The Justice System and Aboriginal People
The Aboriginal Justice Implementation Commission
An Historical Overview TOP
We recognize that Canadians know relatively little about Aboriginal history and culture. Few Manitobans have had the opportunity to learn about their fellow citizens of Aboriginal background. In order that they might come to terms with our analysis of the present crisis and our recommendations for dealing with it, we invite all Manitobans to join us in reviewing that history.
Until very recently, the books that Manitobans and Canadians studied in high schools and universities were appallingly deficient in their treatment of Aboriginal history. A 1971 study of 88 books that most frequently appeared on Canadian history courses concluded that Indians were treated as part of the background to a European story.1 Sometimes, Indians were discussed in the introductory chapter on the environment and then relegated to a minor role. They might be enemies, as in the case of the Iroquois in New France, or allies, including Joseph Brant in the American Revolution and Tecumseh in the War of 1812, but rarely were they treated as human beings, let alone political strategists or caring parents or any of the other roles reserved for non-Aboriginal historical figures. This blindness must not continue. Manitobas Aboriginal people are playing an increasingly important role in every aspect of the provinces life. It is incumbent upon all Manitobans to ensure that the errors of their ancestors are corrected and that the history of their fellow citizens of Aboriginal descent is better understood so Aboriginal people are able to occupy a position in society which recognizes their contribution to the development of our community.
Manitobas Aboriginal people have known three different justice regimes. The first, a product of custom, negotiation and experience, developed before the arrival of Europeans during the centuries in which only Aboriginal people inhabited this part of the Americas. The second, which commenced with the arrival of Europeans in the 17th century, did not end Aboriginal law, but merely added English, Scottish and French complements in parallel with it. The third began with Manitobas entry into Confederation in 1870. Although it has remained essentially unchanged to the present, this third regime has had a devastating impact on Manitobas Aboriginal people during the last four decades.
We do not know a great deal about Aboriginal customary law as it developed and was applied in the first era before the arrival of Europeans. With the assistance of research in other parts of Canada and the world, and after consultation with Aboriginal elders, however, we believe we are able to understand its character and role in Aboriginal society before European contact.
Aboriginal customary law changed little in the second era, which extended from about 1660 to 1870. Nevertheless, the arrival of European peoples did place constraints upon Aboriginal customary activity and did introduce a different legal atmosphere.
The third justice regime commenced with the entry of Manitoba into Canada in 1870. The rapid development of a Europe-oriented society required accommodations by Aboriginal people. It left them with less freedom to live according to their own laws and customs. Treaties, the Indian Act, criminal law, school regulations, church pressures and government control over the harvesting of natural resources were aspects of a new and pervasive Canadian legal system that increasingly interfered with Aboriginal life. In this era, the Canadian government sowed the seeds that have returned as a bitter harvest during our generation.
Dramatic change occurred during the third regime, but it became a social crisis for Aboriginal people in the decades after World War II. Manitobas Aboriginal citizens have not been alone in having to adjust to the impact of governmental authority. Indeed, increased government regulations have affected us all. But Aboriginal people have experienced greater changes than have other Canadians. The legal and economic status of Aboriginal people, the economic foundation of their traditional life and the cultural attributes that were regarded as essential to their continued survival had been under attack since 1870, but since 1950 those attacks have intensified and the results have been devastating. TOP
Law in the Pre-Contact Aboriginal Community TOP
Law in an Aboriginal community was found in unwritten conventions before the arrival of Europeans. Although these rules were never codified, we observe that there were consistent patterns in the treatment of such matters as relations with other nations, family problems, and disputes about behaviour and property. These patterns became part of Aboriginal oral tradition and were passed from generation to generation. One can easily speak about these patterns in terms of "law" and "justice." Aboriginal people have resided in this part of the globe for thousands of years, or hundreds of generations. Aboriginal legends speak of the original peoples being on this land from the time of its creation. In essence, they have lived here from time immemorial. Archeological evidence of hearths at the forks of the Red and Assiniboine rivers, of garden plots at Lockport near Selkirk on the Red River, of rock paintings in the Whiteshell and of bison jumps in the Assiniboine River valley near Brandon are merely the best known of the physical evidence of this long occupation. As this evidence accumulates, scholars have sketched a picture of hunting-based and agriculture-based societies, of trade and of material culture that demonstrates how effectively they adapted to their environment. The social structures of these communities, however, their politics, diplomacy and family relations, are less evident. It is much more difficult to create a picture of the society in which these people lived their lives. Our brief description of the customary law that prevailed in these Aboriginal communities, drawn from oral histories of the people and written accounts of early contacts, will suffice to underline our conclusion that a separate and distinct legal system existed in pre-contact Aboriginal history.
We appreciate that it is difficult to define Aboriginal or "customary" or "traditional" law. In its broadest application, customary law includes three different subjects: specific rules that prescribe proper behaviour in a community; observable regularities in everyday human behaviour; and definable approaches to instances of dispute.2 However, it is difficult to be precise about what constitutes a law or a legal system in an Aboriginal world that does not employ such fixed concepts. A few illustrations should demonstrate, however, how a legal "system" operated in pre-contact Aboriginal Manitoba and why such cultural bases must be a part of our thinking in todays Manitoba.
Our understanding of how traditional Ojibway and Cree cultural practices related to justice is similar to that published by Michael Coyle in a recent article.3 Ojibway and Cree decision making involved the participation and consent of the community at large. Behaviour was regulated by ostracism, shame and compensation for the victims loss, even if only symbolic compensation were possible. Elders undertook the regular teaching of community values and warned offenders on behalf of the community. They publicly banished individuals who persisted in disturbing the peace. Elders might undertake to mediate dangerous disputes and to reconcile offenders with victims. In cases of grave threats or such serious offences as murder, physical punishment and even execution of the offender might be undertaken either by the community or by those who had been wronged. In all instances the sanction of tribal elders was necessary.
A murder in the Eagle Hills in 177576 illustrates the practice. According to Matthew Cocking, the Hudsons Bay Company trader at Cumberland House, who had heard the story from "Pedler Henry," a quarrel had occurred among the Beaver Indians of the Eagle Hills (probably Crees in the area northwest of present-day Saskatoon). Cockings report is worth close attention:
Cockings choice of words is significant. A man had "murdered" his wife. As a matter of "revenge," that man was "shot" by the womans brother. Note that this act of retaliation is not described as murder and that the traders assume the "Quarrel" had been settled.
These traditional methods of social control served the same purpose as our modern criminal justice system. Fur trader Daniel Harmon discovered when he visited southern Manitoba in the early 19th century that:
The insistence upon retaliation deterred the public and the individual offender from repeating the offence and it might have helped in the rehabilitation of the wrongdoer.
The role of elders, and their regular use of shame and expulsion in Ojibway, Assiniboine and Cree societies, illustrate how "force," defined broadly to include such mild sanctions, was used in these cultures. The Roman Catholic missionary, Father de Smet, described how Assiniboine Indians in Manitoba and adjoining lands disciplined offenders in the hunt:
Although their culture showed evidence of both Aboriginal and European origins, the Metis of Manitoba conducted their buffalo hunts in a fashion that reinforces de Smets observations. Alexander Ross, a leading citizen of Red River, recorded the rules of a hunt in the 1840s:
Another example from an Aboriginal culture also will illustrate the application of force. In the early 1980s, the Gitksan and Wetsuweten Indians of British Columbia embarked upon a project to record their traditional laws. In this process, they decided to reword the definition of enforcement offered by the pioneer legal anthropologist, E. Adamson Hoebel, to fit their customary usage.8 Their new definition of law added ostracism and shame as mechanisms of enforcement, just as Cree and Ojibway cultures might do. Their final statement read:
We conclude that Aboriginal enforcement mechanisms, although not codified in todays sense, served the same purpose in Manitobas pre-contact Aboriginal societies as did the justice system of the European societies of that time. Crime and punishment became part of each Aboriginal groups oral record, preserved by elders in story and legend. A British Columbia illustration will clarify the process. When the Gitksan-Wetsuweten Tribal Council began its project to record traditional laws, the elders had trouble understanding what researchers sought under the title of "law." Eventually, the word was translated as adaawk, which means "history" in literal translation. In those societies, each of the major social units, called a "house," has its own history which is passed down from one chief to the next. It establishes continuity from past to present, asserts a claim to resources and territory, and recounts the story of its relations with other houses. Each member of the house must act in conformity with the principles of the adaawk; thus, for the Gitksan and Wetsuweten, principles of historical record are principles of behaviour and can be translated as "law."10 This perspective was expressed by Delgam Uukw, a Gitksan chief, to the British Columbia Supreme Court:
As in British Columbia, so in Manitoba: each Aboriginal group had its history and its codes of behaviour.
Unwritten law, including negotiation, mediation and summary review of a disagreement, is often a part of daily life and yet not subject to all the requirements of a formal court hearing. We must remind Manitobans that all justice systems depend upon public awareness of their role and function in order to be effective:
The existence of social norms, the use of force and ostracism to enforce them, and the existence of a groupthe eldersaccustomed to asserting the integrity of such rules underlay the Aboriginal approach to justice before Europeans arrived in this part of the world. As we shall see, these customary practices survive to this day in the outlook of Aboriginal people. TOP
Aboriginal and European Legal Regimes during the Era of Peaceful Co-Existence, 16601870 TOP
The arrival of Europeans in the northern half of North America in the 17th century set events in motion that changed the context of Aboriginal law, although not the customs and laws themselves. We regard this period as the beginning of a second justice regime in Manitoba.
