bc first nations 2.4

2.4: Events of the 20th Century

showing critical moments in B.C. First Nations political development which you will find below.

You will be required to rank important events in BC’s history according to their significance for people today.

Once you have completed the chart, you will use the information that you collected to write a thoughtful response.

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The McKenna-McBride Royal Commission was established in 1912. The commission’s findings and the policies created as a result had a significant impact on First Nations people of British Columbia. The decisions regarding reserve landdetermining how territory was added, reduced, or eliminatedwas of enormous consequence to B.C. First Nations people.

The McKenna-McBride Commission (1912-1916), was named after federal minister McKenna and provincial premier McBride. Its task was to visit each First Nations community in B.C., consult with the people about the amount of land they required, and assign additional reserves. Some bands refused to meet with the commission, while others, in making their presentations, reinforced their desire for treaties. In the end, the commission did make new reserves, but it also removed valuable land from certain reserves. These lands are referred to as cut-off lands, and most of them were in urban areas where the property had come to have great economic potential.

In 1913 one individual, Duncan Campbell Scott, came to control the Department of Indian Affairs. He had been rising through the ranks of the department since 1879, but had now attained a position where he created departmental policy and advised politicians on drafting new legislation. Outside his career as a civil servant, he was one of Canada’s best-known poets. Inside the halls of the government, Scott was an influential bureaucrat whose intention for his department was to complete the full assimilation of “Indians” into mainstream Canadian society. “The happiest future for the Indian race,” he wrote, “is absorption into the general population, and this is the object of the policy of our government. The great forces of intermarriage and education will finally overcome the lingering traces of native custom and tradition.” In 1931, he wrote about the First Nations of B.C., “The outlook in British Columbia is certainly encouraging; there is fine material among the natives to make good British citizens, and in two or three decades we may expect that a large number of Indians will have been absorbed into the ordinary life of the Province.”

Scott saw in the McKenna-McBride Commission the perfect way to achieve his goals. In 1914, he drafted an Order-in-Council that stated that if the decisions of the McKenna- McBride Commission were accepted by the courts, the First Nations of the province would surrender and extinguish all title in return for whatever compensation the governments deemed adequate. No further claims could be held against the provincial government; for them, the “Indian Problem” would be over. The decisions of the commission could only be taken to court if the province chose to do so, and if it did, the First Nations leadership could not choose its own lawyers, but would have to accept those assigned by Canada.

There was vehement protest against this Order-in-Council. A delegation of Nisga’a and interior tribes met with the federal cabinet in 1916, but the politicians told them that no action could be taken because they did not represent all First Nations in British Columbia. Naturally, leaders took steps to remedy this situation.

The Allied Indian Tribes
By that time, the Indian Tribes of the Province of British Columbia, the First Nations organization which had met in Victoria in 1911, had dissolved. A new province-wide organization (called the Allied Indian Tribes of British Columbia) was formed in response to the McKenna-McBride Commission.

The Allied Indian Tribes took on another front. The idea of enfranchisement was a failure; by 1918 only 102 people in all of Canada had chosen to renounce their Indian status for Canadian citizenship. That year the Indian Act was amended to make it easier to become enfranchised. Previously the band had to agree, but under the new legislation, a man who wanted enfranchisement could say to the Superintendent- General that he did not follow “the Indian mode of life.” Widows and unmarried women could also apply, although married women had to allow their husbands to make this choice on their behalf.

This measure wasn’t enough for Duncan Campbell Scott, however. He wanted the Department of Indian Affairs (DIA) to be able to enfranchise individuals or whole bands without even consulting them or getting their consent, if, in the wisdom of the department, “the continuance of wardship was no longer in the interests of the public or the Indians.” In 1920, Bill 14 was put forward in Parliament to amend the Indian Act to make it legal to enfranchise any adult Indian whether he or she wished it or not. Also included in this bill was a law to force First Nations children between the ages of seven and fifteen to go to school. One of the key signs of suitability for becoming enfranchised was education, and part of the law stated that any Status Indian who completed a university degree was automatically enfranchised and lost his or her Indian status.

