Introduction: The Sleeping Giant Awakens

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Adam Lett worried that he could lose several valuable employees if he could not provide a good education for their children. Lett was principal of the St. George’s Indian Residential School near Lytton, British Columbia. In a cordial exchange of letters with Deputy Superintendent General of Indian Affairs Duncan Campbell Scott in late 1926, he suggested that since the “white school” was too far away, he could create a separate classroom in his office. “Like myself,” he argued of his employees, “they do not feel that they should expose their children, any more than is necessary, to the low standard of morals, desease [sic] and act inherent in the Indian child.” H. Graham, the local Indian agent, concurred: “They do not like the idea of putting a row of desks in the Indian children’s classroom, owing to the great amount of tuberculosis which is cropping up amongst the Indians all the time.” In February 1927, Scott approved the request, and he advised Lett to place an order for five “silent sanitary adjustable” desks and a style “D” reversible blackboard with Clarke and Stuart of Vancouver.1

Inferred in this correspondence was an unspoken context: St. George’s was under quarantine for a virulent flu epidemic that had caused the deaths of thirteen Indigenous children, while they confronted a continuing risk of tuberculosis.² This short exchange of letters is but one example of countless double standards – what settlers found acceptable for Indigenous children was unacceptable for their own. Then as now, the Canadian government has maintained fundamentally different approaches to Indigenous and settler peoples, not only in terms of health standards but also in its assumptions about morality, mortality, capacity, and rights. Since the 1970s, knowledge of Indian residential schools has been slowly growing, resulting in the Final Report of the Truth and Reconciliation Commission of Canada (TRC) in late 2015. What was once a sleeping giant – public discussion of and engagement with the crimes of colonization and the Indian residential schools (IRS) system – is now awake. Canada faces a conciliation challenge – how to spread knowledge of the IRS system and reverse the destructive impact of the state’s crimes against Indigenous peoples and their accompanying legal and political orders.

This year, we commemorate the sixtieth anniversary of the death of Raphael Lemkin, creator of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention, or UNGC), and mark Canada’s 152nd birthday. The last 151 years have been destructive for the Indigenous civilizations that flourished on Turtle Island before European exploration, colonization, and settlement. As part of a resurgence of Indigenous peoples, a growing and diverse (re)conciliation movement, discussions of nation-to-nation relationships, conversations about genocide in the Indian residential schools are increasing in frequency. Genocide as an analytical lens is also being used to understand the starvation policies of our first government under John A. Macdonald, and in coming to terms with the Sixties Scoop – the forced removal of Indigenous children from their families and communities.

To make sense of what genocide is and whether it applies to Canada, I deploy both the UNGC and a larger body of legal and academic work on genocide that predates and follows it. I call these two lenses legalist and pluralist conceptions of genocide, and both are necessary to my analysis of the Indian residential schools and the Sixties Scoop. Why two versions of genocide and not one?

The legalist conception is important, first, because its application recognizes decades of claims by Indigenous academics, leaders, activists, and Survivors, who have consistently articulated that the Genocide Convention applies to the IRS system. Such claims continue. In April 2018, former TRC commissioner Wilton Littlechild, at the United Nations Permanent Forum on Indigenous Issues, requested that the UN Special Adviser on Genocide investigate whether the IRS system had violated the UNGC. He requested this in light of Pope Francis’s refusal to offer an apology for the Catholic Church’s role in the residential schools. Littlechild asked the special adviser to examine the question, “Was this policy indeed, because it happened in Canada, the United States, and elsewhere, was it genocide?”3

Second, in the wake of the TRC’s work and considerable work by others, there is a growing body of evidence that genocide was committed in the IRS system and during the Sixties Scoop through forcible transfer. Article 2(e) of the convention prohibits “Forcibly transferring children of the group to another group.” Third, a legalist analysis recognizes that, in a pragmatic sense, UN-defined genocide is privileged in this country, in that it is recognized, commemorated, and included in educational curricula. The Canadian government has officially recognized seven genocides, and as taxpayers, we fund museums and memorials to the victims of genocide and pledge “Never again,” seeking cautionary lessons for the future from the excesses of the past. If the UNGC was violated (as I suggest it was), the IRS system deserves to stand alongside these other, recognized cases of genocide in world history. Otherwise, we do a disservice to Indigenous peoples and to historical truth.

