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Canadian Legal Classifications and First Nations

Central to Canadian Indian policy is, and always has been, the role of classification — who is considered an “Indian” and who is not. In Canada “racial” definition was a legal necessity for two main reasons: first, the peoples of the First Nations were not granted the rights and freedoms of British citizens under the law; and, second, laws surrounding treaties, reserves, and land use required a legal means of differentiating the First Nations peoples from the colonizing Europeans. A new legal category of “Indian” was created to meet this dual need.

In this regard Canadian racial history is dissimilar to that of the United States. The infamous “drop of blood” method of classification of African-American racial status in the United States was much too broad to apply to the Canadian First Nations, particularly because of governmental treaty obligations. Consequently the Canadian state developed a much narrower classification method.

The term “Indian” was defined as a legal classification in 1850 in An Act for the Better Protection of the Lands and Property of the Indians in Lower Canada (1850, c.42, s.5). The Act explained that various “classes of persons are and shall be considered” to be “Indians”:

First. –All persons of Indian blood, reputed to belong to the particular Body or Tribe of Indians interested in such lands, and their descendants. Secondly. –All persons intermarried with any such Indians and residing amongst them, and the descendants of all such persons. Thirdly. –All persons residing among such Indians, whose parents on either side were or are Indians of such Body of Tribe, or entitled to be considered as such: And Fourthly. –All persons adopted in infancy by any such Indians, and residing in the Village or upon the lands of such Tribe or Body of Indians. (Ibid.: s.5)

Under this Act the Indian legal classification did not yet rely only relied upon a patrilineal concept of race — a point which would arise in the Indian Act 1876 — but did incorporate, specific social elements, such as adoption and later what was described as “the Indian mode of life” (Indian Act 1876, c.18). From 1850 forward, the classification of “Indian” changed along with acts of parliament. Indians occupied a separate and mutually exclusive classification from others within Canadian society — a condition perhaps best illustrated in the Indian Act of 1876, which states that the legal classification of a “person” is “an individual other than an Indian” (c.18, s.10). Ultimately the Indian Act of 1876 would divide individuals into three separate categories: “Indians,” “Non-Treaty Indians,” and “People,” all with varying levels of rights under the law.

As Robert Campbell (2008) illustrates in his excellent paper on indigenous alcohol regulation in Canada the history of First Nations legal classification is closely tied to liquor policy, and it is a governmental history that passes through distinct periods of policy motivation between the years 1777 and 1951. In an initial period of colonial reliance upon the fur trade and military alliance, regulatory policy was targeted at the promotion of stability; a second period of colonization emphasizing First Nations “civilization” promoted the expulsion of these populations from arable land; and, finally, came the development of the reserve system and the cultural infusion of agriculture and Christianity. Throughout this history key differences existed between the classification of “Indian” and others in “Canada”: the right to vote, the requirement to pay taxes, and legal access to and possession of alcohol (not to mention the complex combinations of these three factors at key junctures). Although Canada did briefly pass through piecemeal periods of locally, provincially, and federally legislated prohibition, Indian and Non-Treaty Indian socio-legal classifications have, for the most part, remained distinct from the liquor histories of those not identified under those classifications.

For an excellent analysis of alcohol and First Nations legal history see Robert Campbell (2008) Making Sober Citizens: The Legacy of Indigenous Alcohol Regulation in Canada, 1777-1985

<< Canadian Legal Classifications and First Nations       
Interdiction and the “Indian List”

Prototypical Classification
The LCBO and the Classification of Indians
First Nations and Alcohol 1939–75
The Impact of Prototypical Classification

The Impact of the Indian/Interdiction Classification >>