21The Indian Act and the Great Council Fire

The 1867 British North America Act created the Dominion of Canada as a nation of only two founding peoples, English and French: Indigenous Nations were not consulted or recognized as partners in Confederation. The BNA Act affected all First Nations, including those of the Toronto area, who had governed themselves for millennia.

Responsibility for Indigenous peoples formally passed from the British Crown to the government of Canada. Rather than confirming their status as allies, the BNA Act assigned responsibility for “Indians and Lands reserved for Indians” to the newly created federal government. Status Indians (those who had signed treaties or were otherwise recognized on band lists) became its legal wards, a dependent status similar to that of children. The British Crown essentially abdicated its duty to protect its Indigenous treaty partners from the interests of settlers, which had been affirmed in the Royal Proclamation of 1763. Federal government ministries often combined Indigenous affairs with other pro-development departments with competing agendas and did not serve Indigenous people’s interests.

In a constitutional division of powers that bedevils Indigenous people to this day, the federal government was assigned responsibility for Indigenous peoples and their reserve lands, but the provinces were given jurisdiction over mining, agriculture, natural resources, and “Crown lands,” which were ceded Traditional Territories upon which Indigenous peoples retained hunting, fishing, and, arguably, other rights. This division greatly impacted Mississauga and Chippewa lands in south-central Ontario, and First Nations’ ability to exercise their rights to hunt and fish, as safeguarded in treaties.

Additional legislation increased government control over Indigenous lives and extended earlier legislation to the four provinces that constituted the new Dominion of Canada: Ontario, Quebec, Nova Scotia, and New Brunswick. The 1968 Indian Lands Act consolidated previous legislation such as the 1839 Crown Lands Act and transferred authority for the management of Indian lands to the federal government.¹ It defined who could be legally designated an “Indian” and “entitled to hold, use or enjoy the lands and other immoveable property” of a band. “Indians” were people of Indian blood who belonged to a “Tribe” and their descendants. Any woman who married an Indian acquired Indian status—even if she was non-Indigenous.²

They say Indian Affairs was put in place to look after the interests and look after the First Nations. But that never was the case. Their case was always to get rid of their Indian problem.

—Margaret Sault, Mississaugas of
the Credit³

Over the next decades, Indigenous peoples experienced a massive legal and political transformation in their relationship with the federal government: a unilateral “constitutional change,” in the words of historian John Milloy. Up until at least 1860, “Indian tribes were, de facto, self-governing. They had exclusive control over their population, land, and finances.” A military alliance had served Britain well from 1793 to the War of 1812, and even after that, Britain continued to engage in Indigenous treaty-making processes that recognized Indigenous peoples as self-governing. But from Confederation onward, the federal government moved away from its historical nation-to-nation relationship with self-governing Nations in alliance with the Crown. “Federal control of on-reserve governmental systems became the essence of Canadian-Indigenous constitutional relations.”⁴

These alarming developments galvanized Indigenous political leaders in Ontario—and from all the Indigenous communities near Toronto—to respond collectively.

Resisting Enfranchisement

The 1869 Gradual Enfranchisement Act revived and broadened the geographic scope of the 1857 Gradual Civilization Act.⁵ The government hoped to eliminate reserves as sites of government responsibility by promoting individual land tenure through individual “location tickets” and regular Canadian citizenship.⁶

Under the act, an Indigenous man could become a full citizen and owner of an allotment of land by renouncing his Indian status, including his right to live on the reserve and receive annuity payments and other “special privileges.” No longer a ward of the government, he’d acquire all the rights and privileges of Canadian citizenship, including the vote. The legislation reflected Victorian patriarchal attitudes: Indigenous women married to men who gave up their Indian status (or who had never had that status) automatically lost their status and their right to live on a reserve (as did all their descendants). The act confirmed that an Indigenous person couldn’t be a Canadian citizen and Status Indian. It limited annuity payments to those with at least “one-quarter” Indian blood, and it stipulated that inheritance passed through the male line only, regardless of Indigenous custom. (Among the Haudenosaunee, for example, Clan membership is passed down through the female line.)