The pluralist conception of genocide is equally necessary because of the narrow framing of the UNGC. First, only two of its elements are found in our Criminal Code (“killing” and “causing serious bodily or mental harm”), meaning that forcible transfer is not seen as genocide in domestic law. Second, pluralism foregrounds the machinations of the Canadian government, along with other settler states, which actively removed elements of the definition of genocide to reduce the potential for Indigenous peoples under settler colonization to articulate a legal case under international law. While the case can be made for violations of the UNGC as currently defined, the definition of genocide should also be expanded if we want to better understand the fuller magnitude of what has been done to Indigenous peoples during the creation of the Canadian state.

Third, the Genocide Convention is not retroactive, which means that genocidal crimes before 1948 cannot be punished as genocide under international law. This does not mean that Canadian legislatures or Parliament cannot recognize the IRS system as genocide, since three of our recognized genocides predate the convention. In the concluding chapter, I recommend that the full definition of genocide and cultural genocide be incorporated into the Criminal Code, and I also recommend that our elected governments officially recognize the IRS system as genocide.

Despite the political upheavals at the time of writing, we are potentially at a unique moment, a time when the federal government appears interested in questions of genocide and cultural genocide. In their country report to the International Holocaust Remembrance Alliance, published in 2018, the Department of Canadian Heritage identified key questions to be addressed about the nature of the IRS system: “in what ways do the goals of the residential school system fit, or not fit, the idea of genocide; what value is there in conjoining the ‘cultural’ qualifier to the concept of genocide; and how can we work with cultural genocide in comparison to other forms of genocide particularly the Holocaust.”4 This book sets out to address some of these questions in ways that may have practical import for legislation and policymaking.

Beyond a discussion of what genocide means, and how we might apply it to understanding the IRS system and the Sixties Scoop, this book also engages with the formation, goals, and operations of the TRC and how it dealt with the genocide question. This study is based on a decade and a half of archival research, interviews, and conversations with Indigenous leaders, academics, activists, Survivors, settler political leaders, civil servants, and many others. Also important was my participation in the work of the TRC, and in numerous events, gatherings, Survivor reunions, and conferences. I also draw from interviews I conducted with Survivors at the National Residential School Survivors Society in August 2011 through the generosity of Michael Cachagee and his colleagues.

A caveat is in order: I consider only a segment of Canadian settler history and politics. It is emphatically not my contention that, in assessing genocide, we should stop at the schools. Others have already discussed the deliberate starvation of Indigenous peoples on the Plains as genocide; likewise, the Sixties Scoop fits within the ambit of the convention, as I discuss in chapter 4. My hope is that this work can help all of us to more realistically assess the stakes in conciliation after genocide – a very different concept than reconciliation lite, which focuses on closing gaps while still trying to assimilate Indigenous peoples within a settler society. I share Nêhiyaw political scientist Kiera Ladner’s conclusion: “Reconciliation is not a great big hug.” Instead, it “requires settler society to acknowledge and accept some really uncomfortable truths about how they acquired their privileges. It requires settler society to cede the privilege it has denied Indigenous peoples.”⁵ This has to include the return of stolen land, and there is a lot of it to return.

It is fair to say that some readers will feel uncomfortable by what they read here. In part, this is because the IRS system was not just a “dark chapter” in Canadian history – it is the story of Canada – and the system was integral to our country’s foundation. We walk with the schools every day and will continue to do so into the future because many of the institutions, patterns, and processes put in motion during that time continue. As Cindy Blackstock (Gitksan First Nation) has observed repeatedly, there are more Indigenous children in “care” now than during the height of the IRS era, and the percentage of Indigenous peoples in our prison system is staggering, suggesting to many that these are the “new residential schools.”⁶

I also use the word conciliation throughout, because reconciliation implies the need to revisit some point in time when relationships between Indigenous peoples and settlers were productive, respectful, and healthy. Where the term reconciliation works better may be among Indigenous peoples, where various aspects of colonialism severely weakened some families and communities, introducing forms of lateral violence and inter-generational trauma, while also disrupting several millennia of interdependent relations with animals, plants, waters, and lands.

Indigenous theorist Mary Jane McCallum suggests that the time is ripe for settlers to engage more deeply with the government’s Indigenous policies and practices, but she nevertheless notes “a tendency to remain reluctant to acknowledge genocide.”7 This is certainly true for many outside the university setting, although, with time, a growing number of settler and Indigenous historians, sociologists, political scientists, legal theorists, and others have embraced genocide as a focus of analysis. Anishinaabe Elder Fred Kelly has proposed the term aangone’itewin, a composite of aangone (“extinction”) plus the suffix itewin, which “refers to the act of exterminating, obliterating, or annihilating living beings; causing extinction of beings.”⁸ As time progresses, we may see more Indigenous understandings of what genocide signifies, refracted through First Nations languages and conceptual world views. These names will complement the names of genocides provided by other groups: Shoah, Holodomor, Porrajmos, Gorta Mór, and others.