Aboriginal people and European newcomers lived in peace in Manitoba for more than 200 years, from about 1660 to the mid-19th century. They established mutually satisfactory economic relations while dwelling in essentially separate worlds. In the view of the Aboriginal people, the Europeans dwelt on the rim of an Aboriginal universe. As the English missionary, John West, discovered to his surprise, the Aboriginal people in the area around the forks of the Red and Assiniboine rivers "consider themselves the standard of excellence. In their fancied superior knowledge they are often heard to remark, when conversing with a European, You are almost as clever as an Indian."13
Seen from the European perspective, from within the palisades of a trading post or from the middle of a trading canoe, Aboriginal people were crucial indeed to all activities in the region, at least until the early decades of the 19th century. Food, trade, diplomacy, even marriage and family matters often were controlled by the Aboriginal inhabitants of this land. Europeans, far from dictating the course of events, negotiated to secure their own means of existence. This balance shifted as the decades passed, however, and by the early 19th century Europeans in eastern North America were sufficiently numerous to have established rules that favoured their interests there. In the West, it was slightly different. From the early 1600s to 1870, the Aboriginal people of prairie Canada lived within a society defined by traditional Aboriginal laws, while Europeans in the region increasingly demanded a justice system for themselves akin to those in Britain and Europe.
The customary seasonal cycle of resource-harvesting continued among Manitobas Aboriginal people after the introduction of the European fur trade. Small family-based bands dispersed during the depths of winter to hunt game and gather furs in the boreal forest. They congregated on the edges of lakes or on the plains in the spring and summer, when food was plentiful and the weather was warm, to attend to tribal matters and religious affairs. Intertribal trade fuelled the exchange at English and French fur trade posts. European traders simply fit into the accustomed annual cycle when they exchanged European goods for furs and food.
Trade did not result in Aboriginal dependence on Europeans. One Mandan chief, commenting on the members of the Lewis and Clark expedition who travelled through his land (south of present-day Winnipeg) in the early 19th century, said that there were "only two sensible men among them, the Worker of Iron and the Maker of Guns," and concluded that there was so little strength among the rest that his "young men on horseback would do for them as they would do for so many wolves."14
The arrival of increasing numbers of traders after France ceded its interest in Canada to British rule in 1763 was part of a significant change in Aboriginal circumstances in the western interior. Increasingly, trading posts were erected near Indian hunting territories. Europeans assumed direct control of the fur and goods exchange, thus eliminating Aboriginal middlemen. Europeans took Aboriginal women as partners and became members of mixed-race families. They also contributed to the growing trade in guns and horses that altered the Aboriginal diplomatic and military balance in the interior of the continent. European diseases devastated a number of Aboriginal communities during the next century. Despite great changes, however, Aboriginal cultures continued as they had for centuries. As Archbishop Taché commented in 1868 about the Aboriginal peoples of this land, "all of them ... retain their original social customs."15 TOP
Aboriginal Status and International Law TOP
If Aboriginal customary law was unchanged in this era, the European legal context of North American society was revised drastically. Two aspects of this change affected the Aboriginal people of Canadas western interior. First, the application of principles of international law and sovereignty affected Aboriginal tenure. Second, local legal arrangements by fur trading companies and, later, by the settlement at Red River also had an impact upon Manitobas justice system.
The Aboriginal people of Manitoba had no doubts about their control over their lives or their right to occupy this portion of the earth. Their sovereignty resided in and emanated from the land itself. This was not true of Europeans. They were the newcomers, the invaders, and they required justification in their own legal system for their incursions. This justification came from a variety of European legal conventions and approaches. The relevant international law, treaties and the evolution of legal concepts of Aboriginal rights will be reviewed in Chapter 5.
"Discovery," the planting of flags and the declaration of territorial claims did not establish European ownership of Canada.16 Instead, early European writers on international law, of whom Vitoria and Vattel are best known, acknowledged that Aboriginal nations had status in international society. This status could be subverted, it is true, either through negotiation or conquest. In fact, land in every part of the globe during the era of European expansion was acquired either by cession or conquest. Acquisitions of either type would have been sanctioned by contemporary legal concepts. But in the absence of either, it is apparent that international law did not hold that Aboriginal sovereignty merely melted or disappeared at the whim of the Europeans.
We do not wish to suggest that, in all cases, Aboriginal nations retained international sovereignty after their territory had been "acquired" or claimed by Imperial powers. But we do conclude that Aboriginal nations had the right to be treated under the domestic law of the colonizing nation in a way that respected either their status in international law, or the treaty or cession commitments that they had negotiated, or both. Elsewhere we point out that Aboriginal nations, at least in Manitoba, have not been so treated.
Aboriginal communities in Canada exercised a sovereign right to govern themselves, in law as well as practice, before European colonization of this land and, to the extent that they did not surrender their right to do so, thereafter. As James Crawford has explained:
In western Canada, this sovereign right continued and was respected throughout the era of the second justice regime.
The crucial agreements shaping British-Aboriginal arrangements after the fall of New France to British control were the Royal Proclamation of 1763 and the various treaties signed in the next few decades. The Proclamation was part of Britains assumption of control over New France. It was precipitated by a political crisis, an Aboriginal siege at Detroit led by Chief Pontiac. The Proclamation forbade white settlement beyond a "proclamation line" and it confirmed principles by which Aboriginal-European relations should be conducted. Britain declared that the Crown must formally extinguish Indian rights, that the Crown alone could undertake such obligations, that private interests could not extinguish Aboriginal claims to land, and that negotiations for the surrender of Aboriginal title must occur at an open assembly with the full consent of all the people. It should be underlined that, in legal terms, the Royal Proclamation did not establish Aboriginal rights in North America; rather, as James Crawford has written and the Supreme Court of Canada has stated, it assumed their existence.18 Moreover, it did not create a treaty tradition; rather, it confirmed a practice that had begun in the eastern colonies in previous generations. It was logical and natural that the British government would extend this practice to another North American colony. TOP
The Application of European Law in Manitoba before 1870 TOP
The new justice regime in Manitoba after 1660 also was evident in the daily give and take of trade, marriage, property claims, disputes over personal goods, and the struggles between employer and employee that we now call labour-management relations. In the Manitoba historical record, we have discovered cases in which both European and Aboriginal people accepted the need for adaptation of their inherited legal practices. We also have reviewed incidents where they employed legal principles unique to one culture or the other. Several examples will illustrate these different circumstances.
The emergence of new marriage and family conventions in the 18th and early 19th centuries demonstrates the extraordinary nature of the Manitoba legal "frontier." As historian Sylvia Van Kirk has explained, intermarriage between fur traders and Indian or Metis women was fundamental to the growth of a fur trade society:
These aspects of the second justice regime represented a merger of two cultures, not the dominance of one over another. Fur traders offered substantial presents to the parents of their brides; Aboriginal families, in their turn, accepted political and economic responsibility for their new allies. Each had cemented an "alliance," a social as well as a personal tie, in the process. And when, near the end of this era, some fur traders raised problems by threatening to abandon their families, the Hudsons Bay Company even instituted a law requiring that they "make such provision for their [families] future maintenance, more particularly for that of the children, as circumstances may reasonably warrant and the means of the individual permit."20
Both Europeans and Aboriginal people seemed to believe that serious crimes such as murder demanded immediate and equivalent retaliation. One of the most striking examples of this identity of outlook occurred at Cumberland House in 1796.21 The North West Company employees at that post suspected two recently arrived Swampy Cree men of having killed one of their company colleagues at Isle à la Crosse. The NorWesters shot one of the two Crees as he attempted to evade their "arrest," and then bound the other and threw him beside the corpse in an attempt to win a confession. Although this failed, "they then made him confess everything with the rope about his Neck, which he did, and informed him of every one who was accomplices with himhe said that he was the Sole cause of the Death of the Canadian, and seemed perfectly satisfied that he deserved this ignominious Death." He was hanged immediately. The two bodies were dragged outside the stockade and left as a lesson to others. Men at the nearby Hudsons Bay Company post interred the bodies on the following day. According to a trader, the local Indians appeared "very much terrified and shocked, never seeing a [sic] hearing of the like before." He suggested the execution would act as a deterrent. There is no record of Indian retaliation for the Cumberland House "executions" of 1796, but, as historian Paul Thistle comments, swift retaliation by the victims relatives would have been the rule just a few years earlier. In 1777, for example, Indians killed three Canadian traders to avenge harsh treatment. The Cumberland House deaths demonstrate that, although the Europeans perhaps were prepared to delay briefly in order to secure a confession, they did not shrink from murder in order to intimidate Aboriginal people in the vicinity.
"Rough justice" existed in many forms. On several occasions, North West Company traders beat Indian hunters whom they suspected of trading with the competition.22 On the other hand, a NorWester who had stolen an Indians property, including his canoe and all his winter supplies, escaped without penalty through the generosity of his victim. This may well have been an example of the kind of tactics employed by Aboriginal people to exert control over a relationshipin this case, a trading relationship. When some Indians attempted to raid a trading post in 1823, they were given "a good drubbing for their trouble" by the Hudsons Bay Company staff. The Indians then vented their frustration on a company cow by cutting off part of its tail.23
None of these incidents of conflict should be seen as evidence of a consistent pattern of law enforcement. Instead, as one might conclude from Paul Thistles detailed study of the Cumberland House district, the Indians lived according to their rules, and the fur traders by theirs within the context of company discipline. Moments of disagreement in Indian-European relations sometimes were resolved by force, sometimes not.
