An article in The Canadian Indian in 1891 tidily summed up a prevailing view of Aboriginal people and agriculture in North America: “Prior to the advent of the Europeans, the North American Indians were not an agricultural people; the cultivation of the soil was considered among them as a degrading occupation for the men of the tribes, who left it to the old women and the children.”2 The view that First Nations people were not agricultural—and even if there was some farming it was left to women and was thus half-hearted, sporadic, sloppy, and negligible—prevailed despite clear evidence to the contrary. Well before the treaties of the 1870s there was plenty of evidence to the contrary in the region that became Manitoba. In some cases there were agricultural settlements with communally cultivated land, and in others, individual farms.3 Agriculture long predated the arrival of Europeans in Manitoba, and later drew on and absorbed techniques and crops brought by fur traders, missionaries, and early settlers.
At the time of the treaties of the 1870s the presence of First Nations farming should have been welcomed by the new Canadian regime, as the encouragement of agriculture was presented as a government priority. Pre-treaty farming activity in Manitoba was used as a rationale for not providing the same level of assistance in the establishment of reserve agriculture as was offered to First Nations further west. Yet the agriculture of First Nations people also posed vexing problems. If they were farmers, they had property, and were land owners in actual occupation. But it was vital to the enterprise of establishing colonial rule in western Canada to cast First Nations as the antithesis of agriculturalists—as hunters, incapable and ignorant of farming, and thus having no concept of true land ownership. It was important to draw clear distinctions between the “settlers” who were the farmers and homesteaders (and who would have virtually unrestricted access to farm land) and the “Indians” who would need very little, would be restricted to reserves and have almost no opportunity to expand their holdings. The presence of First Nations farmers needed to be suppressed—erased, even—and confined to reserves. Deliberate and strenuous efforts were needed to accomplish these goals. Torturous twists and turns were required to ensure that no one defined as “Indian” actually owned land off or on reserves, even in cases where land was occupied and farmed before the treaties. As Patrick Wolfe has noted, the object of settler-colonization was the land, and settlers wanted Indigenous people to vanish from the land. The dominant feature of settler-colonization was replacement.4 The presence of First Nations farmers, particularly off reserves, posed vexing questions and they had to vanish from the post-1870 landscape.
Any window of opportunity to retain or acquire individual parcels of land was boarded up and nailed shut, yet First Nations farmers and would-be homesteaders tried to open these windows. They asked pointed questions about their rights to individually own and sell land on and off their reserves, and about whether they had the right to the homestead grant of 160 acres available to male (and some female) newcomers. Did the assignments of land under the treaties include individual plots of land they already possessed? Could an Indian who resided on and farmed land in advance of the treaties claim that land as his homestead? Could an “enfranchised Indian” homestead? Could an Indian from eastern Canada move west and file on a homestead on the prairies? Answers were almost always “no,” and if “yes,” each case had to be carefully scrutinized. The priority of the Canadian government was the settlement of new immigrants on the land, and they had many advantages and opportunities to expand their property beyond the initial grant of land. By contrast, First Nations had virtually no opportunity to expand their land base after reserves were surveyed; the treaties provided a mechanism to diminish but not to increase reserve land. This article focuses on present-day Manitoba, as it is part of a co-authored study of First Nations agriculture in that province, but sources from other locations are also included to shed light on the larger region of western Canada.
In How the Indians Lost Their Land: Law and Power on the Frontier, legal historian Stuart Banner found that in the eighteenth century and earlier Europeans generally viewed Native Americans as the proprietors of their land with rights to that land. This perception was altered in the nineteenth century when they were uniformly perceived as wandering hunters who did not actually own any land.5 The survey and rapid sale of the land during the era of intensive settlement was expedited by this new perception of all Aboriginal people as rambling hunters who might occupy but not own the land, and as being uninterested in agriculture. In western Canada this change of emphasis developed in a more condensed period of time; the two views overlapped for a while because of the presence of First Nations agriculture. Members of the 1857 H.Y. Hind Red River Exploring Expedition found Aboriginal agriculture in many localities in present-day Manitoba. At this point—when there was debate in the Canadas about whether “Rupert’s Land” would be a valuable addition to the proposed confederation of British colonies—it was useful to describe and even to praise the nature and extent of Aboriginal agriculture rather than to erase this evidence. Assigned to assess the fertility of the soil and potential for agricultural settlement, members of the expedition acquired a great deal of information on soil quality, crops, the growing season, and frost from Aboriginal farmers.
Members of the 1857 Hind expedition found many generations-old Aboriginal agricultural sites located at strategic provisioning sites along well-worn fur trade routes.6 At Garden Island, northwest of the Red River settlement, there were “considerable fields of corn.” The Aboriginal farmers reported to a member of the 1857 expedition surveyor Simon W. Dawson that “they had cultivated the land from time immemorial,” and that they had not once “known an instance where their crops had been injured by frost.” At Fairford, crops of potatoes, onions, and turnips were grown; it was a stopping place for the brigades, and had long raised produce to support the fur trade. At Islington Mission or the White Dog or Chien Blanc, “all kinds of farm and garden crops” succeeded well. At Fort Alexander, crops of wheat and potatoes “of great size and excellent quality” were observed in early September 1857. Crops of Indian corn were reported as successful in many parts of the southeastern rim of Lake Winnipeg. The most substantial agricultural “Indian settlement” was St. Peter’s on the banks of the Red River north of the Forks (present-day Winnipeg).
While the presence of Aboriginal agriculture was useful to the 1857 expedition, it was less so just a few years later once it was determined that “Rupert’s Land” was to be absorbed by the new Dominion of Canada. The erasure of the presence of Aboriginal agriculture was now more important; farmers had to be recognized as having property rights, and if they were truly farmers they might need more than a little land. Hunters and fishers might have some occupancy rights, but were not regarded as actually owning the land; it was helpful to cast all First Nations as hunters without fixed abode, as it was then easier to claim that the land was in fact not theirs. Architects of the new region of the Dominion assumed that the land was Canada’s after the 1869–70 transfer from the Hudson’s Bay Company, even though First Nations remained “the real sovereigns and owners of land in most of Rupert’s Land in 1870.”7 Canada, however, proceeded as if it were sovereign; key decisions about how the land was to be parcelled out were made well before the first treaty of 1871. It had already been decided, for example, that the majority of the territory would be Crown land, that a vast amount of land would go to the Hudson’s Bay Company and to the Canadian Pacific Railway, and that 1.4 million acres would go to the Métis. A small circle in Ottawa decided on the survey system and land policy well in advance of treaties, and there was almost no debate in Parliament about these measures; great haste in moving forward with the survey was stressed by parliamentarians. It was the survey, and the maps to be produced that documented that survey, that would declare the land as belonging to Canada. In May 1869 Sir George Cartier stated that “It was important that not a month or day should be lost, after the territory became ours, in organizing a Government and having the lands surveyed, and their character made known throughout this country and Europe.”8 As soon as the Queen’s Proclamation was issued declaring the transfer of Rupert’s Land to Canada, no time should be lost in “laying out townships” for settlement, Cartier declared. The presence of First Nations farmers proved inconvenient to all of these plans and the haste required for these measures.