Naturally this legislation caused a great outcry in First Nations communities, and the Allied Indian Tribes protested it, asking why Status Indians could not be given full citizenship and the vote while still holding their lands and status. Representatives of the Allied Indian Tribes travelled to Ottawa and petitioned Parliament against the compulsory enfranchisement laws. As a result, a parliamentary committee investigated the issue, and although the law was not repealed, it was never put into practice. This successful petition to Parliament encouraged the Allied Indian Tribes and other First Nations across the country in the belief that organized protest could achieve results.

The McKenna-McBride Commission completed its report in 1916, and in 1920 an act was passed to implement its recommendations. The Allied Indian Tribes continued to resist, and in 1923 petitioned the government. In August 1923, federal officials made an almost unprecedented visit to British Columbia expressly to meet with the Allied Indian Tribes. Interior Minister Charles Stewart (responsible for Indian Affairs) and Duncan Campbell Scott, Deputy Superintendent of Indian Affairs, met with the executive of the Allied Indian Tribes.

Their case was presented, and Stewart promised to take it before cabinet. It required another petition before any action was taken. Finally, in 1926 a Special Joint Committee of the Senate and the House of Commons investigated the issue of land claims and Aboriginal title in British Columbia. The official record of this committee includes documents submitted in evidence that compile all the work by various First Nations groups and leaders since 1875, and also all the testimony given by the witnesses. Today the document provides an excellent summary of the land claims struggle for researchers.

The outcome, however, was far from satisfactory. The committee recommended a yearly payment of $100,000 to provide for technical education, hospital care and medicine, promotion of agriculture, and for irrigation projects–and nothing else. These were all areas which the government already had an obligation to provide for. However, as Kelly noted, the idea of the grant did prove something.

The grant of $100,000 indirectly recognizes the validity of the Indian land question of British Columbia. The British Columbia Indians claim that if their title to the lands of British Columbia were without foundation why would there be the necessity of a $100,000 annual payment ‘in lieu of an annuity.’ This deviously admits the actuality of the Indian land claims of British Columbia.

As it happened, the work of the Allied Indian Tribes had an unforeseen outcome: Parliament apparently decided the First Nations organization had become too powerful. A new amendment to the Indian Act was passed in 1929 which stopped the Allied Indian Tribes cold.

The new law made it a criminal act for First Nations people to try to achieve recognition of Aboriginal title, or to pursue in any way their Aboriginal rights. It was now illegal to raise money to pursue land claims; and it was even illegal to hire a lawyer to pursue land claims; and it was even illegal for people to meet to talk about land claims.

INDIAN ACT

Status (registration) entitlement was no longer to be based on the sexually discriminatory rules that had existed in the past. When the Bill passed into law on April 17, 1985, men and women were to be treated equally. Children were to be treated equally, regardless of their birth in or out of wedlock. Children who were adopted were to receive the same rights as naturally-born children. Marriage was no longer to be used to determine the Status of First Nations women. Those First Nations people who had lost their Status because of discrimination or enfranchisement were to have their Status restored.

The federal government, however, was to continue to maintain the Indian Register. The Bill did not change the Status of those who were already registered at the time of the amendments to the bill. Those who would have their Status restored or who had become eligible to be registered for the first time had to apply to the Registrar.

Bill C-31 did change some major categories regarding the Status of persons under the old Indian Act. First Nations people who had lost Status because of enfranchisement by serving in the military or by becoming doctors, lawyers, priests, or getting a university degree before 1920 could get their Status back. Women who had lost their Status because they married non-Aboriginal men had their Status reinstated. However, Status of children of those eligible to have their Status reinstated has become a confusing issue due to what is known as the second-generation cut-off rule, which takes into account the Status, Non-Status, and Status eligibility of parents, whether living or not. There are other case specific situations regarding reinstated Status.