In a further violation of Indigenous self-determination, the 1869 act gave the government the power to impose elected governance on reserves on the order of the governor general. It also restricted the legislative powers of the elected Chief and “band” council. Band councils were limited to quasi-municipal responsibilities such as creating and maintaining schools, public buildings, roads, bridges, ditches and fences and framing rules on public health, public behaviour (such as drunkenness), or cattle trespassing. Although Hereditary or Life Chiefs were allowed to retain their position until they died or resigned, the government could remove them for “dishonesty, intemperance, immorality, or incompetency,” a broad provision that gave the Department of Indian Affairs the power to replace troublesome traditional leaders.⁷ In a departure from the 1857 Gradual Civilization Act, enfranchisement decisions were now made solely by the governor-general-in-council on the recommendation of the superintendent-general of Indian Affairs. Band consent was no longer required. The Department of Indian Affairs was also given exclusive jurisdiction over valuable natural resources on reserves.

By these means, the government hoped to solve the department’s financial problems and undermine Indigenous peoples’ resistance to government appropriation of on-reserve resources such as timber.⁸

The Grand General Council of Ontario

The 1869 Enfranchisement Act triggered “an immediate, coordinated, and broad-based response.”⁹ Meeting at a Grand Council called by Six Nations in 1870, Indigenous Nations founded the Grand General Indian Council of Ontario, Canada’s first “pan-Indigenous” political organization. The inaugural meeting attracted nearly fifty Haudenosaunee delegates; thirty-six Anishinaabe delegates from thirteen communities, including Rama, Scugog Island, New Credit, Beausoleil (which moved to Christian Island in 1856), and Georgina Island; and representatives from Munsee-Delaware communities.

The Council minutes were recorded in English, but most business was conducted in Indigenous languages, with considerable translation going on between Haudenosaunee, Lenape, and Anishinaabe delegates. The attendees agreed to meet every two years on different reserves to review and coordinate responses to proposed and already-enacted government legislation and to counter government incursions on their sovereignty. They affirmed their own historical forms of governance and sought to define their relationship with Canada and its laws on their own terms.

The 1870 gathering built on inter-Nation gatherings held in 1840 and 1858 in response to government actions. It rekindled and regularized the process of meeting in Council and drew on the long-standing if sometimes challenging treaty relationship between the Anishinaabek and the Haudenosaunee.¹⁰ There were family and political connections among the delegates at all three councils, and some delegates from previous councils continued to play key roles, such as John Smoke Johnson, the Mohawk Pine Tree Chief.

Johnson opened the 1870 Council with a reading of historic Wampum Belts. He explained that the meeting was grounded in Indigenous law and required the reactivation of nation-to-nation alliances among First Nations and with the Crown. He referred to the long history of alliance between the Haudenosaunee and Anishinaabek represented in the Dish with One Spoon and reminded delegates that “the policy of their forefathers was, when they were unanimous, they were stronger.”¹¹ Johnson reminded delegates that the basis of the Covenant Chain alliance with the British had been noninterference in each other’s internal affairs—a principle that went back to the early seventeenth-century Two Row Wampum agreement with the Dutch.

Delegates agreed that Wampum Belts should be present at all future gatherings as an expression of sovereignty, but cultural change was already apparent. A Christianized, Western-educated Anishinaabe Chief questioned the need for the lengthy Wampum readings and the opening Condolence Ceremony.¹²

Two months before the Grand Council, a delegation of Six Nations Chiefs had visited Ottawa to meet with Joseph Howe, who was the secretary of state and superintendent-general of Indian Affairs. They reminded him of the government’s duty as their ally and brought out and explained the Wampum Belts to him.

Johnson, who had been one of the delegates to Ottawa, reported at the 1870 Council: “Mr. Howe asked them, what parts of the Indian Acts they objected to, they replied, the whole Act, which, they were not consulted in reference to it. Mr. Howe, on hearing the Act not agreeable to the Six Nations, asked, if they did not want any laws for their guidance and government, to which they answered, The Six Nations had already rules and regulations under which they had ever acted.”¹³