Representations of First Nations people as incapable, disinterested, and unwilling farmers—and instead as hunters, fishers, and gatherers—took root in the late nineteenth century. The Plains people were cast as “thoughtlessly, carelessly living on the surface. Like the butterfly flitting from plant to plant, so these men roamed and camped and dreamed, not of mines and means which were above and beneath them on every hand.”9 It was useful to insist that First Nations had a weak and very different concept of land ownership and property—to declare that they had fuzzy and imperfect ideas about communal property that did not imply legal ownership. Their “tribal communism” was condemned as “hurtful to individuality, and without this no race of man can progress.” “This is communal; the individual has not yet come in. It is our work to bring in the individual.”10 Department of Indian Affairs officials insisted their “wards” had no concept of private property, and claimed their goal was to introduce individual ownership, as this was critical to the abolishment of what was described as the “tribal” or “communistic” system.11
When treaty relations began in 1871, the presence of First Nations farmers should have been welcomed, as Canadian federal authorities claimed that the encouragement of agriculture was a goal of their administration and of the Great Mother, Queen Victoria, herself. Lieutenant-Governor Adams Archibald told the First Nations assembled at the negotiation of Treaty One at Lower Fort Garry that the Great Mother “would like them to adopt the habits of the whites, to till land and raise food, and store it up against a time of want. She thinks this would be the best thing for her red children to do, that it would make them safer from famine and distress, and make their homes more comfortable.”12 Yet Archibald also noted that there were First Nations farmers who were long established in Manitoba. Referring to St. Peter’s he said:
I drove yesterday through the village below this Fort. There I saw many well-built houses, and many well-tilled fields with wheat and barley and potatoes growing, and giving promise of plenty for the winter to come. The people who till these fields and live in these houses are men of your own race, and they show that you can live and prosper and provide like the white man. What I saw in my drive is enough to prove that even if there was not a buffalo or a fur-bearing animal in the country, you could live and be surrounded with comfort by what you can raise from the soil.13
At one level the knowledge of and proficiency in agriculture of Manitoba’s First Nations was welcomed by federal authorities. Their agriculture was used as a rationale for providing little to no instruction and assistance compared to the First Nations further west, where a program of home farms and farm instructors began in 1879. Indian Commissioner J.A.N. Provencher wrote in 1875 that because the Manitoba First Nations were “sufficiently familiar with the elements of industry and agriculture,” and because the Manitoba reserves were near to settlements “the government is exonerated from the obligation, which it has to fulfill elsewhere, of establishing model farms, erecting mills etc.…”14 Settlements surveyed as reserves such as St. Peter’s were also useful, as they could illustrate the immediate successes of the agricultural objectives of the federal government.
At the treaties, Manitoba First Nations negotiators conveyed knowledge of the land requirements for successful agriculture, and were concerned that they have an adequate land base, particularly for future generations. Commissioner Provencher wrote in 1875 that, “the Indians, as may be expected, claim the exclusive right of property to lands: they deny to the Government the right to possess without their consent; and, as a natural conclusion, reserve to themselves the right of stating their terms, and of selecting their Reserves.”15 They initially asked for very large reserves; according to Commissioner Wemyss Simpson, “the quantity of land demanded for each band amounted to about three townships per Indian, and included the greater part of the settled portions of the Province.”16 They expressed concerns—not only about the present generation, but their future needs; as one Manitoba chief stated at the Treaty One talks, “I understand thoroughly that every 20 people get a mile square; but if an Indian family of five settles down, he may have more children. Where is their land?”17 The response of the Canadian and Crown representatives at the Treaty One talks was that reserves could expand to meet growing needs. Adams Archibald stated “whenever his children get more numerous than they are now, they will be provided for further West. Whenever the reserves are found too small the Government will sell the land, and give the Indians land elsewhere.”18 This never happened; in fact, First Nations reserves were diminished, no mechanisms were provided to expand reserve land, and they were unable to acquire homestead land outside of reserves as individuals.
An adequate land base for successful agriculture was less likely for Manitoba First Nations than for newcomers, or for other Indian reserve farmers to the west as well as to the east. The Manitoba treaties (One, Two and Five) provided much less land to First Nations (160 acres per family of five or less in proportion to family size) than to newcomers (160 acres to individual males regardless of marital status and family size and to women who qualified as sole heads of families.) The Manitoba treaties also provided considerably less land than those negotiated with First Nations to the west and east.19 In Treaty Three, of the North-West Angle Treaty, reserves were not to “exceed in all one square mile [640 acres] for each family of five, or in that proportion for larger or smaller families.”20 Treaty Four, which included a small portion of central western Manitoba, also provided one square mile or 640 acres per family of five. The Dakota of Manitoba, who were not regarded as “British” Indians, were provided with even less land. They were excluded from the treaties, and were granted reserves as “a matter of grace and not of right.”21 Two reserves were allotted in 1874, at Oak River and Bird Tail Creek, and a third at Oak Lake in 1876; these were surveyed on the basis of 80 acres for each family of five.
The First Nations of Manitoba proved complicated to deal with and to dismiss as non-agriculturalists and thus non-land owners. There were a number of settlements with cultivation well before the treaties, and several of these were surveyed as reserves. St. Peter’s, the largest and most prosperous of the Aboriginal agricultural settlements, was surveyed as reserve one.22 This raised a great number of vexing issues, not to be entirely “resolved” in the case of St. Peter’s until the complete surrender and closure of the reserve in 1907–1908. One of the rationales for the surrender was the complicated and competing claims over land on the reserve. Before treaties there were also First Nations settlements, or individual farms outside of the land surveyed as reserves. This situation posed thorny questions, as did the issue of whether an individual defined as an “Indian” had the right to sell a parcel of land owned before the treaties. Altogether there were murky distinctions between the “Indians” who were not supposed to be interested in farming and owning land, and the “settlers” who would be the farmers and land owners of the new day.
In early 1875, St. Peter’s First Nations settlers insisted to federal authorities that it was agreed in treaty talks that the land that was individually owned at the time of the treaty “should be considered their own property,” and that the reserve was to comprise enough land to give each family 160 acres “exclusive of any land [they] held as settlers at the time of signing.”23 The St. Peter’s Aboriginal land owners were in some cases selling their land, within the reserves, to “outsiders”—either Métis or whites. Authorities were alarmed that “property that changed hands since the Treaty is very large, and I have reason to believe that it is always increasing.” Provencher wrote in a December 1875 memo that “many Indians have acquired properties within the actual limits of the Reserve, before the Treaties. They had cleared and improved them and thought they had the power to dispose of them in virtue of a right of absolute property. Many of these lands were sold to whites, or to Halfbreeds, and it is this matter which now makes conflicting claims, which should be settled as soon as possible by a Treaty, or by special legislation, or by an order in Council.”24
Commissioner Molyneux St. John addressed these questions in an 1875 memorandum “in reference to understanding with Indians as to the proprietary rights of Indians in property held by them prior to the negotiation of the Stone Fort or No. 1 Treaty.”25 St. John remembered that he was asked by St. Peter’s First Nations settlers during the treaty talks whether the land set aside for each family was “meant to include the land already occupied by them.” He told them at the time of the treaty that “the allotment now provided for was irrespective of and in addition to their holdings.” While St. John did not recall anything being said about their right to sell the properties they had in advance of the treaties, “the impression on my mind was that the small farms already in possession of the Indians should be theirs absolutely.” Commissioner Wemyss Simpson had the same opinion, and believed that St. Peter’s settlers therefore had the right to sell their property as they had freely before the treaty and before the survey of the reserve.26 Meanwhile, the First Nations settlers of Fort Alexander, who also had occupied land well before the same land was surveyed as their reserve, were told a different story:
All the lands occupied by them inside of the Reserve at the time of the Treaty was returning to and would be kept by the Government for the use of the occupiers who could dispose of it in favour of some member of the same band with the approval of the Indian commissioner, but of nobody else. They have accepted this interpretation of the Treaty, but it is not the same thing at St. Peters, where they say that Mr. Simpson assured them that all the land held by them was private property and that it could be disposed of as they pleased.27
By late 1875, it was decided that the Fort Alexander approach would apply to all First Nations farmers/settlers whose individual property became part of a reserve—they could sell their land, but only to another treaty band member and reserve resident. According to a report prepared by Provencher in December 1875, “all property held by Indians within the limits of the Reserve may remain in the hands of the possessor who would have full power with right to dispose of it in favour of another member of the same Band, but not in favour of persons who were strangers to his tribe.”28 All transfers of property could be made only with the consent of the government.
