easiest way to assimilate Indigenous people is through revoking the Indian status of women and their children.
• What more did the Indian Act do? (1/2)

  • Introduced residential schools.
  • Forbid land claims; illegal to hire lawyers.
  • Created reserves. Government would expropriate portions at will and implemented "reserve pass" system.
  • Implemented Indian agents.
  • Women's status contingent on their fathers and husbands.
  • Enforced enfranchisement: loss of status for getting a university degree, joining military, or becoming a clergy member.
• What more did the Indian Act do? (2/2)

  • Criminalised Indigenous culture: forbade language, potlaches, traditional dress, ceremony.
  • Imposed "band council" system. Women were unable to participate in government.
  • Denied Indigenous people the right to vote.
  • Prohibited sales of alcohol to Indigenous people.
  • Forbade access to public spaces such as bars and poolhalls.
• Canadian Human Rights Act (1977)

  Features of this Canadian Human Rights Act:

  • Illegal to discriminate on the basis of: age, religion, disability, ethnic origin, sex, pardoned conviction, marital status.
  • Guaranteed that all Canadians receive fair and qual treatment from all institutions under federal control. However, excluded Indians and matters related to Indian Act.
• What is Section 67 of the Human Rights Act?

  Section 67 of the Human Rights Act stated that an individual cannot file a complain against the Indian Act as a human rights violation. This was repealed in 2008 and indicative of how truly unreasonable the Indian Act was.
• Describe the role of and who the Indian Agents (1830s - 1960s)

  The role and who the Indian Agents were are:

  • White men employed by the government to administer the delivery of treaty provisions.
  • Indian Agents had the power to recommend the removal of chief and council.
  • Imposed residential school attendance.
  • Limited traditional customs and practises.
  • Dispensed rations to band members.
  • Oversaw issues related to crime.
  • Controlled First Nations movements on and off reserves.
• What was "The Pass System?"

  The Pass System is:

  • First nations people in some part of the praries could not leave reserves without a pass issued from an Indian Agent.
  • Devised for the reserves in Upper Canada in 1828.
  • Pass noted duration and reason for leaving. Signed by Indian Agent.
  • Non-compliance with the provisions of the pass was grounds for arrest and return to reserve.
  • Meant to impede political, cultural, and economic autonomy, making reserves prison-like enclosures.
• American Residential Schools

  • Established by the Richard Henry Pratt of the US Army.
  • Persuaded the Army to allow him to send Indigenous prisoners of war to the Hampton Normal and Agricultural Institute in Virginia. This was established after the Civil War to educate former slaves.
• The Davin Report

  • John A. Macdonald commissioned Nicholas Davin to investigate industrial schoolsestablished for Indigenous Peoples in the US
  • Official title: Report on Industrial Schools for Indians and Half-Breeds
  • Report conclusions: (1) Indigenous adults could not be “civilized”, (2) incapable of learning, (3) too connected to their own traditions, (4) Indigenous children could be schooled and trained to be like “non-Indians”, (5) “We must catch them very young”

  Canada adopted the American model
• Canadian Indian Residential Schools

  • Opened from 1831 – 1996. Increased interest in 1880 after the Davin Report.Became mandatory in 1920
  • The first was the Mohawk Institute boarding school for boys in Ontario.
  • Every province in Canada established residential schools except Newfoundland, New Brunswick, and Prince Edward

  Island

  • Schools were run by the Church
  • The RCMP and Indian agents forcibly removed children from their homes and put them in residential schools
  • In 1931 there were 80 schools operating. 7 generations of families attended. 150,000 Indigenous children Indian Residential Schools.
• Life in Residential Schools (1/2)

  • In order to keep costs low, children lived under horrible conditions
  • Government reports include evidence of the severity of the conditions: cheap buildings, poor insulation, inadequate safety, and overcrowding. An inspector noted raw sewage seeping into dormitories in 1953. Conditions led to spread of tuberculosis (TB) epidemics File Hill Industrial School lost 69% of students to TB.
• Life in Residential Schools (2/2)

  • Students typically stayed for 10 months of the year
  • Denied communication with their families to limit cultural influence; discouraged family visits and facilitated this by placing children in schools that were far away from their home communities.
  • Churchianity: indoctrination into Christianity; the interpretation of Christian teachings destructive (not necessarily the teachings themselves).
  • Children assigned numbers and Eurocentric names
  • Traditional hair and clothing removed and replaced
• What were some residential school abuses?

  • Severe sanctions for breaking rules.
  • Abuses were often physical, mental, and sexual: lashes and beatings, confinement, electric shocks, needles stuck through tongues, called names.
  • Hunger was continual and a systemic problem.
  • Nutrition experiments were conducted on Indigenous children.
• How were the nutrition experiments conduct on Indigenous children?