The crucial European issue was "jurisdiction." Thus, the fall of New France caused some legal confusion because the new administration of Canada, according to Britains Royal Proclamation of 1763, specifically excluded the so-called "Indian Territory" west of the province of Quebec. Within two years, a law was passed (the first of several in the next few decades) to provide for the arrest of offenders in Indian Territory and their transport to the nearest British colony for trial.24 Whether the HBC Charter or the laws of Canada prevailed in the West during the next century is unclear. When confronted by serious wrongdoing by one of their fellows, Europeans were likely to resort to their accustomed legal systems. Thus, when one fur trader was shot by another in a quarrel over furs in 1802, the survivor (who claimed he fired in self-defence) and a witness travelled all the way from the North-West to Montreal in order to secure a trial in the courts of Lower Canada.25 However, under the Hudsons Bay Company Charter of 1670, the company itself could enact laws for the "good government" of its territory and could judge company personnel "in all causes whether civil or criminal, according to the laws of this Kingdom." Thus, at least for the HBC and its employees, the law of the western interior was the English law of 1670 and its subsequent development. Because it made no allowance for Aboriginal authority or for such competitors in the fur trade as the French or the NorWesters, the HBC rule was ambiguous and uncertain. The Canada Jurisdiction Act of 1803 was supposed to clear up these contradictions by giving the courts of Lower Canada jurisdiction over criminal offences committed in an undefined zone described as "the Indian Territory." The NorWesters argued that this included Ruperts Land but the Hudsons Bay Company insisted that its Charter took precedence there. The 1803 Act too was a failure.
The death in 1816 of 20 of Selkirks colonists and of the colony governor, Robert Semple, at the hands of Cuthbert Grant and his Metis soldiers, who were allegedly under orders from the North West Company, raised a public outcry in Britain and Canada for intervention and for settlement of the jurisdictional question. Although the problems of the fur trade soon were regulated, the question of legal jurisdiction was not. Instead, the Hudsons Bay Company introduced laws and courts that applied to the European inhabitants of this territory, and especially to the growing settlement at the Red River (under the title of Assiniboia), while the rest of the western interior was left in a kind of legal limbo until 1870.26 Within this "vacuum," it need hardly be added, Aboriginal law prevailed as it had done for centuries. Only Europeans perceived an absence or ambiguity in the law.
The introduction of a Hudsons Bay Company-sponsored legal authority after 1821 inaugurated an interesting and unusual era of experimentation in European-Aboriginal judicial relations. The courts in the district known as Assiniboia (approximately southern Manitoba) developed slowly between the 1820s and the 1860s. At first, Indians in the district were not subject to this jurisdiction, at least not completely. Thus, a murder of one Indian by another in 1824 produced a trial and a reprimand from the governor, but no punishment. After the reorganization of the colonys local government in 1835, however, a regular police and judicial system was set in place and all residents of the community, including Indians, became subject to this jurisdiction as far as "British" residents were concerned. What Aboriginal people thought of this assertion of authority has not been determined. A resolution of the council declared in 1837 that "the evidence of an Indian be considered valid and be admitted as such in all Courts of this settlement," implying that Indian testimony had not been accepted before.27 Local magistrates, several of whom were Metis, presided over the district courts. A higher court, the General Quarterly Court of Assiniboia, was instituted as well and it too had a number of Metis magistrates. In short, a distinctively Manitoban mix of European and Aboriginal legal cultures was evolving in Red River, this most unusual settlement, in the decades around mid-century. Non-Aboriginal people established the contextthe institutions and the laws of this societybut a substantial number of Aboriginal people, almost all of whom were Metis, participated in its working.
Inevitably, enforcement was a problem in a world where armed Metis horsemen constituted the single most powerful military force. As long as the Hudsons Bay Company could count on Imperial troops for support, as in 184648 and 185761, its rule was secure. But when left to its own devices, the company could not control the settlement, let alone the entire western interior. The first casualty of this weakness was the companys very monopoly over trade, the crucial economic gift of the Charter of 1670. The monopoly fell by default in the trial of the Metis trader, Guillaume Sayer, in 1849. Sayer was prosecuted in a company court and found guilty of trading illegally for furs. But the HBC did not have the strength in armed might to enable the court to impose a punishment. Its failure to exact a penalty permitted the armed Metis on the courthouse steps to exult that trade was free, "Le commerce est libre."
Laws concerning bounties for wolves and the placing of flags over holes cut in the river ice (to warn horse and rider) could be enforced without much difficulty in the Red River Settlement. However, the big legal and political issuessovereignty, property rights, language and religionbecame increasingly difficult as the pace of economic development quickened. After Confederation in 1867, news that the territory would cease to be ruled by the Hudsons Bay Company began to circulate in 1868, but neither the British nor Canadian governments discussed the matter with the residents of the North-West. Then, in 1869, "Canadians" arrived from the East and the rumours increased.
Confederation brought a significant shift in British-Aboriginal relations. Constitutional and governmental powers were divided between the federal government and the four provinces that were replacing previous colonies. Some issues of national import were allocated to the exclusive jurisdiction of the Crown. One of these issues was described in section 91(24) of the then British North America Act, 1867, as "Indians, and Lands reserved for the Indians." This section not only conveyed law-making power in this area exclusively to the Government of Canada, but it also empowered the federal government to honour the existing treaty obligations of the Imperial Crown and to negotiate new ones. At the same time, the original four provinces received most of the natural resources through section 109, which stated:
In addition, the provinces were granted jurisdiction over public lands and local matters. This left both levels of government with authority over land. The new Parliament passed its first legislation regarding Indians within a year of its creation, which was inspired primarily by colonial statutes in Upper and Lower Canada.28 Still, fundamental questions of law remained unanswered.
When Louis Riel and his Metis allies challenged the Canadian governments survey and barred the entry of the Canadian governor, William McDougall, in the autumn of 1869, they merely were demonstrating what had become evident in the preceding generation: without the presence of troops in Red River, Hudsons Bay Company law depended on the consent of Ruperts Land residents. That consent was no longer forthcoming.
The late dean of Manitobas historians, W.L. Morton, described the Metis action of 186970 as a "resistance," not a rebellion. His interpretation declared that a power vacuum existed in the Red River Settlement. British, Canadian and HBC claims to sovereignty over this territory had ceased to have any force. Riel had stepped into the void and established a legitimate "provisional government."29
Appealing to the "law of nations" and the "rights of man," Riels Declaration of Metis Independence of 8 December 1869 launched an eight-month government at Red River, drawn from the French- and English-speaking parishes of the settlement. It was a Metis government; that is, it was run by French- and English-speaking inhabitants of mixed European and Aboriginal heritage.
Although the exact legal status of the bargaining process between Canada and Manitoba is a matter of debate, it cannot be denied that the provisional government negotiated the terms by which Manitoba entered the Canadian confederation. Its delegates secured some important gains and sustained reverses. In the end, a relationship of trust and legal obligation was established between two distinct entities.
Louis Riel described the legislation which sealed the bargain, the Manitoba Act, 1870, as a "treaty," in order to convey his view that the deal had the character of an arrangement between nations.
Prime Minister John A. Macdonald, on the other hand, regarded it as a domestic rearrangement, a transfer of responsibility within the British household. The existence of Manitoba was a political necessity, part of the price paid to acquire once and for all an extraordinary land and an ocean-to-ocean future for the new nation. The views of the two men were never reconciled, even to this day.
In the legislation arranging for its assumption of control over the North-West, Canada made several promises concerning Aboriginal people. First, it agreed to accept responsibility for any compensation offered to Indians for land lost to incoming settlers. Second, it accepted the obligation of protecting Indian interests in the new order. Third, it promised 1.4 million acres to be divided among "the children of the half-breed heads of families" as a step "towards the extinguishment of the Indian Title." Fourth, it accepted a number of clauses that were sought by the Metis or their representatives as the means of their self-preservation, including provincial status itself, the use of French in courts and Legislature, an Upper House (that is, a bicameral Legislature) on the Quebec model, and a guarantee concerning denominational schools.30 In each case, the promises were of considerable importance to the Aboriginal people. Moreover, the fact that the Manitoba Act was passed by the Canadian Parliament and then re-enacted by the Imperial Parliament in 1871 ensured it a status greater than that of ordinary legislation.31
Two hundred years of relative peace and cooperation between Aboriginal and European peoples had been distinguished by continuity within each community and two sets of legal assumptions. Manitobas justice system between 1660 and 1870 consisted of two distinct bodies of rules, penalties and enforcement mechanisms. This flexibility ended with the creation of the Canadian province of Manitoba on July 15, 1870. TOP
The Justice Regime under Canadian Rule, 18701950 TOP
The third justice regime extends from the time of Manitobas entry into Confederation in 1870 to the present. We will divide our discussion into two parts, one dealing with the period from 1870 to 1950, and the other with the most recent 40 years.
The third justice regime differed drastically in official character from its predecessor. Indeed, all the rules changed for Manitobas Aboriginal inhabitants. After Canada assumed responsibility for the West, its administrators actually attempted to take control of the lives of Aboriginal people. Their approach relied on three key steps: first, the signing of the treaties which transferred vast tracts of land to the government; second, the passage of the Indian Act which granted absolute power over Indian people to a federal department and its agents (both the treaties and the Indian Act were in place by the end of the 1870s); and, third, the direction of the Metis, separated from Indians by these administrative and legal decisions, onto a different path in 1870. Within two decades Aboriginal people had been pushed aside by incoming settlers. They remained in a backwater, neglected by Ottawa and offered little support by the province.
