11. THE GRANT OF LEGAL RIGHTS TO CANADIAN INDIANS

In the absence of chiefs and of any legislative or executive body within the tribes or bands, law and order depended solely on the strength of public opinion. There were no written laws…merely rules and injunctions handed down by word of mouth from an immemorial antiquity…persuasion and physical force were the only methods of arbitrating disputes…social outlawry or physical violence the only means of punishing infractions of the moral code or offences against the welfare of the band or tribe…strangers however, even  people of a neighbouring tribe, might be robbed or killed with impunity; they had no rights unless they married into a band or placed themselves under the protection of some powerful family. – Diamond Jenness, The Indians of Canada1

Among the Indians there have been no written laws. Customs handed down from generation to generation have been the only laws to guide them. Every one might act different from what was considered right did he choose to do so, but such acts would bring upon him the censure of the nation, which he dreaded more than any corporal punishment that could be inflicted upon him. This fear of the nation’s censure acted as a mighty band, binding all in one social, honourable compact.- Ojibway chief Kah-Ge-Ga-Gah-Bowh- George Copway 2

“Real” property (the Indian) had none, for the hunting territory and the fishing places belonged to the entire band, and were as much the right of every member as the surrounding atmosphere. – Diamond Jenness, The Indians of Canada

In Victory: magnanimity.  – Winston Churchill   

Great Britain, in 1759, as the sole European possessor of the northern part of North America, was well aware of the inability of aboriginals to exclude British soldiers and settlers from their traditional lands. It was also becoming increasingly aware of the fragility and probable ultimate demise of what was left of the old aboriginal cultural ways.

With and despite that knowledge, instead of pressing its long-term advantages over the Indians by acting out some variation of the violence and dispossession norm, the British Crown, in an unprecedented historical fashion, to a large extent, at least for the realpolitik short termtook the Indians’ side over that of their own settlers and commercial interests, with a view, overly idealistic or impractical though it may have been, of keeping the peace on its new frontiers and preserving what could be preserved of traditional Indian lands and cultures until eventually, over the long term, those cultures would have adapted to European ways  and those lands taken up for settlement.

The Royal Proclamation of 1763 attempted to halt westward settlement…primarily from excluding everyone but the Crown from acquiring native lands…Thus, on paper at least, imperial authorities …shut out the old trinity of trouble makers, consisting of illegal squatters, greedy speculators, and corrupt colonial officials… As well, a controlled border would prevent whites from encroaching on aboriginal territory and thereby eliminate the need for natives to use violence to defend their homelands in the first place. At the same time (London Superintendent William) Johnson assumed firm borders would give native societies the long period of time they would need to adapt to white ways so that they could afford to give up most of their territories when future generations of settlers needed them. This was about the most sympathy aboriginal people could expect from senior white officials in the mid-eighteenth century….To George Washington, the Royal Proclamation was only a “temporary expedient to quiet the minds of the Indians”  until he, his business associates, and others could profit by accumulating aboriginal territory. 3

The Royal Proclamation of 1763 in fact evidenced a benevolent, solicitous, outward intention towards Indians and in effect represented the extension of a soft, open, “unmailed”, helping hand towards them. It was the very opposite of “genocidal” in wording or intent, clearly signifying as it did British intentions to create an environment where Indian peoples and cultures could not, as was normally the historical case, lawlessly (or lawfully), be casually, quickly and ignominiously erased from history.

In the Royal Proclamation, Britain declared that it was “just and reasonable” that the Indians of Canada “should not be molested or disturbed” in the possessions of both their reserves and any lands occupied by them and not ceded to or purchased by the Crown! The default legal position for Indians would be that if the Crown hadn’t legally purchased lands from them, or if the Indians, by some legal process, hadn’t ceded (not “shared” – see below) the lands in question, then Indians should have legal possession and control of them. This was an unprecedented, remarkably generous and restrained position for a de facto conqueror to take! It was a total departure from the historical norm of violence and dispossession.

To paraphrase Samuel Johnson, Canada’s Indians had been granted rights which would have been impossible for them to secure or keep on their own. These granted rights, being in the nature of collective property rights, embedded in and protected by British statute and common law, represented rights and concepts that had been previously unknown and alien to pre-contact Indian cultures, and were rights that none of the many Indian tribes which had conquered others had ever ceded to their vanquished foes.