Situating My Analysis

No one should write a book of this kind without first clearly situating themselves. My interest in this topic and my approach to it has something to do with my background as a mixed-race political scientist from Treaty 4 territory – that is, Regina, Saskatchewan (Kisiskâciwan). My mother’s family comes from the rural south of Trinidad, and they grew up by the Bronte Estate sugar cane fields, their yard sometimes filled with cane ash during the burning season. My ancestors were brought over from India as indentured labourers in the nineteenth century. British rule in the subcontinent involved power politics and the use of famine as a tool of colonial policy. My mother attended a mission school originally run by the Presbyterian Church of Canada. My father’s family is from Jersey and Scotland and goes back to the 1760s in Nova Scotia. They came as farmers after the Highland Clearances, after the Acadians had been forcibly removed from the region, and during the long-term destruction of the Indigenous peoples in that area.

In Regina, I spent my formative years in a stucco bungalow in the south end, enrolled in a French immersion program, and raised within a small Caribbean community, with a multitude of uncles, aunties, and cousins. I delivered the Leader Post, a newspaper founded by one of the architects of the IRS system – Nicholas Flood Davin. It was virtually impossible to live in Regina and not be unsettled by the stark segregation of the city between the affluent, largely white suburbs and the poor east-downtown core and North Central, home to a large proportion of the city’s Indigenous peoples.

As someone who looks visibly different, I was often unsettled by the racial and social dynamics in my community and was sometimes a target of these dynamics. Bullying and physical abuse were common at my school, and they gave me a low opinion of human nature and authority figures as I was growing up. My Indigenous friends were (inexplicably to me then) raised in white adoptive homes. When discussion of the residential schools surfaced during my high school years, I had little problem believing that something was very wrong with our prairie society. In an overview of Saskatchewan in 2016, Maclean’s reported that of the 265 most powerful positions in the province, 4.5 per cent were filled by Indigenous peoples. Only 2 of 101 judges are Indigenous, in a province where 81 per cent of inmates in provincial jails are Indigenous. Saskatchewan was also the home of the last federally funded Indian residential school (Gordon’s). One of its Survivors, Darren Maxie, recalls an important lesson he learned about the nature of power in the province: “It is their system, not ours,” he observes. “Every institution belongs to them. We are not allowed in.”9

Indigenous Peoples as Self-Determining Nations

Definitions of Indigenous peoples are contested, not least because of the power dynamics involved in those definitions. Canada’s 1982 Constitution recognizes three classifications of “Aboriginal” peoples: First Nations, Inuit, and Métis. Within these categories, the state has divided Indigenous peoples into those with “status” and those without. The 2016 census indicates that there are 1,673,785 Indigenous peoples, comprising 4.9 per cent of the population. Of these, 744,855 are recognized as First Nations with Indian status, with 44.2 per cent living on reserves. The number of First Nations with status has risen by 12.8 per cent since 2006, while the number of Métis has doubled since that time.10 Having status means, in most cases, being subject to the 1876 Indian Act, a political instrument that has reduced the political power and numbers of Indigenous peoples by dividing them into “bands” and imposing on them a settler colonial administrative and political structure. Indigenous, Aboriginal, Native, and Indian are settler colonial terms that gloss over the national and political attributes of individual First Nations. In its 1996 report, the Royal Commission on Aboriginal Peoples (RCAP) identified between sixty and eighty Indigenous nations that might viably exercise political rights to self-determination.¹¹

This book also foregrounds the specific targeting of Indigenous women by the settler state, which has sought to dismantle matrilineal forms of governance in many Indigenous nations. In a powerful intervention, Kanien’kehá:ka anthropologist Audra Simpson documents how Haudenosaunee women played a central role in all aspects of political life, representing “an alternative political order” to Western settler governance. They had the power to appoint and also dismiss chiefs, control property, and transmit their clan identity to future generations, thereby safeguarding the survival of the nation.¹²