Early federal statutes were consolidated and revamped when the first Indian Act was enacted in 1876. The Act advanced the policy of seeking to assimilate Aboriginal people, severing their spiritual connection with the land, encouraging a shift in their economy and undermining their traditional government. Indians were encouraged or compelled to "enfranchise" (a term used to reflect that people were acquiring the vote, or "franchise," through losing their Indian status) if they obtained a university or professional education, left the reserve for prolonged periods, sought to send their children to public rather than residential schools, or if Indian women married men who were not registered Indians. When the Indian Act became the legal device to impose these changes, the Indian agent was the local messenger for the Department of Indian Affairs to implement its policies. The Indian Act even went so far as to define a "person" as "an individual other than an Indian."
The Canadian prairies entered a global economy in the last half of the 19th century. Within one generation, the price and production of farm products became crucial matters for prairie dwellers. Newcomers set the rules in local politics. Aboriginal people were governed by legislation originating in Ottawa or Manitoba and by exceptionally powerful local bureaucrats. The two communities, Aboriginal and white, reserve and town, had few points of political intersection.
How had this revolution happened? The virtual extinction of the buffalo was pivotal. Suddenly, between 1870 and 1882, the foundation of the plains economy for millenniaa foundation of greater relative importance than oil or electricity in our daywas no more. Moreover, the context of life always had been established by the land itself. Now, private property, cultivation, cattle grazing and railways would change forever the place of the land in Aboriginal life. In earlier days, Aboriginal people understood that government and its laws flowed from daily life itself; henceforth, however, an alien and distant institution would determine the rules of Aboriginal existence. The dualism of the pre-1870 justice system had officially ceased. As part of the new Canada, prairie Aboriginal people were to be governed by Canadian law. Their own institutions of law and justice came under severe and constant attack.
Aboriginal people themselves acknowledged the development of a new order, although their vision of their future clearly differed from that which Canada had for them. Where possible, especially in northern Manitoba, they worked within their own justice system as they had for centuries. But in the South, especially as the years passed, the new administration increasingly prevailed. In all parts of the province and in the North-West Territories, both Aboriginal and non-Aboriginal people recognized the importance of establishing an understanding between the two societies. Treaties were the foundation of the new order. The key documents for Manitoba, Treaties 1 through 6, were signed between 1871 and 1876. Treaty 10 followed, as did adhesions of individuals and groups.
Although they were based upon the principles elaborated in the Royal Proclamation of 1763, the prairie treaties also reflected the concerns of the new Canadian government to control the pace of development and to ensure peaceful occupation. They guaranteed reserves to the Indians where Indian people believed they would be free from European incursion. They also guaranteed the payment of annuities, the right to hunt and fish in traditional use areas, and transitional economic assistance, including schools and equipment. In exchange, Canada would assume absolute sovereignty over other land.
There is much debate about the character and purpose of these treaties. Were they real-estate transactions, once-and-for-all purchases that had no further implications beyond the words on the page and the transfer of "ownership"? Or were they alliances, ongoing relationships that would have to be renewed and reviewed as circumstances changed? Because these documents are of such crucial importance, we consider their implications in Chapter 5.
The numbered treaties of the 1870s are very "British" legal documents. They deal in specifics, in clauses discussing a plough or a school, not in general statements of principle about sovereignty and continuing responsibilities. Nonetheless, they do arise from presumptions that were the basis for the treaties negotiated before Confederation and from the Royal Proclamation. The difference in effect, however, lies in the existence of the single most important factor in Aboriginal life since European contact, the Indian Act. Significantly, this exceptional piece of legislation is not mentioned in the treaties.
Earlier treaties had assumed Aboriginal self-government. After 1874, however, when federal Indian legislation was declared to be in force in Manitoba, Canadian authorities argued that when Aboriginal people in the West signed the treaties, they had bargained away not only their lands, but also their powers over local affairs. Thus, the treaties were not what they seemed, nor indeed what the Indians had accepted in the 1871 and 1873 negotiations. By an act of the federal Parliament, unilaterally conceived and drafted without Indian knowledge, Ottawa drastically altered the circumstances of Aboriginal life.
The history of Canadas Indian legislation goes back to Britains paternal and patronizing concern for the disadvantaged of the world, and for the victims of its own rapid industrialization in the 18th and early 19th centuries. The rise of Christian evangelism in England and of humanitarian campaigns occurred during those decades of social crisis. Idealism and social concern impelled political reformers to ban child labour, to form lobby groups to abolish the African slave trade and to form Christian missionary societies to convert Aboriginal people throughout the British Empire. Canada, like India, Africa, Australia and New Zealand, was a target of this attention.
The change in Englands outlook toward cultures that differed from its own produced changes in Canadian Indian policy in the 1850s. A relationship that had been remarkable for its interdependence and cooperation foundered on the growth of Canadian "civilizing" forces. It also foundered on Indian resistance to the "civilizers." Ontarios Indians, for example, insisted upon common land ownership as the basis for a continuing distinct culture. Canadian officials insisted that proper industry and morality could accrue only to land-owning, enfranchised, assimilated Indiansthat is, former Indians. Canadas Gradual Civilization Act of 1857 was the first of many laws designed to extinguish Aboriginal cultures, to "break them to pieces" as one Aboriginal leader declared.32
The newly confederated Canada turned to the issue of Indian affairs in 1869. Having failed to make headway in their "civilizing" campaign in the preceding decade, officials of the Indian Affairs bureaucracy urged the abolition of Aboriginal self-government and were successful. The 1869 Act for the Gradual Enfranchisement of Indians provided for the possibility of band elections under the supervision of the Superintendent-General for Indian Affairs.33 By amendments passed seven years later, in 1876, the elected band council could make no laws without confirmation by Canadas Governor in Council.34 Henceforth, the federal government would control life on Indian reserves and promote measures that were designed to assimilate Indians into European-Canadian society. Traditional means of selecting Aboriginal leaders, which were built on consensus and were very flexible, thus could be bypassed or overruled.
Federal legislation on Indians was imposed on Manitoba in 1874. The policy of enfranchisement and assimilation did not change, despite numerous minor revisions to the Act, from that day to the present.
The new justice system, as represented by the Indian Act and supplementary legislation, soon was being employed to prevent Aboriginal people from expressing their traditional beliefs, from pursuing their traditional economy and from asserting their political rights as individuals or as members of Canadian society. In every aspect of life, from criminal law to education and religious expression, from hunting to agriculture, from voting to the use of lawyers, Aboriginal people ran into regulations that restricted their freedom. Traditional systems of government were replaced by a restricted and illusory form of democracy in which only adult men had a voice and a vote. All real power rested with the Indian agent, who supervised the voting, chaired the meetings, kept the official records, decided when, where and if the chief and council would meet, and controlled the councils agenda. All Indian agents were granted considerable power by 1881, by being appointed automatically as justices of the peace through An Act to amend "The Indian Act, 1880." (S.C. 1881, c. 17, s. 12) Each agent had full authority to conduct trials anywhere in the country involving Indians charged with violating the Indian Act or with certain crimes under the Criminal Code. As a result, the Indian agent could direct the police to prosecute "troublemakers" and then sit in judgment. The agents effectively had power over all aspects of daily life.
The role of elders and the extended family as teachers of the young was destroyed. Residential schools were established by the Department of Indian Affairs in conjunction with religious denominations. Children were forcibly removed from their families and transported far away for most of the year to attend schools where English was the sole language of instruction and children were punished for speaking their own language. Far from simply "civilizing" Indians, as had been the apparent purpose of government policy in the first half of the 19th century, the new system actually utilized aggressive, coercive methods to bring about Aboriginal assimilation.
Government officials clearly represented the values and circumstances of their times. They were neither stupid nor incompetent. The culture in which they dwelt was imbued with racist assumptions and presumptions that were not considered abhorrent to anyone in Canadian society except to the Indians. Officials acted in the belief that they could not leave any group of Canadians without the benefits of Christianity and the values of industrialized England. This is why a policy that seems to us short-sighted and odious could command widespread assent in the Canadian community of the time.
Government officials and missionaries saw the disasters that could result from Aboriginal exposure to the worst sort of white environment. This was part of the thinking behind their idea that Christianity and "civilization" must be delivered together. In some parts of the country, although less often in Manitoba, trading posts degenerated into dirty, disease-ridden, violent settlements. Commenting on one of the less savoury posts, Fort Simpson in northern British Columbia, William Duncan, Church of England missionary, condemned the idea that mere "civilization" without the Gospel would convince Aboriginal people to adopt Canadian ways:
These government and church policies, however well intended, reduced an autonomous and secure people to the status of children in the eyes of the law, and thus robbed the Aboriginal community of the very rights that were said to be at the heart of the British system of government. Aboriginal people, in their turn, employed numerous strategies of resistance. It is no wonder that such fundamental disagreements produced social crisis.
The purpose of government policy was to remake Indians into "good Canadians." In the words of a prairie newspaper, in its review of Aboriginal exhibits at an agricultural fair, it would make "the Red Man White in all but colour."36
This purpose required that Aboriginal distinctiveness be destroyed. Any significant political resistance to Canadian Aboriginal policy would be met with the full force of the state and the law.