The 1876 Indian Act further complicated the situation of prior ownership of what became reserve land in Manitoba. After treaties and according to the Indian Act, the legal title to all reserve land was “in the Crown” and was set aside for the use or benefit of a particular band. Plots of land owned and improved before treaties that then became part of a reserve were not truly owned by the individual, although they had the right to occupy the land through a location ticket. Section 10 of the Indian Act declared that “any Indian or non-treaty Indian in the Province of British Columbia, the Province of Manitoba, in the North West Territories, or in the Territory of Keewatin, who has, or shall have, previously to the selection of a reserve, possession of and made permanent improvements on a plot of land which has been or shall be included in or surrounded by a reserve, shall have the same privileges, neither more nor less, in respect of such plot, as an Indian enjoys under a location title.”29 Through a “location ticket,” an individual could occupy the land and it could be passed down to heirs; it was “transferable,” but only “to an Indian of the same band,” and all only with the consent of government authorities.30 Further ensuring that no outsider could purchase, use, or live on land on a reserve, the Indian Act further stipulated that “no person, or Indian other than an Indian of the band, shall settle, reside or hunt upon, occupy or use any land.” Transgressors could be evicted, removed, and punished if they returned.31
Then there was the murky question of land owned individually pre-treaty that was beyond the boundaries of reserves. In the same 1875 memorandum mentioned above, St. John addressed this issue and wrote that at the time of the treaties—and ever since these occupants had been told—their land “would be protected by the Government.”32 Under the Manitoba Act of 1870, it was enacted that “all persons in peaceable possession of tracts of land at the time of the transfer to Canada in those parts of the Province in which the Indian Title has not been extinguished, shall have the right of pre-emption of the same, as such terms and conditions as may be determined by the Governor in Council.”33 Among other directives that dealt with this issue was an 1871 order-in-council that read “parties found upon the lands at the time of survey, having settled upon and improved the same in good faith as settlers under the land regulations, will be protected in the enjoyment of thereof, whether the same be pre-emption or homestead right provided they respectively enter for such right with the Land Office and otherwise carry out the provisions of the said legislation… within three months after the survey shall have been made.”34
In 1875 St. John believed that this clause applied to those categorized as Indians, although in his view Indian land owners were not to have very much land. He described their dwellings as “huts,” suggesting impermanence of the residences that were surrounded by small patches of cultivated land. St. John emphasized that the occupants had been told “they must be content with such small portions of land round their several huts as the government might think proper to give them.” (It might have been drawn to St. John’s attention that most immigrant homesteaders lived in shacks or huts and cultivated only small patches of land for the first several years, yet they remained entitled to the full 160 acres if they satisfied the qualifications when applying for land patents.)
The 1875 policy on land occupied and farmed by Indians before the treaties that remained outside of reserves was that “they would be allowed to hold that property as ordinary settlers by giving proper notice to the officer in the Land Office and that they could sell to whom they pleased with the consent of the agent… but in that case they would have to go and live afterwards in the reserve where they would take their share from the lands not yet divided.”35 They were not to be allowed the option of homesteading the land, as was possible for non–First Nations settlers who occupied land before the transfer. When Indians sold their land, they had no option but to go to live on their reserves. This policy too made its way into Provencher’s December 1875 report: “in regard to those who at the same time possess properties outside of the Reserve, they should have permission to dispose of them in favour of Whites, but only for the purpose of going to reside on the Reserve assigned to the Band of which they are members.”36
The rights of treaty people to the individual parcels of land they owned prior to the treaties should have been bolstered by the Indian Act. Section 70 (a) stipulated that “he shall not be disturbed in the occupation of any plot on which he has or may have permanent improvements prior to his becoming a party to any treaty with the Crown.”37 But they were permitted to occupy this land—not to have legal title to the land—although the Government could compensate them for any improvements. In 1877 it was decided that First Nations individuals who had been in “undisturbed occupancy of certain lands in Manitoba not subsequently included in any reserve” were not “persons” (according to 38 Victoria, Chapter 52) and were not therefore entitled to a patent, or outright ownership, of land they occupied before the treaties. Through an 1875 amendment to “An Act Respecting the Appropriation of Certain Dominion Lands in Manitoba” it was enacted that “persons satisfactorily establishing undisturbed occupancy of any lands within the Province prior to, and being by themselves or their servants, tenants or agents, or those through whom they claim in actual peaceable possession thereof, on the 15th day of July, 1870, shall be entitled to receive Letters Patent therefore, granting the same absolutely to them respectively in fee simple.”38
Were Indians “persons” under this legislation? The minister of the interior, David Laird, consulted with the deputy minister of justice who, in June 1877, “was of the opinion that an Indian does not come within the word ‘persons’ in the Act referred to. By ‘Indian’ I mean one of Indian blood reputed to belong to a particular band and who has not been enfranchised under the provisions of the law.” The position adopted by the Department of the Interior officials as recommended by Surveyor General J.S. Dennis was that “an Indian does not come within the class of ‘persons’ referred to in the Act…and cannot therefore claim a Patent for land of which he was in occupation at the time of the transfer of the territory.”39
If a First Nations owner sold an individual plot of land, the transfer was not valid or binding. Settlers who had purchased land from Indians were given two options—they could buy the land from the federal government at $1.00 per acre, or they could homestead the land, gaining title after three years if they cultivated the land and lived on the claim for a portion of each year. The question was tested in 1876–7 when M.T. Hunter, of St. Andrew’s parish, bought land from an Indian outside of a reserve, “upon which he [the Indian – not named] has resided during the last 25 years and has permanent improvements.”40 Hunter had taken legal advice before he purchased the land and had been told that “an Indian has the undoubted right to dispose of any real estate lying outside of a Reserve.” However, Hunter was informed in 1877 that the transaction was not valid, and that he had to purchase the land from the government or homestead the land. Chief Surveyor J.S. Dennis wrote a memorandum stating that an assignment of land from an Indian was not valid, “although such assignment may have been made previous to” the 1876 Indian Act.41 This was because, according to Dennis, Indians were not “persons.” An 1880 amendment to the Indian Act clearly distinguished an “Indian” from a “person”: “The term ‘person’ means an individual other than an Indian, unless the context clearly requires another construction.”42 Anyone defined as “Indian,” therefore, could not gain a patent to land they had owned and cultivated before the treaties.