Indigenous women are often forced to make some of the most difficult choices. One Survivor who shared her experiences with me disclosed how she “married a non-Native so my children would never go to the schools.”¹³ There are many layers to a statement like this. That the Indian Act was overtly sexist is one layer; that women would willingly end their existence as status Indigenous peoples and choose to pass on that non-status to their children to spare them from pain is another. The Indian Act and other legislation has facilitated the abuse of Indigenous women for well over a century, and much of the lateral violence within Indigenous communities traces its origins to the violence of colonialism. Recent statistics provided by the National Inquiry into Missing and Murdered Indigenous Women and Girls (NIMMIWG) indicate that, in 2015, 24 per cent of homicide victims were Indigenous women, making them twelve times more at risk of going missing or being killed than other women in Canada.14 In this era of #MeToo campaigns, and the NIMMIWG, we must actively counter the disproportionately negative effects of settler society on Indigenous women.

That Indigenous nations were self-determining political actors was affirmed through the 1764 Treaty of Niagara. Some 2,000 Indigenous representatives from twenty-four nations met with William Johnson (speaking for the Crown) and established a system of relationships for selectively sharing lands with the Crown. The treaty recognized Indigenous ownership of the land and premised European settlement on Indigenous consent. The treaty established clear lines of authority, and it gave the Crown responsibility for keeping local colonial administrations in line so they would not bother Indigenous peoples in the practice of their governments and in their use of their resources and lands. At Niagara, Two Row Wampum belts were exchanged, conveying for Indigenous peoples an “understanding of a mutual relationship of peace and non-interference in each other’s way of life,” as John Borrows carefully describes it. The treaty’s oral implications recognized Indigenous self-government and “an alliance between sovereign nations.”¹⁵ The Covenant Chain belt, also part of the treaty process, depicted two individuals holding hands, representing distinct peoples who were also interdependent.

The early period of treaty-making coincided with the relative strength of Indigenous peoples. Early agreements dealt with peace, friendship, and trade, and they were often conducted on terms of equality, carefully observing Indigenous diplomatic protocols, such as smoking a calumet, exchanging gifts, intermarrying to promote kinship relations, and other means. Later periods of treaty-making from the late eighteenth century were marked by a decline in Indigenous power and a commensurate increase in the relative power and size of European populations. While decolonization proceeded in much of the world after 1945, Indigenous peoples in settler states were hampered by the UN’s “salt water” thesis from 1960, which asserted that colonies seeking independence as sovereign states had to be geographically separated from the colonizing power by a body of water.

Because I am focusing on the Indian Act as the primary legislative vehicle for forcible transfer, my emphasis is on First Nations with status, and this emphasis may be less applicable to the situations of Métis and Inuit peoples. Métis comprised about 9 per cent of the children who attended residential schools, but they were not a continual target of forcible transfer by the federal government, as they were deemed to fall within the purview of the provinces. Métis were certainly targets for religious conversion alongside other Indigenous children, and they were an integral part of the Sixties Scoop. The TRC’s Final Report notes that Métis were at every school and “would have undergone the same experiences – the high death rates, limited diets, crowded and unsanitary housing, harsh discipline, heavy workloads, neglect, and abuse.”16 In late 2017, I asked Senator Sinclair for his opinion as to whether Métis were also victims of UN-defined genocide, to which he replied, “I think the intention with the Métis in residential schools was also to remove them from their culture and their language and to assimilate them into mainstream Canada. And that implicates the forcible removal with the purpose of doing away with the culture, with the cultural group.”¹⁷

Equally, this study does not offer a detailed focus on Inuit peoples, as they were not brought under the colonial umbrella of the Indian Act until 1939, following a Supreme Court decision. The federal government had little interest in the North initially, and it was only during the 1950s that the situation changed. Before 1940, residential schools were run by the churches, and few children attended them. This increased, beginning in the 1950s, to such an extent that at the height of the IRS system, a higher proportion of children attended residential schools in the North than in the South. Many schools comprised a hostel and integrated school for Indigenous and non-Indigenous children. There were important differences but also similarities – in the disruption of values and skills, levels of abuse, loss of language and culture, and estrangement from families when children returned to their communities.¹⁸

Settlers

While a mental image of Euro-Canadians may leap to mind, there is sometimes a question mark about racialized peoples since we function within a system that marks out European identities as normal and unproblematic, while representing others as “ethnic” or “multicultural.” Thus, we have divisions between those who are “tolerated” and those who do (or do not do) the “tolerating.” It is true that people like my mother’s side of the family were not envisaged in the British North America Act (BNA Act), were purposefully barred from entry into the Dominion, and were denied a legal relationship with Indigenous peoples by exclusion from treaties. However, given that many racialized peoples see their primary identity as “Canadian,” a self-identity as a settler may be valid. One might define settlers in its broadest sense as everyone who is not Indigenous, while also making distinctions, where appropriate, between European settlers and racialized settlers, and those whose ancestors were brought to this continent against their will, such as the descendants of enslaved Africans.