The Council reviewed the 1869 Enfranchisement Act section by section and unanimously rejected almost all its provisions. Notably, the one exception was a clause dealing with liquor restrictions on reserve, which the delegates voted to keep. Delegates rejected the authority of the superintendent-general to grant location tickets and control inheritance; the one-quarter blood quantum requirement for annuity payments; the removal of women’s Indian status if they married non-band members; and the imposition of elections.¹⁴ In their petition to the governor general, the delegates clearly articulated their vision for government conduct: “The Council demands that proper consultation with the Indian people should be had, when any Act of Parliament is proposed which may affect them, and not left to subordinates who have no true knowledge of Indian advancements or requirements.”¹⁵

Delegates called for restoration of their resource rights: exemption from game and fishery laws and band control over timber. They voted to go to the House of Commons to “press for justice when the Indian Bill was being read” and for “a liberal provision . . . to allow four natives in the House of Commons in Ottawa to represent the different tribes.”¹⁶ As historian Chandra Murdoch comments, “These motions demonstrate a radically different imaginary of what governance should look like in relation to the settler government than had been presented in the Act of 1869. They demanded that their sovereignty over their own communities be recognized, as it had been through historic alliance relationships.”¹⁷

Consulting or Co-opting Indigenous Leadership

Indigenous resistance forced the government to consult with selected Indigenous leaders between 1869 and 1885 to make its legislation more palatable to local communities.¹⁸ They chose leaders sympathetic to the idea of enfranchisement and influential at the Grand General Council. Through this dialogue, certain Anishinaabe and Haudenosaunee leaders expressed their opinions on what the Crown-Indigenous relationship should look like. The government also learned of community responses to their laws through petitions, correspondence, and Council minutes.

For example, David Laird, the superintendent-general of Indian Affairs, invited some members of the Grand General Council to consult on the Indian Act before it was passed in 1876. Prime Minister Sir John A. Macdonald asked Dr. Peter Edmond Jones, the son of Mississauga missionary Peter Jones, to rewrite it—though he disregarded most of Jones’ suggestions.

The government also asked Oronhyatehka, also known as Dr. Peter Martin and another Grand Council member, for feedback. Oronhyatehka didn’t represent a specific community, but he was the grandson of Chief George Martin and nephew of Chief John Smoke Johnson, and he had served as chairman of the Grand General Council, held at Sarnia in 1872. Oronhyatekha sent the Council’s suggested amendments to Laird and commented: “When last in Ottawa, I had the honour to mention the subject in conversation with you, and you were good enough to request me to put the subject matter in writing.”¹⁹

The 1876 Indian Act

Despite the Grand Council’s efforts, sections of the 1869 act reappeared in the 1876 Indian Act, although the Council’s recommendations on two important issues, locations and enfranchisement, were adopted. The Indian Act consolidated all previous legislation relating to Indigenous peoples and through numerous amendments extended government control over almost all aspects of Indigenous peoples’ lives across Canada, including property, resources, governance, relationships, and education. As Murdoch notes, it “inaugurated a deeply repressive and enduring nexus of law that has since affected generation after generation of Indigenous people in Canada.”²⁰

The government confirmed its power to define who was a Status Indian (who could live on a reserve and receive annuities and who was forced to leave). While few men chose to enfranchise, generations of Indigenous women who married non-Indigenous men or Non-Status Indigenous men lost their status, as did their children and descendants. The number of Indigenous people entitled to treaty rights dwindled along with their political clout.

Through the act and its numerous subsequent amendments, the government was given the power to remove traditional governments and impose Indian agent–controlled elected band councils, to ban traditional spiritual ceremonies, to control Indigenous education, and to force children into church-run, state-funded schools. Indian agents gained increased powers to control day-to-day life on a reserve, including the movement of people, the sale of crops, and inheritance. Through these policies, which simultaneously segregated Indigenous peoples and attempted to assimilate them, Canada aimed to “peacefully” eradicate First Nations and, with them, treaty obligations or claims to land. As Duncan Campbell Scott, the deputy superintendent-general of Indian affairs, would infamously articulate in 1920, government policy would “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.”²¹

The Indian Act greatly harmed Indigenous peoples and Nations and diminished Canadians’ understanding of themselves as inheritors of ongoing treaty responsibilities. It reflected an era of hardening racial prejudice against Indigenous peoples. As the British Empire faced revolts and “rebellions” across the globe, so-called scientific racism claimed that the different “races” had significant biological differences arising from separate creations by God and that the British nation and the white race were superior to all others. Scientific racism justified coercive government policies, which generations of Indigenous peoples were forced to endure. Although some of the Indian Act’s most draconian sections were repealed in 1951, the Indian Act still constrains many aspects of Indigenous life and governance.

