Part Three

Consolidated Paternalism with the Indian Act

By: Gemma Porter

Gemma Porter

Historical & Educational Contributor

I am an Assistant Professor in the School of Education at St. Thomas University in Fredericton, New Brunswick. Before making the transition to teacher education in 2021, I worked as a middle years and high school social studies and Indigenous studies public educator. My dissertation research focused on the history of Social Studies curriculum in the province of Saskatchewan.  My current research and practice interests are focused on developing teacher education programming that supports decolonization and education for the common good. This research, and related historical and contemporary policy analysis research, is guided by an interest in examining the ways that socio-political culture as well as educational climate impact educational policy and design.

Section 93 of the Constitution Act 1982 (it was also part of the preceding British North America Act 1867) stipulates that education is an area that falls under provincial jurisdiction. However, Section 91 establishes that the exclusive powers of the Parliament of Canada (the federal government) include “Indians and lands reserved for Indians.”[i] Together, Sections 91 and 93 of the Constitution Act create a jurisdictional overlap with respect to education for Indigenous children and youth. In post-Confederation Canada, education for Indigenous children and youth fell into one of two categories: education for status Indians, and education for non-status Indians, Metis, and Inuit students. Pursuant to S.91,[ii] education for status children and youth became the responsibility of the federal government, while pursuant to Section 93, education for non-status Indians, Metis, and Inuit students fell to the provinces.

The legislative context for education for Indigenous students is quite different depending on which category applies to them. While provincially regulated schooling is supported by legislation in the form of various education acts, the federal government has never passed specific legislation with respect to First Nations schooling. This lack of a legislated framework has resulted in the development of a system that remains typical across the country today: band-operated, federally funded schools that use the relevant provincial curriculum to guide instruction and assessment for students. Despite these complications, the lack of federal legislation has also created space for communities to be creative in delivering education within the broader context of the pursuit of self-government – a process that will be discussed in a later article.

Once the Canadian government had secured control over lands from sea to sea (primarily through the negotiation of the Numbered Treaties), officials saw an increased need to develop a comprehensive legal framework to guide the relationship between First Nations, then referred to as “Indians,” and the federal government. Prior to Confederation, laws and policies related to Indigenous peoples were created in an ad hoc manner as the need arose. Post-Confederation officials were in search of a mechanism that would apply universally to all the distinct and separate Indigenous groups in the new nation, and the resulting legislation, the Indian Act 1876, would be one that completely disregarded the diversity of peoples and relationships. This emphasis on the disregard for diversity is an essential one. Not only did this unified law ignore the unique needs of communities based on histories, cultures, and livelihoods, the Indian Act also completely ignored the diverse histories of relationships between Indigenous communities and settlers in different regions of the country. The Act essentially forged uniform parameters for the relationship between the federal government and communities, regardless of their histories with settlers in the region. For instance, in some regions of the country the Indian Act replaced longstanding military and economic relationships with one that treated all First Nations individuals as wards of the state.

Pages from the 1876 Indian Act. Image courtesy of the Canadian Museum of History and Library and Archives Canada, RG10, v2112, file 20804, p. 142.

The Indian Act is a comprehensive statute that covers just about every aspect of life for First Nations peoples. The Indian Act was the result of the consolidation of two previous pieces of federal legislation: the Gradual Civilization Act, and the Gradual Enfranchisement Act. As the titles suggest, the aim of these two documents, and the Indian Act, was to rid Canada of First Nations populations. All three Acts provided the parameters for enfranchisement – that is, for the loss of status and the gradual assimilation of remaining Indigenous peoples into the body politic.[iii] Furthermore, the Act set out the system of governance on reserve (the band system), set the definition for Status (which is required to access rights and benefits), and established the management of reserve lands and of communal funds. Over the years the Indian Act has been amended many times, most significantly in 1921 and 1950, but the aims and nature of the Act have remained largely consistent.

The history of the institutional and legal failure of the British and later Canadian governments to provide education for First Nations children continued with the Indian Act. The first iteration of the Indian Act received assent on April 12, 1876. Although far-reaching and all-encompassing with respect to control over First Nations and lands established as reserve lands, the original Act did not include provisions for the education of First Nations children. The Act did however include provisions pertaining to First Nations individuals who attended and were granted degrees from universities. Section 86(1) of the Act states:

“Any Indian who may be admitted to the degree of Doctor of Medicine, or to any other degree by any University of Learning, or who may be admitted in any Province of the Dominion to practice law either as an Advocate or as a Barrister or Counsellor or Solicitor or Attorney or to be a Notary Public, or who may enter Holy Orders or who maybe licensed by any denomination of Christians as a Minister of the Gospel, shall ipso facto become enfranchised and be under this Act.”[iv]

This section draws attention to a key feature of the Canadian government’s assimilation policies with respect to Indian status: enfranchisement. The Canadian Government forced individuals to choose between higher education or status – the ramifications of which are far-reaching. Enfranchisement refers to a legal process for the termination of Indian Status in exchange for full Canadian citizenship. While citizenship might seem appealing in the context of contemporary democracies, the costs included loss of membership, rights, and services connected to status.  Indigenous activist and legal scholar Pamela Palmater explains that such distinctions between status and non-status individuals have implications for access to essential services and, for some individuals and communities, the erosion of Indigenous identity and communal connection.[v]  Section 86(1) made clear the consequences for those First Nations individuals seeking higher education – relinquish status, and thereby your membership in the First Nation community to which you belong.