I share Métis writer and lawyer Chelsea Vowel’s suggestion to understand settler as a “relational term,” signifying someone who engages in the “deliberate physical occupation of land as a method of asserting ownership over land and resources.”19 Settlers, as Stó:lō scholar Dylan Robinson observes, can also be defined as those who bear “intergenerational responsibility” for “intergenerational perpetration.”²⁰ This definition is useful in helping us understand that whether we are newly arrived in Canada and are non-white (like my mom’s family) or mixed, or are white settlers (like my dad’s) who trace our families back generations, our choices right now determine whether we are contributing to ongoing problems of colonization, or working to help roll back and alleviate those problems.

At the same time, Anishinaabe legal theorist Aaron Mills reminds us that settlers and Indigenous peoples are not simply one thing or another. Many people have both Indigenous and settler ancestry and identify with one or both groups. The key issue for Mills is not so much a label as, rather, what view of reality we adopt, whether it be a settler view of the earth as property and commodity or an “earth-centred Anishinaabe view of treaty constitutionalism,” which can frame our role as settlers within Indigenous legal traditions, instead of those principally derived from Europe.21

Survivors

Throughout this book I use the term Survivor, which the TRC defined as “a person who persevered against and overcame adversity … someone who emerged victorious, though not unscathed … someone who had taken all that could be thrown at them and remained standing at the end.”²² Ted Fontaine, former chief of the Sagkeeng First Nation, in his memoir Broken Circles, describes the situation this way: “Most survivors left school in their teens or early 20s, and most didn’t live long.”²³ Arthur Bear Chief credits his ability to endure to his traditional Blackfoot teachings, observing that those who were able to create good lives for themselves did so because of “our Indian spirit and our determination to overcome obstacles even in the most difficult situations. I praise my ancestors and grandparents for giving me both.”²⁴

The Schools: An Overview and Context

It is difficult to pinpoint where legacies of the IRS system begin and end because the creators of the system wanted their effects to complement larger, parallel processes of settler colonization. At the beginning, as military allies, and as invaluable partners in the fur trade, many Indigenous peoples had clear economic value to the early explorers and colonizers. The change in economic focus from trade to resource extraction and agriculture eroded and eventually destroyed any semblance of partnership, to be replaced by a sense that Indigenous peoples were an impediment to a larger settler colonial project of taking over the land and substituting Indigenous civilizations with transplanted European forms.

In the first half of the nineteenth century, the settler population of Upper Canada increased from under 100,000 to almost one million, while the Indigenous population dropped to 1 per cent of the total.25 The Treaty of Niagara, which informed some of the early relations between Indigenous governments and colonial authorities, gave way to a far more coercive relationship through policies of “civilization” and assimilation. By 1860, the Indian Affairs portfolio was transferred to pre-Confederation Canada from the British imperial government. After Confederation, the British Crown devolved many of its responsibilities to the new government, violating Indigenous understandings of the original treaty.

Certainly, John A. Macdonald refused to see Indigenous peoples as treaty partners, cynically describing them as being like children, “incapable of the management of their own affairs,” a sentiment that legitimated his paternalistic policies of “guardianship.”²⁶ The 1876 Indian Act consolidated the pre-existing colonial legislation dealing with Indigenous peoples, who became wards of the state, with few political rights within the new country. A male-only electorate was empowered to elect a chief and council, who managed some local affairs, but were largely beholden to Ottawa-appointed Indian agents. In many cases, treaties were requested by Indigenous nations seeking to ward off starvation or to create some framework for the future in a context of European settlement. However, while many Indigenous nations sought treaty under duress, their negotiators were skilled and did not surrender lands in the ways presented in the written treaty texts; their own conceptual world views often did not permit more than sharing responsibility for the land.

The IRS system was created as a partnership between the federal government and the four mainstream Christian churches, building on earlier individual schools established by various Catholic entities and by Protestant missions in Ontario, the Northwest Territories, and British Columbia. The government became very interested in working with the churches to expand the network of residential schools after acquiring, a year after Confederation, Rupert’s Land and the lands to the north, both of which contained predominantly Indigenous populations. For the government, the IRS system promised to reduce government expenditure on Indigenous peoples by converting them to Western-style farming practices and by eliminating Indian status through enfranchisement. The end goal was to do away with Indigenous reserves and Indian status. The schools were designed to assimilate and to end the separate existence of Indigenous peoples.