Great Britain treated Canada’s Indians in this situation far better than Canada’s Indians treated each other in similar circumstances(Francis Parkman’s Jesuits in North America, and Joseph Boyden’s Orenda, referred to above, both graphically and chillingly describe the brutal, torture-laden treatment meted out by battle-victorious Indians to their defeated enemies.)

These substantive rights granted, along with the crucial tools necessary to ensure their preservation – rules of court procedure, lawyers, courts, judges, statute law, and common law doctrines, practices and traditions -“the values, myths, judicial apparatus and socio-political structures that took centuries to form and mature in the West and which could not be copied and internalized rapidly” (Yuval Noah Harari- Sapiens, above)- in fact the whole panoply of our written, adjudicative and  law-making judicial machinery – all of European cultural origin, and before that, completely alien and unknown to Canada’s Indians -represented a virtually unprecedented offering of a gracious, velvet-gloved, helping hand by a dominant power to a de facto defeated people.

But not according to various constituencies of the Indian industry, who baldly, and without any evidence in support, assert that there was and is such a thing as “indigenous law”, in substance akin to Anglo-Canadian law, and that we must all study it, respect it, and by implication, incorporate it into our jurisprudence.

The most egregious example of this is “Call to Action” number 28 of the Final Report of the Truth and Reconciliation Commission of Canada, Volume One: Summary,4 (discussed extensively in chapter 40, Setting Indians Free From Their Past, below), which calls upon Canadian law schools to require all law students to take a course in “indigenous law”.

The reasoned and scholarly position of historian Diamond Jenness on the matter, (above),  and the 1850 statement of Ojibway George Copway, ( or Kah-Ge-Ga-Gah-Bowh),  are apparently wrong. Their view was to the effect that, amongst Indian bands and tribes, law and order depended solely on strong chiefs and the strength of tribal opinion- that there were no private property rights- that there were no impersonal, written laws, with impersonal, written administrative and judicial procedures to enforce them, as in Anglo-Canadian law. Rather, there were merely “customs” and  “rules and injunctions handed down by word of mouth”, and with persuasion, arbitrary fiat, physical force and social outlawry being the only means of resolving disputes and punishing infractions of the tribal code.

And very significantly, compared to British -Canadian law, which  usually affords specific, limited rights to “outsiders” such as foreigners accused of crimes in Canada, refugees or persons with trading or property interests in Canada, strangers to the band or tribe had and have no rights whatsoever! 5

So, other than the immediately above already well-understood, rather banal, “tribal code” realities inherent to all tribal cultures the world overpast and present, what are the substantive particulars of Canadian “indigenous law” that are seemingly worthy of so much attention and fanfare by the Truth and Reconciliation Commission and by the Indian industry generally?

It turns out that there are little or no such  substantive particulars.

It’s another emperor has no clothes situation.

This is evidenced, not just from the barest knowledge of history and from the simplest reflection, but by an earnest, well-meaning,  Indian industry orthodoxy-supporting article on the matter, Law schools ponder how to teach aboriginal law,6 which takes the premise seriously, and which , if there was anything substantive to the matter, would surely have stated it.

In the article, despite the presence of impressive, high-sounding and completely unchallenged and unquestioned terminology- “the foundations of their laws”, “Indigenous Legal Traditions”, (note the pretentious use of capitals), “the legal structure” (of indigenous communities),  “the source of their traditional law”, and “aboriginal law aspects” (to be built into every law school course), there’s not one substantive particular of what that “law” might be.

There is reference to the source of aboriginal “traditional law” being their stories, teachings by elders, language, and even the land itself. But to the extent that these things might be real, rather than mere actual, content-free,  expressions of vapid, New Age mush, these are cultural, not legal, matters.

The only particulars given of anything remotely legal are particulars of Anglo-Canadian laws and Anglo-Canadian legal occurrences- “the United Nations Declaration on the Rights of Indigenous Peoples, the various treaties, aboriginal rights, (as declared and defined by Anglo-Canadian written documents, and by courts-author), and the historic Crown-aboriginal relations”- things already well and necessarily covered in our law schools.