Provisions relating to education would become much more comprehensive in the years that followed the initial assent of the Indian Act in 1876. Beginning in 1883, the federal government sought to establish a system to enroll Indigenous children in schools. It was made clear by then Prime Minister John A MacDonald that the government considered separation from parents and home to be essential for the “civilization” of Indigenous children. Knowing that day schools had existed for years and had ultimately failed in their efforts to assimilate Indigenous children into British-Canadian society, Prime Minister MacDonald argued the need for separation: “When the school is on the reserve, the child lives with his parents who are savages; he is surrounded by savages, and though he may learn to read and write, his habits and training and mode of thought are Indian. He is simply a savage who can read and write.”[vi] Such comments were typical of the aggressive and violent nature of the assimilative efforts of the Canadian government. Furthermore, they demonstrate well the importance that was placed on completely isolating children from their families and communities in the name of “civilization.”

Distant view of Fort Qu’Appelle Indian Industrial School in Lebret, Saskatchewan, c. May 1885. Tents, [Red River] carts, and teepees of First Nations and Métis parents wait outside the fenced barrier in hopes of seeing their children. Image credit: Oliver B. Buell. Image courtesy of Library and Archives Canada.

Although it was the British North America Act that provided the federal government with jurisdiction over First Nations individuals and lands, it was the Indian Act that would eventually establish the framework for education. In 1884, the goal of assimilating First Nations children took structural form through amendments to the Indian Act. These amendments enabled the creation of federally funded residential schools operated by religious organizations, primarily the Catholic Church but also including other Christian churches. Although the Indian Act provided the legislative authority that enabled the creation of the residential school system, the schools were deemed largely unsuccessful. Part of this failure was the fact that families were reluctant, and many times outright refused, to send their children to the schools. In 1919, deputy superintendent of the Department of Indian Affairs Duncan Campbell Scott indicated that it was impossible to “recruit for the schools under the present voluntary system.”[vii] And so, in 1920, further amendments were made to the Indian Act that made attendance at day and residential schools mandatory for Indigenous children. The amendments also set out the mechanism for enforcement, which included truancy officers and penalties and fines for parents who refused to send their children to school.

Despite these efforts by the federal government to mandate and push ahead with a program of assimilation that was focused on education, the system of residential schools was ill-conceived and notoriously under-funded. The number of schools expanded quickly but without any kind of real development plan. In 1868, day schools had represented the more common structure for federally funded education. In that year, there were just two residential schools, but by 1904 there were 24 industrial and 40 boarding schools across the country. The ill-conceived planning and oversight of the schools is well evidenced by the fact that it wasn’t until the 1940s that the government commissioned needs assessment surveys. What’s more, the government had little oversight over the schools until 1911, when the Department of Indians Affairs took on a significant leadership role through administering contracts and created a comprehensive management structure for the schools.[viii]

The criminal neglect and abuse perpetrated by those in power at the schools is now well-documented. Over a stretch of about 100 years, approximately 150,000 Indigenous children would pass through the residential school system. For many of those who survived, their remaining years would be scarred by the trauma endured within the schools.  The legacy of the residential school system continues to impact families and communities across the country. While the Truth and Reconciliation Commission has brought closure and healing for many, there is still much more healing required.  

Despite the trauma of the residential school system, the 1970s ushered in a period of Indigenous activism – a period that would become pivotal to the movement for increased control over education for First Nations communities. The years of neglect and abuse experienced under the guise of “education” set the stage for advocacy that aimed to return the responsibility for education to where it belonged – in the hands of First Nations communities. A report published by the National Indian Brotherhood in 1972 became and continues to be an integral document in understanding the failures of the federal government to deliver the promise of education to Indigenous students, and First Nations students more specifically. It is this report, and the context that surrounds it, that is the focus of the next article.

[i] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11

[ii] In addition to S.91, the federal government owed the promise of education to some communities as a result of provisions negotiated as part of treaties. For instance, Treaty 6, which covers parts present-day Alberta and Saskatchewan, included provisions for education.

[iii] This is a term that refers to the people of a country or society considered together as a single, uniform group.

[iv] An Act to amend and consolidate the laws respecting Indians, (1876) (enacted).

[v] Palmater, P. “Genocide, Indian policy, and legislated elimination of Indians in Canada,” Aboriginal Policy Studies, 3(3) (2014), pg.27 – 54.

[vi] As quoted in Truth and Reconciliation Commission of Canada (2012). They came for the children. The Truth and Reconciliation Commission of Canada. p.6.

[vii] National Archives Canada. RG 10 Vol. 3933, File 117657-1A, MR C 10164, “To A. Meighen from D.C. Scott,” 11 December, 1919.

[viii] Milloy, J., “‘Suffer the little children’: A History of the Residential School System, 1830-1992,” Report submitted to the Royal Commission on Aboriginal Peoples, (1996).