The most dramatic episode in this story is the 1885 uprising in the North-West Territories. We have all heard about the hanging of Louis Riel after his trial in Regina. We have heard little or nothing about the other trials during the summer of 1885. We think of the uprising as an AboriginalMetis and Indianprotest but ignore the details of the Indian diplomatic and military campaign during 188385 to establish larger, contiguous reserves and to throw off the shackles of the Indian Act. According to court statistics, in addition to two whites (one acquitted, one found insane) and 46 Metis (28 released without trial, 11 released upon a recognizance of $400 to attend trial but later dismissed, and seven found guilty), there were 81 Indians arrested and placed in the holding cells after the 1885 uprising. The courts eventually sentenced 44 Indians to jail terms, most for "treason-felony." The Cree chief Poundmaker, one of those charged, was "convicted on evidence that, in any ordinary trial would have ensured his acquittal without the jury leaving the box," according to an experienced legal observer.37 He received a three-year sentence.
Big Bear, who also was charged with treason-felony and given a three-year term, had been one of the leaders who opposed violence. He repeated this defence to the court before his sentencing, saying in part, according to a newspaper report:
Most of the Indians were sent to Manitobas Stony Mountain prison. Their hair was cut off (Poundmaker and others had long braids) either during their trials or when they arrived in Manitoba in the autumn of 1885, and they were allotted various tasks. Big Bear was employed as a carpenter, then in the barns and as a servant or "chore-boy" for the stewards wife in her home next to the prison. He was said to be devastated. He reportedly accepted conversion to Christianity in the summer of 1886. Twenty-nine other Indian inmates were alleged to have done so in February of that year, but this may have been linked to the federal cabinets decision to release many of those Indian prisonersbut not Big Bearin March and April. The report of Big Bears conversion came when he was very weak and one might well imagine the depth of despair that could lead him to renounce his lifelong beliefs.
The government wanted no martyrs. One Arrow, unable to move without assistance and broken-hearted that he had been ignored when the first group of parolees was selected, was released in April, but he never left the St. Boniface bed to which he was moved and he died within two weeks of his liberation. When Big Bear too fell ill in January 1888, the federal cabinet approved his release. He died within the year.
A huge gallows was erected in Battleford in the late autumn of 1885. Eleven days after Riels hanging, on November 27, hoods were placed over prisoners heads and ropes were adjusted, and while they sang their death songs eight Indians were executed. The trials, the imprisonments and the hangings spoke of a new order.
The character of that new order was discussed years later by Joe Dion, a grandnephew of Big Bear:
Indian people viewed Canadian honesty as "thin" because of what they inferred from the treaties and because of what they understood their relationship to be with government and the Crown. Their judgment also arose from what actually was done under the cover of the Indian Act by Canadian governments and officials. The use of Canadian law to control Aboriginal education and religion illustrates the depth of the cultural divide between the two communities, and the basis for the Aboriginal perspective.
European and Aboriginal people long have recognized that schools were influential cultural institutions. Canadians have waged historic struggles over their control, not least in Manitoba where "schools questions" were debated keenly in the 1890s and again during World War I, as well as in recent decades.
In the treaty discussions of the 1870s, Indian negotiators had sought and obtained promises from the government that schools would be provided on their reserves. By choosing to ask for schools and to send their children to them, they were making a profound decision. Indian leaders were accepting the need to adapt to, and to make their way into, the European-Canadian cultural milieu. They were not, however, agreeing to become European-Canadians or to cease to be Aboriginal peoples. They saw, however, the need to make an economic transition and to learn the arts of communication associated with writing, print and the telegraph.
The fact that Aboriginal people voluntarily made this choice is important. Government records contain numerous Aboriginal requests for schools. As Dan Kennedy, later an Assiniboine chief, recalled, he was told at the age of 12 that he must learn "the whitemans magic art of writing, the talking paper."40 Despite their wish to learn these communication skills, many Aboriginal people did not want lessons in the Christian religion. As soon as possible, they believed, their own people would become teachers. As they had done in the past, they wished to control the values that were being communicated to their children.
Even those Aboriginal parents who chose to send their children to schools would not have expected that the curriculum included a great deal more than reading, writing and arithmetic; or that the children might be taught to hate their former culture and to reject their families. This statement in the Annual Report of the Department of Indian Affairs in 1889 would not have been well received by Aboriginal people, particularly by those who negotiated the treaties:
Manitobas Aboriginal people may have wanted one type of school, but they soon were compelled to attend another. In 1894 the federal government passed legislation that provided for the arrest and conveyance to school of truant children, and for fines or jail terms for parents who resisted. Indian agents were given the power to commit children under 16 to such schools and to keep them there until they were 18. The Province of Manitoba did not introduce compulsory schooling for non-Indians until 1916, 22 years later. As a way of ensuring that the most compelling cultural messages were delivered to the children, and of keeping government costs to a minimum, the government increasingly relied on church missionary societies, particularly of the Methodist, Presbyterian, Anglican and Roman Catholic churches, to operate residential schools. Canadian people are only beginning in the 1990s to comprehend how harsh, how demeaning, how exploitive were these institutions. The form and content of this education bore no resemblance to that desired by Aboriginal parents.
The economic crisis associated with the near-extinction of buffalo, the political struggles caused by the Indian Act and the conflicts over educational policy all caused tension and conflict in Aboriginal communities. These anxieties were made worse, in the view of Aboriginal elders, by the growing struggle between government and Indian over Aboriginal religious expression. For many elders, the freedom to worship in traditional ways was crucial to Aboriginal cultural survival. However, the Canadian government made it a crime to practise traditional prairie and British Columbia Aboriginal religious ceremonies, including the Thirst Dance, the Sundance and the Potlatch. The law that introduced the religious prohibition was an 1884 amendment to the Indian Act and banned "give-away ceremonies." Another amendment in 1895 prohibited "wounding or mutilation" ceremonies (associated with Plains Indian rituals by uncomprehending non-Aboriginal observers). Yet another amendment in 1906, revised slightly in 1914, forbade dancing of every description and made it a criminal offence for Indian people to participate in festivals, pageants or stampedes in western Canada without government consent. Indian people even were prohibited from wearing traditional Indian costume without government consent. The rules were only eliminated in the Indian Act amendments of 1951.42
The story of government and church opposition to the religious ceremonies, and of Aboriginal resistance, has been documented with precision.43 We have been impressed by the consistency and patience shown by Aboriginal leaders as they fought to retain the right to worship in their own way. Their letters to the Department of Indian Affairs deplored the moral dilemma in which they had been placed: obey either the secular law of Canada or the law of their God. An example of these many letters is one from Joe Ma-ma-Gway-See in 1908 that defended the Aboriginal right to hold a Sundance: "The law you make is of this world and we follow the law of God. If you stop everything we do we may as well go without the law of God.... I am afraid of your trying to stop sun dances according to the law of God. I have never seen him but it is in his command to us and you are trying to stop it...."44
The Aboriginal leaders understood full well the legal implications of the government ban. One of the great traditional chiefs of that generation of negotiators, Thunderchild of the Plains Cree, explained his case in his own language to Reverend Edward Ahenakew, also a Cree, who then translated it:
Other laws and regulations also had an effect on religious expression. The government imposed a "pass system" which disrupted religious ceremonies by preventing extended families dispersed on different reserves from meeting together. The pass system had been discussed by government officials in 188485 in response to the diplomatic campaigns for Aboriginal solidarity led by Big Bear and other Saskatchewan chiefs. It was imposed by a local agent without senior government approval in 1885.
As well as a means of restricting religious ceremonies, the pass system was used to control or prevent parent-child meetings at residential schools and to undercut political activities. Indian people were not allowed to leave the reserve to hunt, fish or trap, to seek employment, or to visit their children in residential schools without first obtaining an official pass from the local Indian agent. Withheld passes could result in severe hardship, and the threat to do so was one powerful force in inducing parents to agree to permit their children to be taken away for schooling.
The Criminal Code in 1892 made it possible to charge with an indictable offence any person "who induces, incites, or stirs up any three or more Indians, non-treaty Indians or half-breeds" to meet together to make demands upon civil servants in a riotous or disorderly manner. This clear violation of the fundamental principle of freedom of association enjoyed by Canadians significantly prevented the development of Aboriginal political organizations and minimalized the pressure on the federal government to honour its obligations. Any efforts by Indian people to pursue justice through Canadian courts about their grievances were blocked effectively as well by the Indian Act, which made it an offence to raise money to commence claims against the Crown and made it illegal for a lawyer to receive fees to represent an Indian or band for this purpose without the consent of the Superintendent General from 1927 to 1951. (An Act to amend the Indian Act, S.C. 192627, c. 32, s. 149A)
Although the pass system was enforced fairly strictly by the North-West Mounted Police in the 1880s, neither Indians nor police accepted the legality of the prohibition for long. It was a makeshift policy, intended to control and monitor peoples movements, and would have been thrown out of any court. It is striking, however, that no less an authority than Sir John A. Macdonald recognized its illegality and yet thought the introduction of the system was "in the highest degree desirable." The prime minister made the damning admission that "no punishment for breaking bounds can be inflicted & in case of resistance on the grounds of Treaty rights should not be insisted on."46 Despite aggressive attempts by the Indian Affairs staff to enforce the restrictions, the pass system fell into disuse by the opening decades of the 20th century.
The intended destruction of Aboriginal culture was associated, in the governments view, with the image of a new type of Aboriginal Canadian, one much like his or her non-Aboriginal Canadian counterparts, one who worked and thought and spoke in the countrys common cultural "language." Proper economic behaviour was to be part of this language. In southern Manitoba, the destruction of the buffalo ensured that agriculture would be an important part of the Aboriginal economic transition.