The Proclamation of 1763 was another rationale for not recognizing the individual ownership of land by Indians prior to treaties and consequently denying them the right to sell that land. According to the Proclamation, the foundation of the approach that Canada took to treaties, all sales and leases could only be made through the Crown, no private person could presume to make purchases from Indians. Land was to be purchased “only for Us, in our Name, at some public Meeting or Assembly of the Said Indians.”43 Laird referred to “an old proclamation” during debate about the Indian Act in the House of Commons in 1876, when the issue of land owned and sold by Indians of Manitoba emerged.44 Manitoba MPs supported the rights of Indian owners to buy and sell, in order to make the sales to non-Aboriginal settlers legal. Likely referring to St. Peter’s, Andrew Bannatyne said that “some Indians in Manitoba had sold land to settlers in good faith,” and Donald A. Smith said he “thought it was only fair that something should be done to legalize these sales.”45 Laird’s reply as summarized in the House of Commons debates was: “this would be opening up a wide field. If they admitted the right of giving titles to the Indians, they would probably find the whole North-West in the hands of other persons. He found in an old proclamation of the British Government that purchases of lands from Indians were strictly forbidden. It was understood that Indians could not dispose of land except by treaty to the Crown. If an Indian occupied a piece of land outside a reserve, although he was allowed to enjoy the results of his improvements he had no right to sell the property.”46
Donald Smith advanced the argument that through the Selkirk Treaty of 1811, rights to the land (below Sugar Point to the Peguis or St. Peter’s people) were established, and that “this land had been given to these Indians by Lord Selkirk for services rendered.” There was no further debate; when Hector Langevin said that “he thought it would be a great hardship to deprive some Indians of their acquired rights” and that “some Indians had bought lands from others,” Laird simply responded that “such a purchase was illegal.”47
Did an individual Indian have the right to buy or otherwise acquire land outside of reserves and sell it after the treaties? This right was tested in 1909 when, in the Manitoba King’s Bench case Sanderson v. Heap, it was decided that an Indian did have the right to sell outright his individual property; it was also clearly stated that an Indian had the right to acquire real and personal property outside of a reserve.48 A treaty Indian and member of the St. Peter’s band had sold land to a resident of the town of Selkirk, and he later wanted the sale made void, arguing that under the Indian Act he was not entitled to make the sale. The judge decided that the Indian Act did not restrict his right to sell, that “nothing forbids him to acquire real and personal property outside of a reserve or special reserve or to dispose of it, inter vivos at all events, as freely as persons who are not Indians.” Justice Thomas Mathers wrote that “unlike the Indians of the United States who are aliens, the Indians of Canada are British subjects and entitled to all the rights and privileges of subjects.” He quoted an earlier judgement in Upper Canada by Justice Robinson, who stated that the government had “never attempted to interfere with the disposition which any individual Indian has desired to make of land that had been granted to him in free and common soccage by the Crown.”49
First Nations people could not be legally prevented from buying and then selling land off reserve after this 1909 decision. In our study we hope to be able to trace the extent to which this happened. The price of land would have been a barrier, but there are indications of land purchases. In 1910, Winnipeg journalist Lillian Beynon Thomas wrote about a visit to St. Peter’s and Selkirk: “An Indian stood against the rail near us and an over-inquisitive white man on the other side of him said: ‘You live on the reserve?’ in that idiotic fashion Anglo-Saxons have of thinking that bad English is easier of comprehension than good for an alien. ‘No’ was the quiet answer in which could be detected dignity and pride. ‘I do not take treaty. My father and mother stopped taking treaty money and have their own land.’”50
While free to purchase land, no one defined as “Indian” could apply to homestead the 160 acres of land available to (mostly male) newcomers. This prohibition lasted until 1951, when there was virtually no homestead land left, except in north-central Alberta. The issue of whether Aboriginal people could claim land on the “public” domain in western Canada first emerged in 1862 in British Columbia, when an Aboriginal man sought to buy land at a public sale.51 The official conducting the sale wrote for guidance to the Governor of British Columbia, who replied that there could be no objections, but soon after Aboriginal people were deliberately forbidden the right of pre-emption—the method of acquiring provincial Crown land in BC similar to the homesteading in the prairie provinces—in BC where most of the land, except along the “railway belt,” was administered by the province. The provincial legislation read that “such right of pre-emption shall not be held to extend to any of the Aborigines of this Continent, except to such as shall have obtained the Governor’s special permission in writing to that effect.”52 Most First Nations farmers in BC had to be content with twenty acres per family of reserve land.53
Section 70 of the 1876 Indian Act specifically prohibited those defined as “Indian” from the right to homestead. The Act stipulated that “no Indian or non-treaty Indian, resident in the province of Manitoba, the North-West Territories or the territory of Keewatin, shall be held capable of having acquired or of acquiring a homestead or pre-emption right.”54 This contrasted with the many ways newcomers could acquire land. Architects of the Dominion Land policy clearly recognized that 160 acres would not be enough to sustain a farming family and there were liberal provisions to expand holdings. First, there was the free homestead of 160 acres, obtained for a filing fee of $10.00 (although the land was not owned outright until after first five and later three years of occupancy and cultivation). A homesteader could make a second homestead entry and through the right of pre-emption could also acquire an additional neighbouring 160 acres. Families could expand their holdings as sons (not daughters) could file homesteads on adjoining lands. Well-to-do settlers could also purchase the odd-numbered public lands, CPR land, school lands, and HBC land. First Nations farmers were also excluded from a host of other initiatives intended to foster settlement on what had become the “public domain,” which included policies that made woodlots available to homesteaders, and the regulations governing the issue of permits to cut hay and the leasing of lands for grazing purposes.
The goal of the homesteading scheme was to quickly populate the land, replacing First Nations with newcomers. As economist Douglas Allen has written, the land policies of both the U.S. and Canada were “efforts to ‘hire’ settlers” due to the “Indian’s simultaneous claim on public lands and the cost imposed by this dispute over property rights.”55 Homesteading helped to establish Canadian claims in their western territories and was a “least-cost strategy,” a “substitute for direct military force [that] acts to mitigate the costs of violence.” Allen argues that “when the sovereignty of a region is threatened, settlement is promoted to help establish property rights and mitigate the enforcement costs by violence.”56 A preponderance of fit and preferably youthful white males suited this purpose best and they were given many incentives, including the initial grant of land, and the relatively easy opportunities to acquire more land.
It was not natural and inevitable that all those defined as Indian in western Canada would be deliberately and legally denied the right to homestead. In his 1869 book Red River Country, Hudson’s Bay and North-West Territories Considered in Relation to Canada, Alexander Russell advocated a system of homesteads for Indians, urging the Dominion to provide “that any Indian of any such tribe might, at any time forever thereafter and anywhere, obtain a free grant of two hundred acres of land, on his choosing to become a settler, as an inalienable homestead.”57 Russell was not alone—during debates about the Indian Act in 1876, the matter was raised by Gavin Fleming, Liberal Member of Parliament for Brant North. He “thought it strange that Indians should be prohibited from obtaining land in the North-West when the most ignorant and illiterate immigrant could enjoy that pre-emption right.”58 Fleming also “did not see why an Indian had not as good a right to emigrate to Manitoba and get a homestead as a white man.”59 Manitoba Member of Parliament John Christian Schultz agreed, saying “it seemed to be held by the Government that because they gave the Indians an annuity of $5 per head the latter were to be deprived of every right and privilege which a white man holds dear.” Schultz “did not see why the Indians of the North-West, when they became as intelligent as those in Brant, should not have the right to get homesteads for themselves.”60
Other advocates of homesteads-for-Indians emerged from time to time. Robert Steinhauer was an Anishinabe Methodist missionary who was enfranchised in 1896. He was also an advocate for homestead rights for First Nations; in 1903 the Toronto Globe quoted him as saying that if Indian boys and girls were “given the same chance as other children who are brought into Canada, and given the opportunity of studying at the public schools, and afterwards allowed to homestead land, they would stand shoulder to shoulder with any class of people in the country.”61 From the late nineteenth century there were also many calls for policies that would allot reserve land to individuals. The editor of The Canada School Journal and Weekly Review, for example, wrote on September 24, 1885 that in order to be spared “periodical Indian wars” a policy of “separate homesteads” was needed. Through a “method of settling them as individuals… wild and troublesome Indians [in the U.S.] have been peaceably induced to give up savagery, to practically give up its tribal relations, and to take to civilized ways.” There were many Canadian admirers of the 1887 Dawes Act in the U.S. that divided up and allotted reserve land individually. A somewhat similar plan was implemented in western Canada by Indian Affairs beginning in 1889 on agricultural reserves with the subdivision survey into small plots and the introduction of a “peasant” farming policy.62
Laird’s reply to questions about homestead rights in the debates about the Indian Act in 1876, however, was that “the Indians must either be treated as minors or as white men. If they should be found intelligent enough to exercise the rights of white men they could become enfranchised.”63 According to Laird, enfranchisement, to be discussed below, was the way to acquire land individually. Once enfranchised, it might be possible to homestead, although this was not obvious and the issue was debated. A reason for the clause prohibiting homesteading was detailed in an 1899 “Memorandum on the Legal Status of British North American Indians” that contained “information relating to the disabilities and restrictions” imposed upon them. Indians were denied the right to homestead because “the public lands in the Province, Territories and District mentioned are vested in the Crown for the benefit of the government of the Dominion. The surrender of the so-called Indian title over these lands having accrued to the benefit of the Dominion, the Dominion has been party to the reservation of large tracts of land for the benefits of the Indians, which, speaking generally, far exceed in extent the areas to which they would have been entitled individually, under the Homestead and Pre-emption Clauses of the Dominion Lands Act.”64
Indians had “large tracts of land” reserved for their benefit. Reserves provided land for Indians, scrip provided land for the Métis, and homesteads were for those “not enrolled as Indians,” as John A. Macdonald explained in the House of Commons in 1885.65 Indians could not homestead or take Métis scrip; the same section of the Indian Act that dealt with homestead rights stated that Indians did not have “the right to share in the distribution of any lands allotted to half breeds.”66 There was, however, a brief opportunity in 1886 and 1887 when treaty Indians who met the necessary ancestry qualifications could withdraw from treaty and receive Métis scrip.
