From Confederation to the 1927 Amendment
to the Indian Act

he British North America Act, 1867 (now the Constitution Act, 1867) created the Dominion of Canada and, by section 91(24), gave the Parliament of Canada exclusive jurisdiction over “Indians, and Lands reserved for the Indians”.  In the first important judicial decision involving Indian lands in Canada, St. Catherine’s Milling and Lumber Company v. The Queen (1888), the Privy Council in London, England, decided that, while Parliament has exclusive jurisdiction over Indian lands, the underlying title to them is held by the provinces.  Aboriginal title, described by the Privy Council as “a personal and usufructuary right”, is a burden on the provincial Crown’s underlying title.  The lands are not available as a source of provincial revenue until this burden has been removed.  In 1997 in Delgamuukw v. British Columbia (see Period 9 ), the Supreme Court of Canada decided that only the federal government has the constitutional authority to remove this burden because it has exclusive jurisdiction over Aboriginal title.

In 1939, in Re Term “Indians”, the Supreme Court decided that the term “Indians” in section 91(24) includes the Inuit.  The Court has not yet decided whether this term also includes the Métis, an issue it explicitly left open in 2003 in R. v. Blais (Period 8).

By 1873, the four original Canadian provinces – Nova Scotia, New Brunswick, Quebec, and Ontario – had been joined by the admission of British Columbia (1871) and Prince Edward Island (1873).  Rupert’s Land and the North-Western Territory to the north and west of Quebec and Ontario were also added to Canada in 1870, and the province of Manitoba was created out of them in the same year after the Métis insisted that their cultural, political, and land rights be respected.

The Parliament of Canada began to enact legislation relating to Indian affairs in 1869.  In 1876 this legislation was consolidated and expanded in the first Indian Act.  Among other things, this legislation gave the Canadian government the legal authority to replace traditional Aboriginal forms of government with elected chiefs and band councils, with limited, delegated powers set out in the Act.  However, traditional governments were not abolished, and continued to exercise the inherent right of self-government in many communities, sometimes covertly.

From 1871 to 1921, the federal government and the Aboriginal peoples entered into eleven numbered treaties in what are now the Prairie Provinces, north-eastern British Columbia, northern Ontario, and parts of the Yukon and North-West Territories.  These treaties generally dealt with lands, hunting and fishing rights, reserves, annuity payments, and other matters.  They did not explicitly address the matter of self-government.  Nonetheless, the federal government usually applied the Indian Act, including the provisions for elected chiefs and councils, to Aboriginal peoples who entered into treaties.

Apart from some adhesions to earlier treaties, the last treaties entered into during this period were the Williams Treaties in Ontario in 1923.  In British Columbia, the only treaties were the Douglas Treaties on Vancouver Island in the 1850s and Treaty 8 in the north-eastern part of the province in 1899.  British Columbia refused to sanction any other treaty-making, and even brought pressure on the federal government that resulted in an amendment the Indian Act in 1927, making it illegal to raise money or pay lawyers for the purpose of pursuing an Indian claim.  That effectively ended the period of historic treaty-making.  In most of British Columbia, Aboriginal lands were taken and tiny reserves were created without Aboriginal consent.