For too long, Canadian scholars have perpetuated the idea that Aboriginal culture was hostile to field crops and animal-raising. This is simply not true. Aboriginal people in northern Ontario and the prairie provinces had seized the opportunity earlier to become farmers for the obvious reason that they faced an economic crisis. Unfortunately, a combination of climatic reverses, inconsistent government financial support and disastrous federal policy decisions destroyed the hope of Aboriginal agriculture.47
The legal system itself played a large part in this tragedy. The law was used to forbid Indian sales of produce off the reserve without the approval of the Indian agent. It later prevented Indians from mortgaging reserve lands in order to purchase farm implements. Such controls undermined the very initiative that the government claimed was its goal. Aboriginal people, according to the expressed intent of Indian Affairs officials, could not be permitted to develop their agricultural operations beyond "peasant farming." The Indian Act contained the following provision from 1876 until 1951:
As a policy declaration put it, the government should
Indians would have to walk their fields with hoe and scythe before they could purchase binders and reapers. Yet, free grants of "homestead" land were distributed widely to newcomers by the federal government under the Dominion Lands Act, which even advertised such grants abroad to attract European immigrants. By the end of the 19th century, Aboriginal hopes for agriculture had been dashed. Residents on the reserves had been reduced to garden-plot and subsistence farmers.
The relative weakness of reserve agriculture created a new crisis when prairie settlement began to boom in the late 1890s. The demand for farmlands, when combined with European-Canadian cultural values concerning the "proper use" of land, posed new threats to the Aboriginal reserves. As local pressure on the Prairies increased, laws were revised to permit, first, rental of reserve lands to white farmers and, second, sale of these lands by the Indian Affairs department to local farmers. Although this story will take years to unravel, one scholar estimates that half the land allocated to reserves in southern Saskatchewan, 270,000 of 520,000 acres, was sold between 1896 and 1928.50
Every Manitoban should be told at least one chapter in the provincial story of Aboriginal land surrenders. The most striking case concerns the historic Aboriginal settlement situated along the Red River between Lower Fort Garry and Lake Winnipeg. The Indian settlement in this area had been recognized in the Selkirk treaty of 1817 and was led shrewdly for nearly half a century by one of the signatories of that treaty, Chief Peguis. Under the title of the St. Peters Settlement, a large tract of land was set aside as the home of nearly 2,000 Aboriginal people in the Stone Fort Treaty, known as Treaty 1, in 1871. However, the pressures for "development" of this prime agricultural land, and the uncertain status of many of the riverbank lots that had been granted years before to Peguis and later sold to non-Indians, produced seemingly endless legal disputes in the late 19th century. None of this was exceptional. The eventual solution was, however, nothing short of disgraceful.
The federal government appointed a Royal Commission headed by the Chief Justice of the Manitoba Court of Appeal, Hector Howell, in 1906 to investigate the disputes. Rather than investigate, Howell suggested that the solution to the problem was simply to move the Indians. A series of rigged meetings of questionable legality followed. The appalling campaign for surrender of the reserve, led by men who wished to speculate in forthcoming land sales, was abetted by insider trading in lands by government officials, bribe payments to Indians and a coerced vote by St. Peters residents that could never be called fair or honest.
Having been cheated out of the land that had been theirs for more than a century, the St. Peters Indians waged a campaign for its restoration. Eventually, a provincial Royal Commission reviewed the circumstances of the surrender and concluded in 1912 that "the Surrender was not only voidable but void, could not be ratified and was not so ratified."51 Nonetheless, the federal government chose not to intervene. Instead, it confirmed the allocation of a new reserve on the Fisher River (the present Peguis Reserve) and enacted the St. Peters Reserve Act in 1916 to validate legal titles to land on the old reserve.52 Despite the protests of the St. Peters band, the case was closed, at least as far as the government was concerned.
The St. Peters case is not unique. Manitoba chiefs contended in 1978 that at least 25 bands in the province had not received their full land allotment under the terms of their treaties.53 In addition, a number of other unusual caseslike the St. Peters surrenderdemonstrated that the economic base of the Aboriginal people had shrunk in the century since the original treaty agreements were negotiated. Many of these surrenders seem to have been marked by "moralistic, self-righteous, and dictatorial" actions by government officials and the wrongful extinguishment of Aboriginal land claims, as one historian concluded after investigating the disappearance of the Turtle Mountain Dakota reserve.54 TOP
Political Responses TOP
Aboriginal people did not accept these impositions, infringements and betrayals without protest. Their political representatives spoke out many times against injustices. However, just as law could be used to forbid a religious ceremony or an economic initiative, so it could crush a movement of political resistance. The Canadian government effectively weakened Aboriginal spokespeople throughout the period of the third justice regime.
The government first used the treaties to undermine Aboriginal sovereignty. Chiefs who had been independent in the pre-1870 era were regarded as agents of the federal administration in the new order. Alexander Morris, a Lieutenant-Governor of Manitoba in the 1870s, suggested to the government that the chiefs "should be strongly impressed with the belief that they are officers of the Crown, and that it is their duty to see that the Indians of their tribes obey the provisions of the treaties." He argued that it would be advantageous to the government "to possess so large a number of Indian officials, duly recognized as such, and who can be inspired with a proper sense of their responsibility to the Government."55
After the passage of the Indian Act in 1876, the government had much greater power over Aboriginal political activity. It controlled, first, the decision over who could be admitted to membership in the political community: an Indian was someone designated by federal law as an Indian. It also controlled the process by which leaders were selected. Traditional chiefs could be removed. The Indian agent, a government appointee, regulated and chaired the meetings of band councils and the elections of chiefs and councillors. He was given the powers of a stipendiary magistrate or police magistrate in respect to the Indian Act and to some criminal offences. Moreover, the agent could suspend Indians who, in his view, had conducted their family relations badly. Finally, the agent could control the bands economic planning and its funds.
The assumption of the original Indian Act was that, as they gained experience with European-Canadian life, Indians would want to leave their bands and join the larger society. The formal transfer from "Indian" to "Canadian" status would occur when they acquired the franchise. However, very few Indians followed this path. In 1920, as a result, the Act was amended to give the federal cabinet power to take away Indian status from an Indian family head (and his family) and to make his enfranchisement compulsory. This clause was repealed in 1922, reinstated in 1933 and finally dropped in 1951. It illustrated that the destruction of Indian culture and the control of political decisions remained at the heart of federal government policy in the 20th century. As the departments deputy minister, Duncan Campbell Scott, wrote: "Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian Department."56
Manitoba Indians continued to reject outright the assimilative goals of the federal government. In 1947 the Indian Association of Manitoba, led by Tommy Prince, a decorated war veteran from the Brokenhead Band, among others, called for the repeal of the Indian Act and a return by both parties to the original treaties.57 The key Aboriginal political goal continued to be the restoration of self-government. The secretary of the Fort Alexander Catholic Association told the joint committee reviewing the Indian Act that, "Much self-reliance and an urge to progress would ensue if more and more power was left to the council for management of the local affairs with the friendly cooperation of the Indian agent."58 TOP
The Metis TOP
The Metis, despite their Aboriginal origins, were separated from Indians by the numbered treaties and the Indian Act. Their history subsequently followed a very different course. Metis struggles over land in the Red River Valley during the 1870s produced disagreements that have been raised again in todays courts. Certainly, there never has been a secure settlement of differences between Metis people and the larger Manitoba society.
The definition of the term "Metis" is complicated. At the simplest level, it applies to children of mixed European and Aboriginal parentage. In the 19th century, it also might have meant that an individual occupied a position as an economic or cultural intermediary between the two societies. Thus, mixed-race people who lived and hunted with Indians, or who accepted a plot of land in St. Peters Mission on the Red River, might well be seen as Indians but, if they served as translator or freighter and lived in trade- and farm-based settlements, they would be regarded as Metis.
Language also played a role in the attributions of identity. This meant not only Aboriginal and European language usage, but also whether one employed in daily life the various European-Aboriginal language combinations known as Bungi and Michif.
Religion too could distinguish Indian from Metis, just as it separated English-speaking Protestant "country-born" households from French-speaking Roman Catholic "Metis" families. After the 1870s, former Indians who had lost their status under the Indian Act (which was the case for many people, including Indian women who married European-Canadian or "non-status" men until the Act was changed in 1985) also complicated the Metis category.
Eventually, perhaps at some point in the early 20th century, history and family networks, group consciousness and political forces combined to select those who wished to maintain a Metis identity. From that time, some Canadians have identified themselves as Metis. This has acquired political significance since the 1982 revision of the Constitution of Canada, which recognized "Metis" as a distinct category of Aboriginal person.59
It will be apparent that the history of the families themselves has been crucial in the evolution of a Metis consciousness. In Manitoba, the Metis rallied in the early 20th century to tell their story because they believed the histories then available, mainly by English-Canadians, did not do them justice. After much work and many delays, Auguste Henri de Tremaudans Histoire de la nation metisse dans louest canadien was published in 1936.60 In their foreword to the work, the Historical Committee of LUnion Nationale Metisse Saint-Joseph de Manitoba explained their purpose:
The history of Manitobas Metis people has been marked by conflict and neglect. In the 1870s, Winnipeg was likened to an armed camp that denied peaceable access to French-speaking citizens of mixed race.62 As Lt. Governor Archibald commented in 1871, the Metis were concerned
Because a court case continues concerning the allocation of lands a century ago, we do not wish to comment directly on that matter. Nonetheless, the legacy of bitterness must not be minimized.