Eligibility for membership within bands was restored to those who had lost it because of sexual discrimination in the past. In some cases, when Status was restored, membership in the appropriate band was simultaneously restored. In other cases, those who had their Status reinstated had to apply to their band for membership. Under Bill C-31, bands were allowed to take control of their own memberships and establish their own eligibility rules. However, the rules had to follow two guiding concepts: 1) a majority of the band members had to agree to allow the band to take control of membership issues and administration, 2) there had to be a set of membership rules drafted which stipulated that already-existing members could not lose their membership due to a change in membership guidelines. There were deadlines with which bands had to comply or the government stepped in to make the membership decisions.

Bands were given new by-law powers. Bands were now able to decide which members could reside on the reserve and which could not. Under Section 81 of the Bill, bands were allowed to use the courts to enforce their by-laws. Bands that had voted not to assume control of their membership were subject to the Indian Act.

Enfranchisement was abolished by Bill C-31.

Sections 94 to 100 of the Indian Act, which dealt with the control of intoxicants with regard to First Nations peoples, were repealed. Bands were now free to create their own by-laws regarding liquor control, or to follow provincial laws if they wished.

The federal government agreed to provide funds for housing, elementary and secondary education, health services, and social assistance to individual bands. The concept of the funding was based on the fact that provincial and municipal governments offered similar programs to their residents. Most of the services provided were to be delivered by band councils.

Bill C-31 addressed some of the omissions and wrongs of the past concerning Status. However, there is a great deal of criticism levelled at the Bill by Aboriginal groups who argue that the second-generation cut off will see many Aboriginal children and grandchildren unable to obtain Status. These critics argue that Bill C-31 will ultimately do what other government policies in the past have failed to do: assimilate Aboriginal people into mainstream society by elimination of Status.

In 1990, the Supreme Court of Canada made its decision on the meaning of Aboriginal rights contained in the Constitution Act 1982. This clarification arose after Ron Sparrow of the Musqueam Band had been charged under the Fisheries Act with using a drift net longer than allowed. Sparrow did not defend himself by arguing that the net was too large, but instead argued that he had an Aboriginal right to fish for food and ceremonial purpose. He claimed that the burden of proof was on the federal and provincial governments to justify any legislation that may adversely affect any Aboriginal rights protected under the Constitution Act 1982, specifically Section 35(1).

The Constitution Act of 1982, Section 35(1) recognizes existing Aboriginal and treaty rights. This section defined Aboriginal peoples as being Indian, Inuit, or Mtis. Section 35(1) was to protect Aboriginal rights from legislation that would remove these rights.

Though a number of legal issues were involved in this case, it was the first time in which the Supreme Court of Canada had to interpret Section 35. The court had to decide whether the regulations of the Federal Fisheries Actwhich governed fishing practices and equipmenttook precedence over the Charter of Rights and Freedoms, which stipulated Aboriginal rights to fish.

The Sparrow Case was first heard in provincial court, where the judge ruled that a person could not claim an Aboriginal right unless a special treaty, proclamation, or other document supported that right. Since Sparrow was arguing his case based on an historical practice, there was no treaty to support his rights and Sparrow was convicted. Sparrow’s next step was to appeal to the then-existing County Court, which was an intermediary court between the provincial court and the provincial Court of Appeals. The County Court also found him guilty.

The guilty verdict was overturned by the B.C. Court of Appeals based on a mistake of law. Although the court ordered a retrial, neither Sparrow nor the Crown felt satisfied and the case was taken to the Supreme Court of Canada.

The Supreme Court ruled that Section 35’s phrase “existing Aboriginal rights” has to be interpreted flexibly. It recognized that Aboriginal rights are changing; they aren’t necessarily the same as they were in the past. The court also recognized the federal government’s fiduciary relationship with Aboriginal people.