In Department of Indian Affairs correspondence the question of whether Indians could homestead was discussed and debated many times and from many angles; extensively debated was the question of whether an enfranchised Indian could homestead. First legislated under the Gradual Civilization Act (1857), this was the process through which an individual lost Indian and wardship status and (supposedly) gained the full rights of citizenship. It was a complicated and protracted process with many hoops to jump through. According to the 1876 Indian Act, consent of the band had to be approved before an applicant (“any Indian man, or unmarried woman of the full age of twenty-one years”) could begin the process. The applicant was then assigned a “suitable allotment,” the precise amount being unspecified. In allotting the land, the quantity was to be in proportion to the size of the family “compared with the total quantity of land in the reserve, and the whole number of the band.” The power to decide how much land was to be allotted was left with the band. If the Indian agent and superintendent general of Indian Affairs decided the allotment was “equitable” then a “competent person” was asked to “report whether the applicant is an Indian who, from the degree of civilization to which he or she has attained, and the character for integrity, morality and sobriety which he or she bears, appears to be qualified to become a proprietor of land in fee simple.”67 If a favourable report was received, a location ticket was issued. There was then a probationary period of three years, or longer in the event of unsatisfactory conduct, after which the superintendent general could grant title to the land in fee simple. Later amendments made the process even more challenging. After 1884 the applicant had to furnish a certificate:
to be made under oath before a judge of any court or justice of the peace, clergyman or minister of the religious denomination to which the applicant belongs or by two Justices of the Peace, to the effect that, to the best of the knowledge and belief of the deponent or deponents, the applicant for enfranchisement is and had been for at least five years previous, a person of good moral character, temperate in his or her habits, and of sufficient intelligence to be qualified to hold land in fee simple and otherwise to exercise all the rights and privileges of an enfranchised person.68
The band council then had thirty days to provide affidavits before a judge or magistrate containing their reasons for or against endorsing the applicant, and then the superintendent general had another thirty days to decide whether a location ticket ought to be granted. Even once all of these criteria were met, and the fee simple title granted, the land was still not his or hers; it could not be sold, leased, or otherwise alienated without the sanction of the Governor-in-Council.69
The process of acquiring a small plot of reserve land to call one’s own was long and tortuous, and in 1886 even this process was denied to most of the western Canadian First Nations. From that date, the enfranchisement clauses were no longer to apply “to any band of Indians in the Province of British Columbia, the Province of Manitoba, the North-West Territories, or the District of Keewatin” except “by proclamation of the Governor-in-Council from time to time.”70
Reviewing all of this in 1895, a clerk in the Department of the Interior recommended that an enfranchised Indian should be allowed to homestead. The enfranchisement process was “a sufficient guarantee, I think, that he will be as well able as the average homesteader to carry out the homestead conditions.” But he did not want to open the floodgates, and thought they were better off on reserves. He further recommended that “to guard against the danger of enfranchised Indians leaving their lands in the Reserves, which lands are in all probability better suited to their requirements than any land open to homestead entry…each case should be dealt with on its own merits after consultation with the Deputy Superintendent-General of Indian Affairs or the Indian Commissioner.”71
Based on this advice, the 1895 opinion of Indian Affairs was that upon enfranchisement a male could homestead, as the “disqualification arising from this section [of the Indian Act] will cease to apply to an Indian.”72 That year a circular letter was sent to all agents of Dominion Lands in Manitoba and the North-West Territories announcing that “in future an enfranchised Indian, who disposes of the land allotted to him on the Reserve, is to be furnished with a certificate to that effect. The production of this certificate will therefore enable you to decide whether the applicant is entitled to the privilege of making an entry.”73 Thus the ultimate decision was left in the hands of individual land agents when presented with such a certificate, but this stipulation was quickly amended a few weeks later when it was decided that a certificate indicating enfranchisement, “or other evidence of that fact as might be satisfactory to this Department,” was all that was required in order to make homestead entry. It was made clear that “under no other circumstances, however, should any Indian be permitted to settle upon lands” under the administration of the Department of the Interior.74 This policy of allotting land on their own reserves was also applied in the case of First Nation soldier settlers after World War I, further preventing any “Indian” from acquiring any land on the public domain.75
With all of these hoops while enduring years of waiting, it is not surprising that there were very few applicants for enfranchisement. In 1892, Indian agent A.M. Muckle of the Manitoba Clandeboye agency described the problems and challenges the applicant faced, with very little reward at the end of it all.76 St. Peter’s reserve resident Alfred Sinclair, “an intelligent young man twenty one years of age,” wanted to leave the band and homestead land outside the reserve. Sinclair had applied to become enfranchised, and this was the first case brought before agent Muckle, who wondered if it was worthwhile for the young man to even apply. All of the clergymen, or magistrates or other acceptable officials, were newcomers, and had not known the young man personally for the last five years (as the Indian Act stipulated), and therefore could not provide Sinclair with a certificate under oath as required. There were other roadblocks. Muckle wrote that the chiefs and councillors:
will do their utmost to put a stop to any one getting enfranchised, for a person would have to be almost more than human, who could pass through such an ordeal, as having the eyes of Clergymen, or magistrates, the Band of Indians to which he belongs and the Indian Department on him for the space of eight years, or more, without fault being found by some of them in some way, which would invalidate his claim to be enfranchised, and received a patent for say thirty two acres of land, which land strange to say would not be his, as he could not sell it. All the treaty man would gain, after being out as it were on a ticket of leave for eight or fifteen years (if he could pass muster) would be that he was an intelligent voter and had a patent for thirty two acres of land which he could not sell.77
Muckle warned that there were other young men of the agency who “had attended school, who have worked in the lumber woods, or steam boats & railways etc, [who were] beginning in a quiet way not to like to be Indians” and who, like Sinclair, wanted to homestead and ultimately own land off the reserve.78
Hurdles on the road to enfranchisement were many. The applicant could not complete the process if his or her band refused to allot land; not surprisingly, band councils refused to diminish reserve land by parcelling it out to individuals. This was the case with Augustine Steinhauer (brother of Robert, mentioned above) from Saddle Lake, who in 1915 applied for enfranchisement.79 Augustine met all of the qualifications set out in the Indian Act, but his band would not allot him any land, so his application for enfranchisement was turned down. The Department of Indian Affairs informed him that the Saddle Lake agent had looked into the matter, finding that the band “absolutely refused to locate you for land,” and that “as enfranchisement can only be carried out by location of land in the first place by the Band it is regretted that no further action can be taken towards your enfranchisement.”80 Augustine Steinhauer wrote to the provincial attorney general of Alberta to find out if there was any court of justice he could bring his case before. It is unknown what, if any, reply he received.