The formal IRS system began in 1883 with the establishment of three “industrial schools” on the Prairies, built by the government and run by the Catholic and Anglican Churches. These were larger than the earlier boarding schools, which had been established by the churches and funded by government. Boarding schools were normally located close to reserves, while the industrial schools were farther away. By 1923, any official distinctions between these types of school had ended, and both were being funded by government on a per capita basis and run by the churches, an arrangement that continued until 1969.27 Overall, approximately 150,000 Indigenous children attended a network of 139 Indian residential schools (as recognized under the Indian Residential Schools Settlement Agreement, or IRSSA). During the IRS era, Indian Affairs expanded significantly, from a branch of the Interior Ministry to a department in its own right, slowly building up its power and influence across the country.

The system was but one aspect of a much larger settler colonial project, which used coercive instruments, including starvation, forced removal, and the concentration of peoples onto small and isolated reserves, often away from fertile lands, which the government then opened up to European settlement. Particularly implicated was Macdonald, whose practice was “to starve uncooperative Indians onto reserves and into submission.” James Daschuk documents how the government targeted food, clothing, shelter, and tool sources such as the buffalo, and used the denial of rations and targeted starvation as techniques for herding nations onto small reservations by the 1880s. Once on these reserves, most people were largely dependent on and subject to government control.²⁸ When I interviewed Senator Murray Sinclair on Daschuk’s conclusions in 2017, I asked whether the crimes outlined in his book could be violations of the UNGC. He replied, “No doubt in my mind … that if it happened now, it would be an act of genocide because it’s a deliberate infliction of conditions of life upon a group of people for the purpose of, essentially, either annihilating them or forcing them to give up their identity. And so that amounts to the same thing.”29 Over the twentieth century, a larger climate of cultural, spiritual, and political suppression made it exceedingly difficult to resist the coercive nature of the system, as I discuss in chapter 3.

The End of the IRS System, Public Awareness, and Compensation

Indigenous resistance to settler colonialism goes back to the beginning. By the twentieth century, groups such as the League of Indians of Canada, the Allied Indian Tribes of British Columbia, and the council of the Six Nations near Brantford, Ontario, vocally advocated for the return of stolen lands and many other issues. The denouement of the IRS system began as the Second World War drew to a close. In 1944, some Indian Affairs officials, notably the superintendent of welfare and training, Robert Hoey, articulated the need for a policy shift from the residential system, which, he argued, should “slowly and gradually close.” In 1949, the Special Joint Committee of the Senate and House of Commons promoted integrated day schooling over residential schools as a preferred vehicle for assimilation.³⁰

As the IRS system very slowly wound down, the provinces began to assert a larger role in the lives of Indigenous children, heralding the era of the Sixties Scoop. The 1951 amendments to the Indian Act, specifically section 88, delegated to the provinces the power to make general laws that Indigenous peoples would be obliged to obey, despite their lack of consent to such changes.³¹

By the mid-1960s, Indigenous organizations were able to better assert their interests. In 1967, Métis leader Howard Adams chaired a national conference at which delegates and speakers publicly outlined problems of the IRS system, opening up a larger debate about colonialism; the conference resulted in speaking-out assemblies, talk-ins, powwows, and increased links with the American Red Power and Black Power movements.³² In 1969, the funding relationship between the federal government and the churches ended, and by 1970, the process of transferring control of some of the schools to Indigenous bands began; the first school to be transferred was the Blue Quills School in St. Paul, Alberta. Over the next two decades, approximately a dozen schools were transferred to band operation. By the 1980s, organizations such as the Children of Shingwauk Alumni Association began to help Survivors. Co-founder Michael Cachagee (Chapleau Cree First Nation) and his colleagues were instrumental in promoting awareness of the crimes in the schools and organizing to achieve healing, redress, and compensation.

As Survivors organized, North America was rocked by growing public awareness of the sexual abuse of children in Catholic-run schools, scandals that in Canada culminated in the 1989 outcry over widespread abuse at the Mount Cashel Orphanage in Newfoundland. This period created a window of opportunity to engage with the IRS system. Phil Fontaine (Sagkeeng First Nation), who later became national chief of the Assembly of First Nations (AFN), openly discussed his history of physical and sexual abuse and encouraged others to come forward. Fontaine’s revelations took place against the backdrop of the Oka crisis in Quebec, where Kanien’kehá:ka warriors faced the Quebec military and the Canadian Armed Forces to defend their traditional lands (including a burial ground) from being expropriated by the Oka town council for a golf course expansion.