What will be new, when these essentially social-engineering programs get underway, (similar efforts are being planned to change educational programs along these backward, race-focusing lines in public schools, high schools, and all other institutions of higher learning), is that a lot of Indian industry propagandist, New Age mush, (yes, like “their stories, teachings by elders, language”, and even “the land” itself), will be introduced  into our educational system- one-sided, mystical, shallow, history-twisting, fabricated, guilt-inducing, status-quo maintaining, Indian industry job-creating,  New Age, actual content-free, propagandist mush.

This mush reality is confirmed by the Truth and Reconciliation Commission’s “Call for “skill-based training in intercultural competency, conflict resolution, human rights and anti-racism”, all to be taught by Indian industry functionaries- New Age mush artists- in conjunction with this “indigenous law.”

The clear, insulting, condescending, divisive and totally wrong implication of this “Call” for the re-engineering of the human souls of ordinary Canadians, is that we are insensitive, culturally blind and/or incompetent racists, in need of a good brainwashing at the hands of the state.

The state, and its Indian industry agents, may find out here that people don’t like essentially propagandist mush- that people don’t like to be condescendingly told what to do- that they don’t like to be condescendingly told what to think- especially when so much of it is so obviously propagandist mush- and that, as Christopher Hitchens wrote:7

Virtue and merit can become their opposites if they are exacted or compelled.

All the Anglo-Canadian judicial tools and procedures discussed above are now being readily used by Indians themselves as the necessary and effective means of last resort, both  to resolve disputes between themselves and, more frequently and importantly, to assert devastatingly effective legal claims against the descendants of their former de facto “conquerors.”

To better ensure the carrying out of the intent of the Royal Proclamation colonial officials were forbidden from permitting any lands not legally acquired by the Crown to be surveyed. To avoid “fraud and abuse” being committed against Indians private persons were forbidden from purchasing land directly from them or from engaging in any unlicensed commercial dealings with them.

Finally, and of profound significance for the present time, all lands not included within the political limits of the existing British colonies were proclaimed to be reserved for the exclusive use of the Indians. In Canada this included the present Prairie Provinces, northern Canada and British Columbia. The Crown, if it chose to stick to the rules it created, would have to bargain with the Indians in these areas to acquire legal sovereignty over them. Hence the disastrous (for Canadian unity and for the Canadian welfare generally) 2014 Tsilhcot’in decision of the Supreme Court of Canada, (discussed further  below), a legally logical extension of the basic principles of the Royal Proclamation, decreeing that most of British Columbia is subject to “aboriginal title,” because it was never ceded by treaty to the Crown.

This “homelands” policy for Indian lands established by the Royal Proclamation applied to all the British colonies in North America, including of course the much more developed and populous Thirteen Colonies.

The Royal Proclamation’s relative fairness and generosity to Indians is evidenced by the fact that so “pro-Indian” and anti-development was it regarded there, that it became one of the major causes of the American War of Independence. The political and mercantile interests in the American colonies wanted no part of a law that would so territorially and commercially hem them in, and so, with the establishment of the American Republic in 1783, the Royal Proclamation, with its benevolent underlying philosophy, no longer applied there. This cutting of the British legal tie with American Indians was to cost them dearly in the next violence and dispossession-ridden century.

But in Canada the Royal Proclamation became and has remained, to the immense moral credit of Great Britain and its Canadian political successors, the bedrock document for and the starting point in any analysis of the legal rights of Indians in Canada today.

Great Britain should be highly praised for its conduct towards the Indians of Canada in colonial times.

It begs the point to criticize the British for acting in a “colonial fashion” and with a “colonialist mentality” towards Indians, as if that was inherently evil in itself. It’s not. As stated above, human migration was and remains a fundamental part of human history, and the arrival of Europeans in Canada is just another example of the operation of that morally neutral historical process.

As historian Peter Heather wrote in Empires and Barbarians,8 his study of “migration, development and the birth of Europe”:

It is an inescapable conclusion from all the comparative literature that a basic behavioural trait of Homo sapiens sapiens is to consistently use movement- migration- as a strategy for maximizing quality of life, not least for gaining access to richer food supplies and all other forms of wealth.

The size of the migration unit, balance of motivation, type of destination, and other detailed mechanisms, will all vary according to circumstance, but the basic phenomenon is itself highly prevalent.