There were First Nations settlers who applied for permission to homestead land that they had settled on before the treaties. John Tanner, a member of the Manitoba Gambler First Nation, worked for the North West Mounted Police at Fort Walsh delivering mail across the border, and lived in the Cypress Hills with his family. In 1885 Tanner asked to claim the land as his homestead, stating that when he selected the land in the early 1880s he was told by officials of the police that he would be allowed to hold the land as a homestead.81 Tanner made considerable improvements and raised horses and cattle in this district, which grew to have a prosperous ranching economy. He was informed that he could not claim the land as a homestead unless he was willing to “give up his annuity as an Indian, or to become enfranchised,” which he refused to do.82 Tanner then asked if his wife Françoise Laronde, who was Métis, could be allowed a homestead entry, but this too was not possible, as a woman was eligible only if she was “a sole head of a family”—that is, if she was without a husband. There was some debate about this among Department of the Interior authorities as it was thought “possible that in a legal sense the wife who is a Half Breed is the sole head of that family, her husband being disqualified from making an entry.”83 Winnipeg Commissioner of Dominion Lands W.H. Smithe also thought that a decision in favour of Tanner “might have a favourable effect in emulating other Indians in the effort to become independent.” Another land official wrote that “I shall be very glad if in so deserving a case a favourable decision can be given as I think it might have a very favourable effect in emulating other Indians in the effort to become independent. Both the Lieut. Governor and McDonald—the interpreter—speak in the highest possible terms of Tanner’s industry and good character.”84 (Tanner had an interview with Lieutenant Governor Alexander Morris in 1874 about causes of unrest among First Nations, and Morris was impressed with this “remarkable” man.)85 But neither Tanner nor his wife was permitted to homestead their land. The Department of Indian Affairs proposed to purchase Tanner’s land and improvements for $500.00.
Tanner had no option but to abandon his homestead, settling on the Gambler band reserve at Silver Creek Manitoba. In 1900 he was reported to be “the wealthiest Indian within this agency. He has nearly fifty acres of as good wheat and oats as I have seen this season, a good farmhouse, stable, implement-shed and milk-house, besides a new binder, seed-drill, mower wagon and other necessary farm implements. He has over fifty head of good cattle, and about ten horses. His personal property, including buildings and land improvements, is worth at least $3,000.”86
There were others with Tanner’s experience in the prairie provinces. In 1905 a Saulteaux man, a non-treaty Indian, in the Battleford district, requested permission to homestead the land where he lived and had made improvements.87 He was informed he was not entitled, and had to vacate the land immediately. Non-status Indians lost ownership of their homesteads when they took Treaty Adhesion. In the case of Peter Murdock, however, his land became part of the Fisher River reserve. Murdock had a 160-acre homestead adjacent to the Fisher River reserve that he and his family had occupied since 1903. In 1908 he took Treaty Adhesion and joined the band and the following year the Chief and Council requested that his land be added to the reserve along with another larger tract of land. Inspector of Indian Agencies John Semmens consulted with Murdock and advised him that while Indians were not permitted to acquire homesteads, the Indian Act guaranteed that “he shall not be disturbed in the occupation of any plot on which he had permanent improvements, prior to his becoming a party to any Treaty with the Crown.”88 Murdock’s land included a one-and-a-half storey house (“shingle roof, 5 windows with a kitchen lean-to 10’ x 14’ with two windows”), a small stable and garden. It was valuable to the band because of its hay land and creek.89 Murdock and his family remained on his land with the consent of the Chief and Council when his land became part of the reserve in 1911.90
Land offices and Indian Agents received many requests for permission to homestead. In 1906 two Dakota men, Leo Shields and his son J.Y. Good Shields, applied for homesteads in the Fort Qu’Appelle land office, claiming that “they are not Indians under the Indian Act, as they have never taken treaty.” They were informed, however, that “although these persons are Sioux Indians, they are also non-treaty Indians, and as such can not, under Section 126 of the Indian Act, homestead Dominion lands.”91 There were many such inquiries. In 1910 at the Qu’Appelle agency in southern Saskatchewan, Indian agent M. Millar found that when one of the newspapers (mistakenly) reported that an act had been passed granting Indians the same privileges as white men, the people of his agency were soon asking what procedures they should follow to obtain homesteads.92
In 1902 a serious challenge to the policy of not permitting Indians to homestead was quickly quashed.93 Samuel Plain, a resident of the Caradoc reserve in Ontario, planned to move west to homestead, as non-Aboriginal Ontarians were free to do. As mentioned earlier, the Indian Act (section 126 in 1902) stipulated that “no Indian or non-treaty Indian, resident in the province of Manitoba, the North-West Territories or the territory of Keewatin, shall be held capable of having acquired a homestead.” Plain was a resident of Ontario, so he believed he qualified. A favourable reply could well have led to many First Nations settlers from Ontario, Quebec, the Maritimes provinces and British Columbia taking up homesteads on the prairies. Rain’s was but one inquiry—there were frequent such inquiries from Ontario First Nations about whether there were any regulations that stood “in the way of them acquiring land in the Northwest on the same terms as other persons by the performance of homestead duties.” Inspector of Indian Agencies in Ottawa J.A. Macrae supported their right to homestead, stating that “the men who would move west would make excellent settlers and cease to be Indians in the ordinary sense, as so many now engaged in business in white communities have done.”94 One had bought half a section of land (presumably in Ontario) and expected to have 150 acres of wheat seeded. An initial opinion of the Department of the Interior was that “it does not appear that the provisions [of the Indian Act related to homestead rights] apply to an Indian moving to Manitoba or to the North-West Territories from Ontario or any of the other Provinces of Canada…nor does there appear to be any reason why such an Indian should not become a British subject so that letters patent may be issued to him under the provisions of the Dominion Lands Act for a homestead.”95
The point, however, still needed to be referred to the deputy minister of justice, and he overturned this decision. The prospect of First Nations homesteaders arriving from Ontario and other provinces to populate the prairies was clearly found to be undesirable. It was the opinion of the Justice Department in September of 1902 that “an Indian or non-Treaty Indian who is not a resident of Manitoba or the North-West Territories but who may remove to Manitoba or the Territories is not eligible to obtain a homestead.” The tortured reasoning was explained:
in my opinion such a person cannot legally acquire a homestead. Section 126 of the Indian Act provides that no Indian or non-treaty Indian resident in the Province of Manitoba, the North-West Territories, or the District of Keewatin shall be held capable of having acquired or of acquiring a homestead. Residence upon the homestead for which he has obtained an entry being one of the conditions which the settler must comply with in order to earn his patent, an Indian or non-treaty Indian to whom a homestead has been granted, and who in fulfilment of that condition takes up his residence upon the land selected by him, by that act becomes, if he were not so before, resident in the Province or Territory in which that land is situated, and so subject to the provisions of the section referred to, and incapable of having acquired a homestead right.96
Samuel Plain was denied the right to homestead in the West, unlike thousands of other Ontarians. He died on the Caradoc reserve in November, 1904.97
By 1914 requests were frequent enough that a Department of the Interior “ruling” was filed on the question of whether Indians could homestead.98 This was in answer to a letter by John Lecaine, a Lakota of Wood Mountain, Saskatchewan (whose father was a North West Mounted Policeman), as to whether his two half-brothers, “Indians,” were eligible for homestead rights. It was decided that they could homestead only if they “do not belong to any particular band of Indians, and if they are not children of any male person of Indian blood who belong to such a Band; or if they are not in treaty and receipt of annuity moneys; or if they do not belong to any irregular band of Indians, or do not follow the Indian mode of life, they may be granted homestead entries.” Just what constituted the “Indian mode of life” was not specified. John Lecaine and a number of other Lakota men did secure homesteads, however, in the Wood Mountain district, although this was through unusual and special circumstances involving the establishment of their reserve.99
Inquiries about homestead rights also came from those who had been “discharged” from treaty, rather than having gone through the process of enfranchisement. The 1904 request of George Rain, a Nakoda from the Sharphead band, whose reserve was “closed” in 1890, was debated at Indian Affairs offices in Winnipeg and Ottawa, and at the Department of Justice in Ottawa.100 Rain had been discharged from treaty, and officially had no reserve to call home. Assistant Indian Commissioner J.A.J. McKenna, after consulting with Commissioner David Laird, wrote that being discharged from treaty meant that the person “ceased to be an Indian within the meaning of the [Indian] Act and had therefore all the privileges of ordinary citizenship.”101 The commissioner’s position, according to McKenna, was that “the word ‘Indian’ as used in Sec. 126 has not a racial but a restricted legal significance.” McKenna added that
Now the moment a man is discharged he ceases to belong to a particular band, and can no longer be reputed to belong to any particular band. A non-Treaty Indian is defined to be ‘any person of Indian blood who is reputed to belong to an irregular band but who follows the Indian mode of life.’ Geo. Rain does not belong to any irregular band, nor is he reputed to belong to any such band. From the report of our Agent it certainly appears that he is not leading what is regarded as the Indian mode of life. He lives as an individual, not as a member of a tribe. When he hunts and fishes he hunts and fishes as a white man. He works at the saw-mill and does freighting. He is settled on land outside of a Reserve, has broken ground and put up fencing. He owns horses and cattle, and other property.