This standoff, together with the public revelations about the IRS system, laid the foundation for the RCAP in 1991. Its 1996 report documented the extent of the physical and sexual abuse in residential schools (as well as their goals of assimilation and cultural destruction). The RCAP advocated that a public inquiry be established to listen to Survivors, collect evidence, and recommend forms of compensation. It was hoped that the government would issue a formal apology and help rebuild damaged lives and communities, while promoting public knowledge of IRS abuses through education.33

In response, the federal government released its “Gathering Strength” report in 1998, which led to the formation of the Aboriginal Healing Foundation (AHF) in the same year, and Indian Residential Schools Resolution Canada in 2001.³⁴ An alternative dispute resolution process to compensate Survivors was established during this time. Compensation varied by province, and it was skewed against Indigenous women and their experiences of abuse. Those who had attended Catholic-run institutions received only government money – no compensation from the Church.35 Consequently, the next decade saw widespread litigation against the churches and the federal government. By early 2005, some 13,400 individual suits had been filed, with large class-action suits such as Baxter, in which 90,000 Survivors sought $12 billion in compensation.³⁶

During this time, a number of key legal changes created more permissive conditions for Indigenous peoples to hold the churches and the federal government to account. Provinces changed their Limitation Acts during the 1990s to remove limits on the amount of time within which adults could be charged with the sexual assault of a minor, while provincial legislatures permitted class-action suits to be undertaken.³⁷ Many forms of abuse, however, were never actionable in Canadian courts, such as “loss of culture and language, alienation of parental love, alienation from community, deprivation of life skills required for living in remote communities.”³⁸ From 1995 to 2005, a range of court decisions also allowed for vicarious liability – holding the institutions that controlled the schools liable for crimes committed by their employees.³⁹ Less positive were court decisions from 2000 to 2003 that ruled that only living former residential school students could claim compensation. Their heirs could not. This allowed courts to compensate individual living IRS Survivors, but not the estates of those who had died before the class-action suits were concluded.

In 2004, the AFN played an instrumental role in securing a settlement that was to move well beyond seeking money for sexual and physical abuse. While most lawyers aimed primarily to maximize monetary settlements for their clients, the AFN sought a truth and reconciliation commission as well as commemorative, healing, and other activities. The IRSSA was signed by the parties in April 2006, following which courts in all nine jurisdictions that had heard the class-action suits had to approve it. By January 2007, the courts had certified and approved the agreement, which was formally adopted in September of that year.⁴⁰

The agreement set out a variety of compensatory mechanisms, including Common Experience Payments (CEPs), an Independent Assessment Process (IAP) for more serious abuses, a commemoration fund, funds to promote healing and health support, and the mandate for the TRC. It also laid the foundation for pressuring the government to deliver an official apology, something the Conservative government initially refused to do. In 2008, Prime Minister Harper finally delivered an official apology on the floor of the House of Commons; he even recognized that “some sought, as it was infamously said, ‘to kill the Indian in the child.’”41 The IRSSA was hardly perfect, and it covered only certain categories of Survivor and certain schools. Schools run by provincial governments were excluded, as were religious schools without government funding and day schools. Métis students in provincial residential schools were not included, nor were Indigenous children who had attended church-run residential schools not primarily designed for Indigenous children.⁴² According to the TRC’s legal counsel, Tom McMahon, over 1,500 residential institutions for Indigenous children were not included as part of the IRSSA, as per the federal government’s decision.⁴³

Both Newfoundland and Labrador also had residential schools, but as Newfoundland joined Canada only in 1949, its schools were not part of the agreement. Only recently have these one thousand IRS Survivors obtained a $50 million settlement, followed in October 2017 by an official apology.⁴⁴ Another outstanding issue concerned Survivors caught in an “administrative split,” where, typically, a student residence was operated by a church and a day school by the federal government. While the government funded both, some IAP claimants were denied compensation “on a technical argument that certain schools were transformed into day schools during an individual’s attendance.”⁴⁵ At the time of writing, the challenges for Survivors are far from over.