  They had a control and experimental group.

  • The control group were kept malnourished with the normal residential school diet.
  • The experimental group were given vitamins or foods enriched with vitamins and minerals.
• What is some of the information available regarding sexual abuse in residential schools?

  • At some schools, sexual abuse rates reached 100%. They were often committed by priests and nuns. Also, some children were used in pedophile rings organised by clergy, police, and government officials.
  • Some female students ere forced to have abortions and some were involuntarily sterilised.
  • Many schools had unmarked graveyards where they buried the murdered babies and students.
• How were Indigenous women treated in Canada?

  • Did not have access to the same rights as those who were not Indigenous.
  • In the mid-19th century full citizenship was legally limited to men: women for for the right to vote, Canadian suffragists relied on peaceful campaigning, and faced repeated abuse and shaming.
  • All white women were granted the right to vote federally in 1921. Asian women in 1948, and Status Indians (male and female) in 1960.
• Andrew Mercer Reformatory for Women (1872 - 1969)

  • Sangster draws on Mercer data from 1920 - 1960.
  • The only provincial reformatory for women at the time.
  • Some considerations for Sangster's article are: case files incomplete; written from settlers' perspective (racialised construction of Indigenous women by court and prison personnel); all Indigenous women lumped together as "Indian."
• How were women regulated in the early 20th centruy?

  • Legal regulation focused on crimes of public order and morality.
  • Moral regulation concerned with behaviour considered unfeminine, abnormal, and threatening to society.
  • Relations of power based on gender, race, and economic standing.
  • Other mechanisms of regulation included: church, school, and family.
• What was Indigenous society like before settler contact?

  • Indigenous societies were often matrilineal: wealth, power and inheritance were passed down from the mother.
  • Egalitarian attitudes: women held positions of power and leadership within the community.
  • Acceptance of divorce and illegitimate children.
• How did Indigenous society look after settler contact?

  By the early 20th century Indigenous women lost power in a shift towards colonial values and patriarchy.

  • Social importance and sexual autonomy were undermined.
  • Indigenous men were provided with access to more power under colonial system.
• How were the experiences of Indigenous women, regulated and affected, in the early 20th Century?

  • Indian Act a policy of overregulation: an integral component of material, social, and cultural dimensions of colonialism; residential schools experienced by 1/3 of Indigenous youth; reserves; and Indian agents.
  • Domestic violence.
  • Low levels of education.
  • Children's Aid Society (CAS) interventions: family dissolution and child apprehension.
• What were the statistics for Indigenous women being admitted into the Mercer Reformatory from the 1920s to the 1950s?

  Mercer Admissions:

  • 1920s: 2%
  • 1930s: 4%
  • 1940s: 7%
  • 1950s: 10%

  At the time, Indigenous people only made up 1% of the overall population of Canada at the time.
• What are the statistics of Indigenous womens' incarceration today?

  As of 2021, Indigenous women were incarcerated at a rate of 48%. The total Indigenous population is now 4.9%. They are the fastest growing and youngest population in Canada. However, Indigenous women are not the most overrepresented in Canadian prisons.
• How were Indigenous women admitted into the Mercer?

  Through crimes of public poverty and moral transgressions:

  • Alcohol-related charges (as high as 70%)
  • Vagrancy
  • Prostitution and bawdy house charges
  • Breaches of Venereal Disease Ac
  • Breaches of the Liquor Control Act
  • Breaches of the Female Refuges Act
  • Breaches of the Criminal Code (Idle and dissolute behaviour)
• What was the Females Refuges Act?

  It allowed for the arrest and institutionalisation of women aged 16 - 35. Girls and women were turned in to authorities by family and acquaintances. Additionally, it included acts and behaviours that were considered incorrigible: promiscuity, pregnancy out of wedlock, and public drunkenness among offences.
• What did paternalism in the penal and welfare systems look like?

  • A colonial ideology where Indigenous women and children were seen as needing saving.
  • Indigenous women apprehended to "protect" them from unscrupulous men through reformatories.
  • Indigenous children apprehended to "protect" them from their families and culture: CAS and residential schools.
• Forced sterilisation in Canada was?

  Often preformed on Indigenous women and without their consent. This practise was prevalent in the 1960s and 1970s.
• Convention on the Prevention and Punishment of the Crime of Genocide (United Nations, 1951)


  Genocide means any of the following acts committed with intent to destroy, in whole or in part, a notional, ethnical, racial, or religious groups, as such:

  • Killing members of the group
  • Causing serious bodily or mental harm to members of the group
  • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
  • Imposing measures intended to prevent births within the group
  • Forcibly transferring children of the group to another group.