Paul Allen

“Canada’s war against Indigenous People was through law”

“After Confederation, the government of Canada waged war–just like the Americans did. Americans did it through military might–the Indian Wars during Lincoln’s era and afterwards were a big part of American history. But Canada’s war against Indigenous People was through law. We waged war through law. Imagine being subjected to that. If you wanted to challenge it, you’d go to court. Often that’s the answer. You hire a lawyer and go to court. Well, if a lawyer agreed to give you advice, he would be disbarred unless he got permission from the Minister of Indian Affairs to give you that advice. If the individual went to court, the court could not accept an application unless the Minister of Indian Affairs’ consent to be sued was filed as well. The Minister never gave consent to being sued. If you wanted to protest–if you wanted to travel to Ottawa and protest against this–it became illegal to leave the reserve. It became illegal to gather in large numbers. In fact, if three or more Indigenous people gathered together for the purpose of complaining about the government of Canada’s treatment of them, they were guilty of an Indigenous or Indian conspiracy and could be prosecuted and jailed. Indian conspiracy laws were passed in the late 1880s. If your leaders in your community were trying to lobby or trying to effect change–because they were your traditional chiefs, traditional heads-people, traditional women leaders–the government had an answer for that, because in 1891 they passed a law that said those traditional leaders could no longer speak for the community, and only those men, over the age of 21 were allowed to hold office, elected under rules established by the Department of Indian Affairs. They had to give notice to the Indian Agent when they were holding a meeting, and the Indian Agent had to be present when they held the meeting, and he chaired the meeting, and he kept a record of all of the decisions by the Band Council. So, Indian archives were in the hands of the government from the very beginning. And so, the right to protest, the right to go to court, were all taken away from you. Maintaining your culture was taken away from you, not only in the schools, but in the communities, and those schools and the communities suffered under this regime from after Confederation until relatively recently.” ~ The Honourable Murray Sinclair (former Chair, Truth and Reconciliation Commission of Canada), Keynote address to the Tommy Douglas Institute, December 3, 2018, at 34:05.

Background

Volume 1 of The Final Report of the Truth and Reconciliation Commission of Canada (TRCC) described the history of my nation’s Indian Residential Schools.1Truth and Reconciliation Commission of Canada (2015), Canada’s Residential Schools: The History–Origins to 1939 (Volume 1, Part 1), 1939 to 2000 (Volume 1, Part 2). Part 1 of Volume 1 included a description of how the federal government fashioned an elaborate framework first to strip Indigenous People of their treaty rights and then to deny them legal recourse against those who were harming them. Part 2 included a description of a complex process that resulted in the signing of the Indian Residential Schools Settlement Agreement (IRSSA) in 2006.

The TRCC lamented that the full extent of child abuse in Canada’s Indian Residential Schools “is likely to remain unknown and unknowable. Many victims are now dead. Many more have been unwilling to speak about their experiences.”2Volume 1, Part 2, p. 399. Numerous individual civil lawsuits and class-action lawsuits were never decided, but were settled out of court under the terms of the IRSSA.3By October 2001, more than 8,500 residential school Survivors had filed lawsuits against the federal government, the churches, related organizations, and, where possible, the individuals who committed the abuse. In 2005, it was estimated that 18,000 outstanding civil suits would take 53 years to conclude, at a cost of $2.3 billion – not including any compensation awarded to Survivors. Nineteen class-action lawsuits were filed in nine provinces and territories. Volume 1, Part 2, pp. 562-563, 569. It must also be admitted that the federal government muddied the waters further by withholding records of criminal convictions connected to Indian Residential Schools.4Volume 1, Part 2, p. 412.

Faced with these limitations, the TRCC relied on three primary sources of information:

  1. Statistics generated by the Independent Assessment Process (IAP) and the Common Experience Payment (CEP) programs established by the IRSSA.
  2. The documentary record, particularly as it related to prosecutions of child abusers affiliated with Indian Residential Schools.
  3. Statements of Survivors, whether made to the TRCC or in other forums.5Volume 1, Part 2, p. 399.

On this basis of its study of these primary resources, the TRCC concluded that governments and churches had failed children and their families in multiple respects:

  • They failed to acknowledge the legitimacy of Aboriginal reports of abuse.
  • They failed to take action.
  • They failed to investigate complaints impartially.
  • They failed to report abuse to the police.
  • They failed to report properly on the prosecution of residential school staff.
  • They failed to screen effectively when hiring.
  • They failed to protect students from abuse by other students.
  • They failed to assist victims.6Volume 1, Part 2, pp. 413-414.

The TRCC’s conclusions about Indian Residential Schools are becoming better known and are steadily gaining broader acceptance among Canadians. Yet a pernicious “residential school denialism” still holds sway in some political quarters:

Let’s join with Indigenous leaders and other public thinkers who understand that truth must come before reconciliation – for now is not a time to be complacent.

Series

I was struck when I first heard The Honourable Murray Sinclair make the case that “Canada’s war against Indigenous People was through law.” In a series of posts, I explore the evolution of what turned out to be several thousands of legal decisions regarding Indian Residential Schools that had been rendered in federal, provincial and territorial courts, and tribunals across Canada between 1950 – 2022.