Structure of the Book

In chapters 1 and 2, I critically examine how genocide is defined in international and Canadian law, and I discuss how we might apply a commonly accepted legal definition to the Indian residential schools. The first chapter features analysis of what we might call the “legalist” tradition, whereby genocide is understood through the Genocide Convention and case law from international and domestic legal settings. In the second chapter, I explore “pluralist” conceptions, where strict legal understandings are critiqued for their (sometimes) Eurocentric presumptions. Here I engage with the work of some Indigenous theorists and their articulations of collective identities, including interdependence with lands, animals, plants, waters, and other aspects of the natural environment, as well as webs of relations between peoples and fluid forms of group membership, including kinship relations.

In chapter 3, I begin with a brief history of the IRS system, present an overview of government legislation, and feature a discussion of church and government intentions in establishing and maintaining the system. I also explore how we can best understand processes of transfer through a detailed engagement with the fate of Indigenous children within the system. Chapter 4 on the Sixties Scoop follows closely from the previous chapter, exploring how policy responsibility for forcible transfer moved from an exclusive reliance on federally funded residential schools as a vehicle of genocide to a more province-based, decentralized system of forcibly removing Indigenous children through child welfare agencies.

The TRC is the focus of chapters 5 and 6, in which I first discuss its mandate and its lack of judicial power under the IRSSA. Second, I provide an overview of the TRC’s structure and some of its activities over its six-year timeline. Third, I analyse how the TRC addressed the question of genocide during its mandate and in its voluminous Final Report. Chapter 6 provides a short analysis of how the TRC broached the painful subject of missing children, and whether, through its work, we can understand these deaths as genocide.

My focus in chapter 7 is on academic contestation of genocide claims. Here I critically consider three arguments in the literature on residential schools that refute the application of the UNGC to forcible transfer. In chapter 8, I offer a post-TRC analysis of how genocide has largely failed to be recognized in Canadian settler society. A portion of this chapter will examine how the Canadian Museum for Human Rights has privileged five officially “recognized” genocides, while presenting a more ambiguous account of the IRS system. In the second half of the chapter, I consider what settlers understand about Indigenous peoples by examining three governance models and narratives that are deployed (often simultaneously) to define what Canada is and, by omission, what it is not.

In chapter 9, which concludes this short volume, I focus on the future – what does conciliation look like if we understand the IRS system as genocide? Much of this chapter is about the return of Indigenous land, and it explores other ways that those of us who are settlers can work to roll back the settler state in the lives of Indigenous nations so that the current resurgence has a meaningful chance of leading to practical, purposeful, and successful forms of Indigenous self-determination. I conclude with some observations as to how Canada can achieve forms of (re)conciliation into the future. I stress that the process will be slow and will involve rethinking the nature of Canada as a Westphalian state possessing absolute sovereignty over the territory and peoples it occupies and administers. The federal government’s support of Romeo Saganash’s Bill C-262, which will incorporate the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) into Canadian law, could be an important step forward. The bill passed its third reading in the House of Commons in early 2018 and was then introduced to the Senate in November of that year.

I am aware that there is opposition to the idea that the IRS system was genocidal, and debate and discussion is really just beginning. In his 2017 book Residential Schools and Reconciliation, the eminent historian James R. Miller critiqued my earlier writings on genocide (alongside similar claims by criminologist Andrew Woolford). He cautions that “the use of an explosive term like ‘genocide’ is socially dangerous: it can be a barrier to progress to reconciliation.”⁴⁶ I agree with Miller’s general proposition that genocide may be explosive if used merely for rhetorical effect, but this is not my goal here. Rather, as will become obvious throughout this book, genocide is neither hyperbole nor an unwarranted accusation. Rather, I use genocide as a carefully considered analytical tool to better make sense of Canada’s past and aspects of its ongoing actions into the present. My conclusions echo those of Senator Sinclair, the work of a large number of Indigenous academics and activists, and the AFN’s determination of genocide in 2002.

In promoting reconciliation, there is always the temptation, as Tuck and Yang predict, to attempt “moves to innocence,” which would “reconcile settler guilt and complicity, and rescue settler futurity.”47 I see this book instead as a move to responsibility, in the hope that a clear focus on genocide will disabuse those of us who are settlers of the notion that conciliation will be easy. Genocide recognition may help settlers to realistically appraise the stakes involved. I suspect that these stakes will be readily apparent to many Indigenous readers. I devote much of the final chapter to a discussion of what a move to responsibility might look like. If this book accomplishes its limited goals, it will provide useful insights for further dialogue and discussion about the IRS system and settler colonialism more generally, as we work to build better and fairer societies for us all, societies that embody forms of respectful and complex sovereignties.