A 1959 government report by Jean H. Lagasse, A Study of the Population of Indian Ancestry Living In Manitoba,64 concluded that heredity (some degree of Indian ancestry) and a way of life (associated with poverty and with proximity to Indian communities) still distinguished a group of Manitobans as Metis. It argued that Metis were an important, sizeable component of the provincial population (nearly 24,000) and that it would be
The main recommendations of the study were based on the conclusions that Metis, like Indians, had a lower standard of living than other Canadians and that new policies were necessary to address their problems.66 Some of these concerns still apply today, 32 years later. TOP
Crisis in Aboriginal Relationships with the Justice System, 19501990 TOP
Aboriginal people sustained serious blows in the 80 years after Confederation. They lost not only their traditional economy, but also, thanks to an extraordinary series of official interventions, their political and religious autonomy. Although some bands managed to avoid the long arm of Canadian bureaucracy, most felt the increasing pressure brought about by changes in their legal status. The third justice regime, in our view, introduced a series of tragic mistakes in Canadian-Aboriginal policy.
The third justice regime continued to operate after World War II, but its effects were dramatically different. We are suggesting that the official rules did not change, but that the reality of contact and enforcement, as opposed to the theory, did supplant Aboriginal law in this period. Canadas laws and police impinged increasingly on the daily life of Manitobas Aboriginal people after 1950 and the consequence has been disastrous for the Aboriginal community.
Manitoba was merely a tiny part of an integrated international economy and trading community in the decades after 1945. Like citizens all over the world, Manitobans were required to adjust to the new patterns of trade and technology. Farms and country towns could hold their children no longer. The proportion of the population able to work in agriculture declined steadily. At the same time, Winnipeg grew in population. As the global competition for economic growth increased, entrepreneurs and government turned to the northern lands of the provinceto the rivers and forests and mineral wealthfor resources that might provide additional revenue and jobs. Wildlife legislation was applied extensively to Aboriginal people for the first time. Even food harvesting activities became subject to strict controls on seasons and catch limits. Each of these trends had an impact on Manitobas Aboriginal population. TOP
The Treatment of Indian Veterans TOP
Indian veterans returned from the war to find that all the rights they had possessed while in the service disappeared after they returned to their reserves. The laws applicable to Indians stated that they could not vote, could not enter licensed establishments or participate in real decision making within their communities.
Indian veterans indicated to us that they did not receive the benefits available to veterans after both world wars and the Korean conflict, and stated that the legislation that governed their rights was discriminatory in content and application. The controversy centres on the Soldier Settlement Act 67 and the Veterans Land Act,68 both of which were intended to direct the settlement of returning soldiers to western rural areas and to increase agricultural production.
The Soldier Settlement Act made provision for either a grant of free land or the lease of land and loans to purchase land, livestock and equipment, plus instruction in agricultural methods. The Minister of the Interior made Dominion lands available free to veterans, or the Soldier Settlement Board purchased land on behalf of the veterans.
The Indian Affairs department administered the Soldier Settlement Act to Indian veterans settling on and off the reserve as a result of an amendment to the Indian Act.69 The actual distribution of benefits to Aboriginal veterans appears not to have occurred because:
A regulation under the Veterans Land Act in 194572 authorized Indian Affairs to administer the veterans grant of $2,320 to Indian veterans who settled on the reserve. The local Indian agent provided information and authorized grants for the purchase of a building or for building improvements. A grant to purchase household and fur trapping equipment could not exceed $250 and $850, respectively, with the remaining amount to be used for the purchase of land, farm equipment or livestock. The money also could be used towards the acquisition of occupation rights to land located within a reserve.
Although Aboriginal veterans apparently were eligible for Veterans Land Act benefits off the reserve, it is uncertain whether they did receive land and other benefits. The Indian Act continued to prohibit the acquisition of parcels of land or "homesteads." As well, the Indian veteran who settled off the reserve automatically lost benefits under the Indian Act and could become enfranchised.
The Indian Affairs branch and its agents administered the Veterans Land Act on behalf of Veterans Affairs. In effect, the local Indian agents had total control of the program in that they provided information to veterans and also awarded benefits. The actual number of applications made by Aboriginal veterans, the number refused and the reasons for refusal are unknown. A New Brunswick/Nova Scotia study indicated that local Indian agents were the "weak link" in the administration of benefits to Aboriginal veterans.73
The topic of Indian veterans entitlement is important and should be acknowledged. A detailed study of the federal statutes and regulations, and their implementation, is needed to determine the exact points of unequal treatment of Aboriginal veterans. We have not done so. However, we are able to conclude the following:
Post-War Change TOP
Enforcement of Canadian law among Aboriginal Manitobans became increasingly important in the decades after World War II. Although the statistics are notoriously unreliable, the Superintendent (later Commissioner) of Penitentiaries did report annually to Parliament on the numbers of inmates in federal correctional institutions. In our brief survey of the Manitoba incarcerations, we discovered that the proportion of "Indians" and of "Indian half-breeds," and of the various other equivalent designations that appeared in the reports for 1900, 1913, 193233, 193435 and annually until the 194950 report, in the Manitoba penitentiary populaton reflected no more than the Aboriginal proportion of the Manitoba population in this period.74 The Aboriginal proportion of the Manitoba penitentiary population increased in an extraordinary fashion during the decades after 1950. We estimate that more than 55% of all jail admissions in 1989 were Aboriginal, whereas the Aboriginal proportion of the provincial population was just under 12%. We believe that policing agreements with the Royal Canadian Mounted Police play a part in this story because they introduced consistent enforcement of Canadian law to communities where, until that time, Aboriginal law still operated. We also recognize that construction of highways and the use of automobiles added an important new cause for police activity. The Bracken Report of 1955, which led to the wider availability of alcoholic beverages in the province, accelerated the trend to greater Aboriginal involvement in the justice system. So too, as we shall see, did closer supervision of, and amendments to, social and family legislation.
Northern Manitoba especially was affected by the changes after World War II. The single ribbon of rail from The Pas to Churchill was completed in 1929, but the railway was just the precursor of the highway and airplane, and the hydro-electric and mine developments that have transformed the northern part of the province since 1945. We urge Manitobans to keep in mind how recent is the economic revolution in northern Manitoba. Major projects associated with Thompson, Lynn Lake, Sherridon, Jenpeg, Grand Rapids and Leaf Rapids occurred after 1945. It is only 65 years, one lifetime, since Manitoba bush pilots carried pigeons with themto send messages in case a mechanical failure forced them to land on an isolated northern lake. The cultural adaptations appropriate to the new circumstances in northern Manitoba, whatever the merit of the projects themselves, cannot occur overnight.
Many Canadians, Aboriginal and non-Aboriginal, challenged the constitutional and political arrangements governing Indian and Metis people during this era. Although the Indian Act was revised in 1951, its underlying philosophy was not changed. By the 1960s, the long-standing opposition in the Aboriginal community to its provisions was reinforced by public recognition that the Act was no longer defensible. The governments treaty promises, made in the 1870s, also returned to the public agenda. TOP
The Franchise TOP
The most important barrier to fall was the vote. Manitobas Aboriginal people, at least the hundreds who lived within the boundaries of the "postage stamp province" in 187071, including the inhabitants of the large community in St. Peters parish, possessed the right to vote in the provincial election of 1870. Like their fellow Manitobans, they only had to be "householders," meaning "master or chief of a household." A statute of 1871 introduced a formal property qualification (a voter must own property worth $100 one year before the election or, in the case of tenants, pay a yearly rental of at least $20), but Aboriginal people retained the franchise.75
Prime Minister Macdonalds administration finally passed a federal franchise law in 1885. It permitted certain Indians to vote by providing that the word "person" meant a male person including an Indian but disqualifying
In 1886 the Manitoba government revised its Election Act to disqualify Indians or persons of Indian blood receiving an annuity from the Crown.77 Both exclusions should be placed in the context of the 1885 uprising in what is now Saskatchewan. Nonetheless, the removal of a fundamental right of citizenship was a profound blow to Aboriginal membership in the Canadian community. A generation later, in 1931, Manitoba followed the Ontario example and amended this legislation to permit Indians who had served in the British or Canadian armed forces, or in the forces of a British possession, or the forces of a British ally during the Great War, to vote in provincial elections.78 Finally, in 1952 Manitoba returned the provincial franchise to Aboriginal people.79 Only in 1960, 75 years after the first legislation, did the federal government return the franchise in national elections to Manitobas (and the nations) Indian people.80 The relationship between the vote and Aboriginal political action in the 1960s and 1970s should be a salutary reminder of the importance of this pivotal expression of sovereigntyor at least of some measure of control over ones lifein public affairs.
Although the Indian Act was revised after extensive hearings in 1951, the revisions did not answer the Aboriginal requests for greater self-government. While some of the Acts worst aspects were eliminated, the power of Indian agents remained. Indian agents still exercised complete control over band councils, served as justices of the peace and regulated virtually all aspects of daily life. One important change was the inclusion of a provision (formerly section 87 and now section 88) that made provincial laws applicable to Aboriginal people on reserves. While this was subject to certain limitations, such as federal laws, treaties and by-laws, the clear intent was to involve provincial governments more actively in daily life and to reduce the unique legal status that reserves had enjoyed previously.