Yet all of this detailed information was not enough to convince the Department of Indian Affairs that Rain could apply to homestead. Department of Justice officials were consulted, and eight months later replied that to have withdrawn from treaty, Rain would have to be a “halfbreed,” and “it is not stated that the person in question is a halfbreed.”102 (A “halfbreed” could withdraw or be discharged from a treaty under section 13 of the Indian Act, chapter 22, section 1.) It is not clear whether Rain was ever granted the right to homestead.
This paper has traced the complex twists and turns federal bureaucrats resorted to in order to ensure that First Nations had almost no individual property rights, either on or off reserves. Strategies were many, including declaring that Indians were not “persons,” and drawing on the “old proclamation” dug up by Minister of the Interior David Laird in debates about the Indian Act in 1876. Inquiries about homestead rights were dismissed and discouraged. Enfranchisement was presented as the route to a plot of land in fee simple, but this was a difficult and protracted process that rarely succeeded. Together these schemes and tactics combined to ensure that First Nations people had no land to call their own, and no ability to expand their land base, either as individuals or collectively. The ad hoc nature of the reactions to the issues and requests as they arose indicate that there was no master plan plotted and spelled out behind closed doors in the offices of the bureaucracy, but the consistency of the responses over decades suggest that the overall objective was to erase First Nations from the landscape outside of reserves, confine them to those reserves, and replace them with an army of homesteaders. This had very real implications for their agricultural economy. With all the windows of opportunity boarded up, First Nations farmers had no option but to pursue agriculture within the confines of their reserves, and the confines of the Indian Act.
1 Thanks to the Social Sciences and Humanities Research Council of Canada for supporting this project through a standard research grant for: “Growing Pains: The Dynamics of First Nations Agriculture in Manitoba.” Thanks to my co-investigator Winona Wheeler for the insight and sources she provided for this paper.
2 The Canadian Indian 1, 5 (February 1891): 129. For more on this prevailing attitude see Sarah Carter, Lost Harvests: Prairie Indian Reserve Farmers and Government Policy (Montreal and Kingston: McGill-Queen’s University Press, 1990), Chapter One.
3 We hope that our study can provide precise details on acreages under cultivation by First Nations before treaties, and the extent of individual private property /farms, but we have not yet located the necessary sources. We do not want to exaggerate the extent of private holdings, as this was not the form of land tenure of the majority of First Nations of Manitoba and the west, but this paper clearly establishes their existence.
4 Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event (London: Cassell, 1999); Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research 8, 4 (2006): 387-409.
5 Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge: The Belknap Press of Harvard University Press, 2005).
6 H.Y. Hind, Narrative of the Canadian Red River Exploring Expedition of 1857 and of the Assiniboine and Saskatchewan Exploring Expeditions of 1858 (Rpt.: New York: Greenwood Press, 1969), 45, 111. See also C. Flynn and E. Leigh Syms, “Manitoba’s First Farmers,” Manitoba History 31 (Spring 1996) and D.W. Moodie and Barry Kaye, “The Northern Limit of Indian Agriculture in North America,” Geographical Review 59, 4 (October 1969).
7 Kent McNeil, “Sovereignty and the Aboriginal Nations of Rupert’s Land,” Manitoba History 37 (Spring/Summer 1999): 7.
8 Canada. House of Commons Debates. 28 May, 1869: 485.
9 John McDougall, On Western Trails in the Early Seventies: Frontier Pioneer Life in the Canadian Northwest (Toronto: William Briggs, 1911), 18.
10 Quoted in Sarah Carter, “The Missionaries’ Indian: The Publications of John McDougall, John Maclean and Egerton Ryerson Young,” Prairie Forum 9, 1 (1984): 33.
11 Carter, Lost Harvests, 196.
12 Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories Including the Negotiations on Which They Were Based (1880 rpt.: Saskatoon: Fifth House Publishers, 1991), 28.
13 Ibid., 29.
14 Canada. Sessional Papers 9, 9 (1875): 32-3.
15 Ibid, 34.
16 Morris, 39.
17 Quoted in Frank Tough, As their Natural Resources Fail: Native Peoples and the Economic History of Northern Manitoba, 1870–1930 (Vancouver: UBC Press, 1996), 95.
18 Ibid.
19 Morris, 315.
20 Ibid., 322.
21 Ibid., 279.
22 Sarah Carter, “Site Review: St. Peter’s and the Interpretation of the Agriculture of Manitoba’s Aboriginal People,” in Manitoba History 18 (Autumn, 1989): 46-52.
23 The following correspondence is in Library and Archives Canada (LAC), Record Group 10 (RG 10), v. 3614, file 4311. It is not always clear who the author is of each of the documents: W. Simpson, Molyneux St. John, or J.A.N. Provencher.
24 Extract from report of Provencher, 31 December, 1873, in Ibid.
25 Memorandum in reference to understanding with Indians under Treaties Nos. 1 & 2 as to the proprietary right of Indians in property held by them prior to the negotiation of the Stone Fort or No. 1 Treaty. By Molyneux St. John. No precise date; 1875. In Ibid.
26 Wemyss Simpson to E.A. Meredith, 15 February, 1875. In Ibid.
27 Memo “Right of Indians.” St. John in Ibid.
28 Extract from report of Provencher, 31 December 1873, in Ibid.
29 Indian Acts and Amendments 1868–1975: An Indexed Collection, ed. Sharon Venne (Saskatoon: University of Saskatchewan Native Law Centre 1981), 27. (The Indian Act, 1876. S.C. 1876, co. 18 (39 Vict.)
30 Ibid.
31 Ibid., 28-9.
32 LAC RG10 v. 3614 f.4322. Memo “Right of Indians,” St. John.
33 Manitoba Act 1870 available at http://www.solon.org/Constitutions/Canada/English/ma_1870.html
34 Order-in-Council 1871-1036 April 26, 1871 Lands in Manitoba–[Secretary] of State submits regulations respecting persons who settled on lands before survey, setting forth conditions upon which they may hold the same. RG 2, Privy Council Office, Series A-1a, vol. 288.