The court ruled that for Aboriginal rights to be truly extinguished, the government must clearly state its intentions. It cannot just assume or imply that the rights no longer exist. The Supreme Court also ruled that Aboriginal fishing was subject to conservation needs but is to be given priority over the demands of other groups.

WHITE PAPER

In 1969, Canadians witnessed a major change in the way the Indian Question was dealt with in Canadian society. Liberal Prime Minister Pierre Trudeau had campaigned on a platform of a belief in a ‘just society. Trudeau was a very popular and charismatic leader. He believed that Canada should be a democracy in which all citizens could participate equally. Trudeau’s campaign also said the Liberals were committed to changing the policy towards Aboriginal people and to consulting with them about change. Aboriginal leaders were hopeful and optimistic that Trudeau’s policies would result in Aboriginal people being treated fairly and justly. Unfortunately this was not to be the case.

Trudeau believed that by repealing the Indian Act and incorporating First Nations people into mainstream society, his government would solve the Indian Question once and for all. The Minister of Indian Affairs, Jean Chrtien, authored the government’s White Paper on Indian Affairs in 1969.

The major aim of the White Paper was to allow Aboriginal peoples to be free to develop their cultures in an environment of legal, social, and economic equality with other Canadians. One of the key items the White Paper proposed was to repeal the Indian Act. Further, the White Paper proposed giving First Nations people control of their reserves, dismantling the Department of Indian Affairs, and abrogating all responsibility for First Nations people to the provinces. The White Paper also proposed eventually eliminating all treaty rights. If the White Paper had been enacted as policy, it would have seen people of First Nations descent treated the same way, and receiving the same services from the federal government as other Canadian citizens.

First Nations communities were nearly unanimous in their opposition to the government’s White Paper. The feeling was that, again, the government had failed to realize the unique circumstances that First Nations people faced in Canadian society. The fact that the White Paper was prepared in secret with no input from First Nations people and declared without warning, caused many to believe that the White Paper was simply extending the aims of the Indian Actto force the assimilation of First Nations people into mainstream Canadian culture until they eventually disappeared.

The Indian Act had created boundaries both geographically and politically; it had defined who was and was not Indian. The White Paper simply eliminated Indian peoples as having special status. First Nations people felt that the result would no longer be slow assimilation under the Indian Act but instantaneous assimilation through the White Paper.

CEDAR

At the same time as the Trudeau government released its proposed White Paper in 1969, the Nisga’a Tribal Council initiated a lawsuit against the government of British Columbia. B.C. First Nations people had used many tactics over the years in attempting to settle land claims and establish Aboriginal rights. Negotiation, mediation, petitions, and treaties had all been strategies for B.C. First Nations people. By the 1960s, First Nations people had begun to see that a much more successful avenue for resolving issues was through the court system.

The Calder Case (Nisga’a Treaty)

The Nass Valley lies in British Columbia’s northwest and is part of the traditional territory of the Nisga’a. Approximately 60 percent of the 5500 members of the Nisga’a nation reside in this region. The area is economically important to both the Nisga’a and the province because of its value to the forest industry, eco-tourism, and fishing.

In 1887, Nisga’a chiefs travelled by canoe to Victoria to meet with the provincial government to gain recognition of their title, to negotiate treaties, and retain self-government. They were unsuccessful. In reaction, the Nisga’a created the first ever Aboriginal Land Committee in 1890. The Land Committee was the start of a lengthy campaign by the Nisga’a to gain territorial rights.

A major obstacle to the Land Committee’s work occurred in 1927 and lasted until 1951. A revision of Indian Act in 1927 made it illegal for Indians to raise money for the purpose of pursuing land claims. In 1931, the Nisga’a and other First Nations formed the Native Brotherhood of B.C. and continued to press for their rights in different ways. Almost a quarter of a century later, in 1951, the federal government repealed those Indian Act amendments that had blocked activity on lands claims. The Nisga’a Tribal Council was formed in 1955 to continue the work formerly done by the Land Committee and in 1969 the Council went to court with the Calder case to claim Nisga’a rights.