One of the by-products of this initiative was the sudden arrival of the child welfare system, delivered by social workers applying urban, middle-class standards. Thousands of Aboriginal children were taken from their families across the country as being in need of protection. This experience, referred to as the "Sixties Scoop," had a profound and very destructive effect on many Aboriginal communities.81 Combined with the residential school system, it meant that generations of children were not raised within their families or communities, thereby never learning their traditional culture or patterns of parenting. TOP
Aboriginal Political Campaigns after 1969 TOP
The rapidly changing context of Canadian politics and increasing pressure from Aboriginal organizations forced the government to review its Indian policies again in the 1960s. The result was the White Paper of 1969, entitled Statement of the Government of Canada on Indian Policy. Influenced by Prime Minister Trudeau and developed after three years of consultation, the government articulated a position in direct conflict with the advice received. This statement of policy opposed continuation of a distinct Indian status and of treaties between Canada and Aboriginal people. Treaties were regarded as anachronisms to be discarded, and Aboriginal rights and Aboriginal title were dismissed as irrelevant and without legal foundation. The new policy would repeal the Indian Act and transform reserves into communities no different from their non-Aboriginal neighbours. The ideal being set out was equality under the law. (We discuss different interpretations of "equality" in Chapter 4.) Three centuries of legal and customary arrangements would have been abrogated in one legislative stroke.
The White Paper provoked condemnation from Aboriginal groups across the country and soon was dropped. If the policy proposals died, the Aboriginal political response did not. The national Indian campaign against the White Paper developed into a movement and an organization. The rallying points included self-government and Aboriginal rights, but at the centre of the discussions were land claims, treaties and the Aboriginal relationship with the Crown.
A consequence of the federal governments disastrous failure in launching the White Paper was that, in the following years, Ottawa was much more interested in seeking the opinions of Aboriginal people. It dropped its proposal to repeal the Indian Act. It funded separate regional and national organizations for Indians, Inuit and Metis peoples, and it began to devolve administrative responsibility upon local chiefs and councils. Local band agents, some of whom had been evicted from reserves in the 1960s, withdrew to district and regional offices. In their place, an Aboriginal civil service and Aboriginal programs began to emerge on the reserves.
In 1973, the Supreme Court delivered its historic decision on the land claim of the Nishga of northern British Columbia.82 Although the appeal was lost, six justices of Canadas highest court concluded that Aboriginal title existed under Canadian law.
The federal government, searching for a policy in the aftermath of the White Paper, announced in August 1973 that it would negotiate the settlement of Aboriginal title land claims, henceforth known as "comprehensive claims," in northern Quebec, British Columbia, the Yukon and Northwest Territories. The existing policy concerning treaty and reserve land claims would be continued under the rubric of "specific claims." In addition, southern Quebec and Atlantic Canada, where treaties but not land surrenders were at issue, were placed in a third, undefined category. Thus, as in the rest of Canada, so in Manitoba: Aboriginal concerns about unfulfilled promises slowly were being addressed. The issue now became one of administrative lethargy. How long would the process take?
The national campaign to patriate the Constitution also drove Aboriginal politics. By promising constitutional renewal after the Quebec referendum of 1980, Prime Minister Trudeau implicitly raised the issue of treaty and Aboriginal rights. Aboriginal organizations seized an opportunity to entrench these rights beyond the reach of future governments, and to win respect for their claims and status in the nations constitution. Indian, Inuit and Metis national leaders cooperated in the presentation of a joint case and, in January 1981, the Joint Parliamentary Committee and the federal cabinet agreed to include a clause in the draft constitution concerning recognition of Aboriginal and treaty rights. A year of intense lobbying followed. In the end, a diluted version of the Aboriginal and treaty rights clause became part of the constitution that was proclaimed on April 17, 1982.
Patriation of the Constitution was a turning point for Canadian-Aboriginal people. Section 35 recognized and affirmed the "existing aboriginal and treaty rights of the aboriginal peoples of Canada." Under this section, Aboriginal peoples were defined as "the Indian, Inuit and Metis peoples." (s. 35(2)) Another section shielded those rights, as well as other rights and freedoms of the Aboriginal peoples, from challenge under the Charter of Rights and Freedoms. (s. 25) A third section promised a First Ministers Conference on Aboriginal constitutional matters before April 17, 1983. (s. 37) That conference, in turn, agreed that both sections 25 and 35 of the Constitution Act, 1982 would be amended to protect the rights contained within past and future land claims settlements as treaty rights. It also decided to amend section 35 to guarantee sexual equality among Aboriginal men and women in the enjoyment of their rights. The conference declared too that none of the provisions of the Constitution Acts of 1867 and 1982 expressly referring to Aboriginal peoples could be amended without prior consultation between legislators and Aboriginal peoples at a First Ministers Conference. Finally, having listed issues of mutual concern but being unable to agree on a definition of Aboriginal and treaty rights, the conference decided to meet at least three more times.
The amendments to the Constitution were passed by all provincial legislatures, except that of Quebec, and by the Parliament of Canada, and were proclaimed in force in June 1984. In that year, and again in 1985 and 1987, Canadians watched the dramatic First Ministers Conferences with Aboriginal leaders. In the full glare of the television lights and with the advantage of national media attention, these meetings generated public awareness of Aboriginal issues and focussed debate on the constitutional recognition of an Aboriginal right to self-government. One measure of the gains made by Aboriginal people in this period was the boldness of the report of the House of Commons Special Committee on Indian Self-Government in 1983, which endorsed an official recognition of Aboriginal rights to self-government.83 Although progress has been slow in the intervening years, the need for, and the public willingness to support, new departures in Aboriginal policy are clear.
The Constitution was only one of the areas in which Aboriginal status was debated in the decades after 1950. Judicial rulings on hunting and fishing rights and on land claims produced more than a little anger among Manitoba Indians as they seemingly won, then lost, then regained treaty-protected rights. Their claims to land under the treaty promises of a century ago similarly were delayed in government offices as if they were part of an administrative game. Particular resources, like wild rice, that had been part of Aboriginal life for centuries, also became subject to provincial regulations, and thus seemingly were taken out of Aboriginal control and placed in the hands of distant bureaucrats whose priorities might differ from those of the people who had once "owned" the natural product. We discuss these issues in detail in Chapter 5.
The Department of Indian Affairs managed its "wards" aggressively in the decades after World War II. Henceforth, it seemed, housing and economic development on the reserve, education in both the reserve and urban settings, the use of "Friendship Centres" to stimulate Aboriginal migration to the cities, and family-centred matters including income support and adoption, in particular, would require an army of civil servants, on the one hand, and Aboriginal acquiescence, on the other. Child justice and family welfare issues entered the public sphere during these decades. Family crises propelled children into courts and expanded the size of welfare agency case files. Too often, family members were separated. Too often, as the Manitoba people have learned in recent years, Aboriginal children were sent out of the community and out of the country. Too often, as is indicated by the commonplace observation that over half the children at the Manitoba Youth Centre are Aboriginal, children ended up in custody. Again, we will address some of these matters in Chapters 14 and 15. TOP
Aboriginal Dislocation TOP
The experience of the band at Tadoule Lake will illustrate how law and government administration can affect an Aboriginal group in our own time. This group of about 300 Dene people hunt and fish in the territory west of Churchill. Although their life is far from easy, the community members believe it is preferable to the alternatives they have seen. During our visit to this settlement in January 1989, we were greeted with wonderful hospitality, were driven around the area behind dog teams, and heard the moving and courageous story of the bands experience during Manitobas third justice regime.
The band had been living near the Hudsons Bay Companys Duck Lake trading post in 1956, trapping furs and hunting caribou in the region as it had done for years. Fur prices declined, the company decided to close the post, and the services that the band had received, from supplementary food to medical assistance and emergency radio transmissions, stopped. Government officials visited the band and informed it that, in the circumstances, it would have to move to Churchill. The band members said they did not want to move and asked the officials to assist them to stay in their traditional area. The officials cited the annual costs and declined. Several months later, without further discussion, airplanes arrived and all the people were taken to Churchill where, as elder Thomas Duck told our Inquiry, they were "just dumped out on the beach ... and people were living ... in tents and then finally they were hauled to another location by boat in fall ... [when] little shacks, 12 x 16 or 12 x 14 one room shacks" were erected for them. That was in 1956.
Fifteen years of social devastation followed. In the 1970s, a substantial proportion of the community decided to return to traditional life and eventually established the Tadoule Lake settlement. Band councillor Albert Thorassie told us that his people:
If the Tadoule Lake experience were unique, we in the South might be inclined to regret the matter and turn our attention to other issues. But it is not unique. Moose Lake, Chemawawin, Grand Rapids, South Indian Lake, Brochet all have equally compelling stories. The northern experience has been repeated time after time from 1869 to the present. Economic opportunity is assessed; development is launched; the environment is altered drastically. European-Canadians take resources and Aboriginal Canadians suffer the consequences.
Chief Esau Turner of the Swampy Cree Tribal Council described the Grand Rapids and Saskatchewan Power projects in exactly these terms when he addressed our Inquiry:
Manitobas Aboriginal people have known three justice regimes. During two of those regimes, they exercised control over their lives. In the third, this control was taken from them. It was done in a manner that clearly crossed the lines of fairness. We deplore the injustice which was done to Aboriginal people during this regime. By treating Aboriginal people in a condescending manner, by smothering their political and cultural expressions, as well as by failing to deal in a forthright and respectful manner with legitimate Aboriginal claims, Canadian government policy has done all Canadians a disservice. The loss of Aboriginal self-determination is obvious. The loss of identity and self-respect by the Aboriginal youth of our nation is lamentable.
These considerations must be kept in mind to fully appreciate the nature of the problems which we will now begin to address. TOP
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