So how else was Great Britain or any other country supposed to act here but in a “colonialist” fashion? How else were they to think? The British were human beings and as such, it being a part of every human being’s character to move and migrate, they were wanderers, migrators and colonizers!

Just as, long ago, the Thule migrations “quickly displaced” the Paleo-Eskimos, the Pickering people conquered and “colonized” the Glen Meyer people, and the Inuit displaced the Dorset peoples. Just as the Iroquois conquered and virtually exterminated the Huron, Eries, Petuns and Neutrals!

Where and when in history has it ever been different? The answer is nowhere and never!

Europeans cannot be blamed for the simple fact that they migrated here and eventually achieved a state of total dominance. That would be blaming history for merely being history, or blaming water for running downhill or the sun for rising and setting.

On a world historical level, the perpetual omnipresence of migration and assimilation means that it has to be regarded as essentially a neutral, mainly unconscious, collective human phenomenon – one that is a fundamental and unchangeable part of simply being human. To migrate, to set the process of assimilation in motion, is as natural as breathing. It’s definitely  not always to participate in an inherently blameworthy process!

There are moral issues in history of course and, in this area of history a main moral issue is how the successful migrators behaved towards the peoples they achieved dominance over. That’s where the concepts of blame and shame arise. Were they cruel? Did they kill, rape and plunder as a matter of seeming policy, and with the blessing of authority?  Did they sell their victims into slavery? To what degree did they let the usual historical norm of violence and dispossession  merely play out? How did they act relative to this ineluctable historical norm even assuming that morally wrongful acts inevitably occur in every situation where different cultural worlds collide?

Viewed with this issue and these types of crucial questions in mind the behaviour of Great Britain and then Canada towards Canada’s Indians, overall, has to be regarded positively and with great admiration.  They committed relatively very, very few of these horrific acts.

Yuval Noah Harari, in Sapiens, (above), makes the neat point that even in their end days of empire Great Britain acted relatively decently, in orderly fashion and without bloodshed (deliberately caused by them), voluntarily giving up their empire- essentially taking “peaceful early retirement.” They saw that the game was up and, quite honourably, didn’t prolong the process.

The current default assumptions and starting points in this area – that Great Britain, followed by Canada, were malign, unjust colonialist destroyers and that Indians were all virtuous, innocent victims, cruelly and against their will ripped out of their pre-contact Eden – should be discarded as a false and shallow narrative construct – a construct with no proper, reflective regard for either the realities of the human condition or historical truth.

Great Britain, and Canada, its successor, should be lauded for the relatively civil and decent manner in which they interacted with the Indians of Canada – for the relatively benevolent, historically-atypical way in which they have dealt with them.

  1. Diamond Jenness. The Indians of Canada. 6th ed. National Museum of Canada, 1972.
  2. From The Traditional History and Character Sketches of the Ojibway Nation, originally published in 1850 by Charles Gilpin, Bishopsgate, London, reprinted by Coles Publishing Company, Toronto, 1972
  3. Carl Benn, The Iroquois In The War of 1812, University of Toronto Press, 1998
  4. James Lorimer & Company, Toronto, 2015
  5. This raises the interesting point of who should be able to claim and enforce rights in a civic polity- in a country like Canada. The general rule is that rights are dependent on citizenship. “As Hannah Arendt put it in a famous phrase, only within the bounds of citizenship in a particular state do people have “the right to claim rights.”(Quote from David A. Bell, The Many Lives of Liberalism, New York Review of Books, January 17, 2019.) Yet today, while Indian elites assert their separate nationhood, and thus the fact that the Indians inhabiting Canada may be something less than full citizens of Canada, at the same time they press the citizens of Canada on all fronts for the fulfillment of all and sundry “rights” they feel they have against them. To the extent that they self-diminish full and equal citizenship in Canada, and considering that Hannah Arendt expresses the essence of Indian band or tribal ‘”law” on this point, should these legal and other claims not be diminished accordingly?
  6. (Neil Etienne, Law Times, January 11, 2016
  7. From Letters to a Young Contrarian(above
  8. Peter Heather. Empires and Barbarians: The Fall of Rome and the Birth of Europe. New York: Oxford University Press, 2010.

By: Peter Best