35 LAC, RG 10, v. 3614 f. 4311 Memo “Right of Indians,” St. John.
36 Extract from report of the Provencher, 31 December, 1875. In Ibid.
37 Venne, 43.
38 “An Act to amend ‘An Act respecting the approproiation of certain Lands in Manitoba.’ 1875 vol. 1 (Canada - 38 Victoria, 3rd Parliament, 2nd Session) Chapter 52, p. 292.
39 LAC, RG 15, file 7052.
40 Letter, M.T. Hunter to Surveyor General of Dominion Lands, Ottawa, 6 December, 1876. LAC RG 10, v. 236, file 7052.
41 Surveyor General J. Dennis to Minister of the Interior, 6 June, 1877. In Ibid.
42 Venne, 57. (The Indian Act 1880 S.C. 1880 c. 28 43 Vict.).
43 See the text of the Royal Proclamation of 1763 at http://www.bloorstreet.com/200block/rp1763.htm
44 Canada, House of Commons Debates, 3nd Session, 3rd Parliament, 1876, 872.
45 Ibid.
46 Ibid.
47 Ibid.
48 Sanderson v. Heap, 1909, 11, Western Law Reports, 238. Manitoba King’s Bench, Mathers, J., June 1909, http://library2.usask.ca/native/cnlc/vo103/631.html.l
49 Ibid.
50 Dame Durden (Lillian Beynon Thomas), “Seeing Lake Winnipeg,” Farmers’ Advocate and Home Journal 10 (August 1910): 1190.
51 Wendy Moss and Elaine Gardner-O’Toole, “Aboriginal People: History of Discriminatory Laws,” Government of Canada: Law and Government Division, Nov. 1987, revised Nov. 1991. Available at http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp175-e.htm
52 Quoted in Ibid.
53 This issue of the rights of First Nations to pre-empt or homestead land in British Columbia is murky; however, see a 1903 document in LAC, RG 15, Series D II 1, vol. 750, f. 478,863 in which it is stated that there “are no grounds for refusing an Indian in BC entry for land under the control of the Dept.”
54 Venne, 43. This is in the section “Disabilities and Penalties” (The Indian Act 1876 S.C. 1876, c. 18(39 Vict.)
55 Douglas W. Allen, “Homesteading and Property Rights: Or, ‘How the West Was Really Won,’ ” Journal of Law and Economics 34 (April 1991): 2.
56 Ibid., 3.
57 Alexander Jamieson Russell, Red River Country, Hudson’s Bay and North-West Territories Considered in Relation to Canada (Ottawa: G.E. Desbarats, 1869), 154.
58 Canada, House of Commons Debates, 3nd Session, 3rd Parliament, 1876, 870.
59 Ibid., 933.
60 Ibid., 933.
61 Quoted in Donald B. Smith, “The Steinhauer Brothers: Education and Self-Reliance,” Alberta History 50, no. 2 (Spring 2002) n.p. Online version available at http://images.ourontario.ca/Cobourg/53460/data
62 Carter, Lost Harvests, 193–236.
63 Ibid.
64 Canada: Memorandum on the Legal Status of British North American Indians. Presented to both Houses of Parliament by Command of Her Majesty, Dec., 1900 (London: Darling and Son, 1900), 16.
65 Canada, House of Commons Debates, 3nd Session, 5th Parliament, 8 May 1885, 1567.
66 Venne, 43.
67 Ibid., 47–50.
68 Ibid., 98 (An Act further to amend “The Indian Act, 1880” S.C. 1884 c. 27 47. Vict.).
69 Ibid., 146.
70 Ibid., 144.
71 LAC, RG 15, D-II-1, vol. 718, file 378753, V.O. Cote to A.M. Burgess, 10 June 1895 “Re: Mr. Hayter Reed’s letter respecting the right of an enfranchised Indian to take up a homestead.”
72 LAC, RG 15, Series D II 1, v. 750, f. 478, 863, Letter, Lynwoode Pereira to John McKenzie, 31 Aug., 1898.
73 Ibid.
74 Ibid.
75 Sarah Carter, “‘An Infamous Proposal’: Prairie Indian Reserve Land and Soldier Settlement after World War I,” Manitoba History, 37 (Spring/Summer 1999): 9–21.
76 LAC, RG 10, v. 3871, f. 89486, Letter, A.M. Muckle to E. McColl, 6 April, 1892.
77 Ibid.
78 Ibid.
79 Provincial Archives of Alberta, Accession number GR 1966.0166/261a. A. Steinhauer to attorney general of Alberta, 1 Dec., 1915.,
80 Quoted in Ibid.
81 LAC, RG10, v. 3739, file 28571, Hayter Reed to superintendent general of Indian Affairs, 15 April 1886.
82 Saskatchewan Archives Board (SAB), homestead file for SE 20 – 11 – 26 – W3. Letter, R.A. Ruttan to A.M. Burgess, 8 August, 1885.
83 W. H. Smithe to A.M. Burgess, 20 August, 1885 in Ibid.
84 Ruttan to Burgess, 8 August, 1885 in Ibid.
85 LAC, RG 10, v. 3610, file 3528, Memorandum of an interview with Kissoway, or John Tanner, 6 June, 1874.
86 Canada. Sessional Papers 14, 11, 5th session of Parliament, 1900: 128.
87 LAC, RG 15, Department of the Interior, D – II – 1, vol. 718, file 378753, P.G. Keyes to the agent of Dominion Lands, Battleford, 11 July, 1905.
88 Indian Act R.S., c.43, s. 164(a).
89 LAC, RG 10, v. 7778, file 27136-2. J.D. McLean to John Semmens, Inspector of Indian Agencies, 19 January 1909; J.D. McLean to F. Pedley, Deputy Superintendent of Indian Affairs, 13 January 1909.
90 Ibid,. John Semmens to J.D. McLean, 6 February 1909; Ibid., P.C. Order in Council # 2215, 2 October 1911.
91 LAC, RG 15, series D II 1 v. 990, T 14568, f. 1,237, 946, Letter, _____ unclear secretary, Department of Indian Affairs to secretary, Department of the Interior, 16 August, 1906.
92 LAC, RG 10, v. 1392 H. Nichol to J. McLean, 27 Jan. 1910.
93 LAC, RG 10, v. 3077, file 262, 666.
94 LAC, RG 10, v. 3011, f. 262, 666, J.A. Macrae, to acting deputy minister of the interior, 18 August, 1902.
95 D. Y. Keyes, to J.A. Macrae, 30 August, 1902 in Ibid.
96 D.Y. Keyes to J.A. Macrae, 23 Sept., 1902 in Ibid.
97 See http://familytreemaker.genealogy.com/users/j/o/h/Kimberly-A-John/WEBSITE-0001/UHP-0344.html.
98 LAC, RG 15, series D2, file 1680 Dominion Lands, 1. L. Pereira to John Lecaine, 27 Nov., 1914.
99 See John Lecaine’s homestead files SAB, no. 1890785: NE 27 – T4- R4- W 3, and no. 1954960: T4-R4-W3.
100 Little background information is available on George Rain, but an interview from 1973 with Lazarus Roan, of Small Boy’s Camp, Alberta mentions the Rain family and George Rain’s efforts to get their reserve back. See http://ourspace.uregina.ca/bitstream/10294/2182/1/IH-204.pdf, transcript of Eric Stamp’s interview with Lazarus Roan, tape number IH – 204, Transcript disc 38. I have assumed this is the same George Rain.
101 LAC, RG 13, Department of Justice, vol. 134, file 1046 –04. J.A.J. McKenna to the secretary, Department of Indian Affairs, 4 Nov., 1904.
102 Ibid., Acting deputy minister of justice to secretary, Department of Indian Affairs, 26 July, 1905.