“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.” ~ Murray Sinclair (former Chair, Truth and Reconciliation Commission of Canada), Keynote address to the Tommy Douglas Institute, December 3, 2018, at 34:05.

Introduction

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.¹ Part 1 included a description of how the federal government fashioned an elaborate framework to strip Indigenous People of their treaty rights and deny them legal recourse against those who were harming them. Part 2 included a description of the complex process that resulted in the signing of the Indian Residential Schools Settlement Agreement (IRSSA) in 2006.

The TRCC conceded 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.”² Thousands of individual civil lawsuits and nineteen class-action lawsuits were never concluded, but were settled out of court under the terms of the IRSSA.³ It must also be said that the federal government withheld records of criminal convictions relating to Indian Residential Schools.⁴

Faced with these realities, the TRCC had to rely on three primary sources:

Statistics generated by the Independent Assessment Process (IAP) and the Common Experience Payment (CEP) programs established by the IRSSA.
The documentary record, particularly as it related to prosecutions for child abuse in Indian Residential Schools.
Statements of Survivors, whether made to the TRCC or in other forums.⁵

On this basis, the TRCC concluded that governments and churches had failed children and their families on multiple fronts:

Failed to acknowledge the legitimacy of Aboriginal reports of abuse.
Failed to take action.
Failed to investigate complaints impartially.
Failed to report abuse to the police.
Failed to report properly on the prosecution of residential school staff.
Failed to screen effectively when hiring.
Failed to protect students from abuse by other students.
Failed to assist victims.⁶

The TRCC’s conclusions about Indian Residential Schools are becoming better known and are gaining broader acceptance among Canadians. Yet, there are still opportunities to defend the TRCC’s findings from pernicious attacks. Why, just a few weeks ago, the federal Conservative Leader met with a “think tank” that has repeatedly minimized the history and legacy of Canada’s Indian Residential Schools.⁷

Historian Sean Carleton and other leading authorities on Canada’s Indian Residential Schools caution that truth must come before reconciliation. In this spirit, we want to help tell this truth through law, considering thousands of decisions in federal, provincial and territorial courts and tribunals across Canada that pertain to Indian Residential Schools.

Let’s begin by making more readily accessible the documentary record of criminal prosecutions and civil lawsuits that the TRCC had to rely on.