The Grand General Council’s Response

Surprisingly, the Grand General Council met at Saugeen in July 1876 and formally approved the Indian Act.²² This Council was attended by Anishinaabe delegates only, and they expressed differing perspectives on the aims and usefulness of the law, its impact on their relationship with the Crown, and how it accorded with the future they envisaged for their communities. The Council emphasized that participating communities had the autonomy to engage with the law to suit their needs.

Chandra Murdoch suggests that Anishinaabe leaders approved the act because they believed they had gained new powers. Two years previously, the Grand Council had endorsed a proposal by Dr. Peter Edmund Jones that local bands should control enfranchisement decisions and that enfranchisees should retain “their rights to participate in the annuities and interest money, and rents and councils of the Tribe, band or body to which they belong.”²³

As Murdoch points out, “Jones’ emphasis on maintaining annuity payments and participation in the political life of the Band suggest a very different vision than the assimilationist goals of the state.” Delegates saw enfranchisement as “gaining a right to participate in settler government and society without losing their connection to, or authority over . . . their own communities. Their vision for increased political participation, while retaining and strengthening their own communities, can perhaps best be understood as akin to an idea of ‘dual citizenship.’ Rather than having to lose their own authority and communities through subjecthood and incorporation into the Canadian body politic, this would be retained, and their interest in enfranchisement was to further advance community prosperity as they understood this.”²⁴

Jones’ proposals for the continuation of annuities and other benefits for enfranchised men were not included in the Indian Act. But band approval of enfranchisement applications was—a significant improvement over the 1869 law. It appears that many delegates accepted less palatable sections of the Indian Act because the government had partially accepted the change to the enfranchisement legislation advocated for at the 1874 Grand Council. This was interpreted by many leaders as proof that the government could be persuaded to alter legislation in the future through input presented at the Grand General Council.

Christianity, particularly Methodism, was also a factor in the Council’s response. Christian leaders had previously influenced British and settler laws by engaging with government officials, and several, such as Peter Jones, had gained access to the highest levels of British and settler power. This appeared to be an effective strategy. Anishinaabe leaders connected to the Methodist Church, going back to the efforts of Peter Jones and John Sunday in the 1830s, had been active in efforts to secure land title to reserves. As Murdoch notes, the older generation of Anishinaabek had been accepted as equals within the Methodist Church, and their sons had been “educated in the institutions brought into being in part by their fathers’ efforts.”²⁵

Many prominent voices within the Grand General Council had received Christian educations and engaged with settler politics through missionary networks. They had witnessed great changes in their communities during their lifetimes and had become leaders in their communities because of their ability to navigate both worlds. Several, such as Dr. Peter Edmund Jones, who became the first Indigenous doctor in Canada, served as models of successful adaptation to new social realities. These leaders supported the government project of Christianization, residential schooling (prior to the large-scale expansion of coercive state and church-run schools), and assimilation because, in their view, it had helped them and their communities.²⁶ Although they had firsthand experience of the negative impacts of racism and expanding settlement, these leaders were also influenced by British concepts of property and gendered and patriarchal aspects of Victorian Christianity.²⁷ They sought to protect their communities’ interests, as they understood them, within the worldview they had accepted or inherited.

Notably, the Methodist community at the Credit River had adopted ideas of electoral governance through Peter Jones’ written legal code of 1830, and support for elections on reserves was later taken up by the Methodist Conference.²⁸ Opposition to enfranchisement—and Anishinaabe support for it—was a key reason the Haudenosaunee did not attend some Grand General Councils and withdrew permanently in 1884. The Six Nations of the Grand River maintained a consistent position, first articulated at the 1858 and 1870 Councils: they did not want enfranchisement because it threatened their sovereignty as a Nation.

According to Mohawk historian Susan Hill, the Six Nations were in turmoil following the loss of Haldimand Tract land in the 1840s; families were “dealing with their third (or more) removal in less than seventy years.”²⁹ The Confederacy Council was determined to protect their remaining lands. Asserting their right to self-determination, the Council developed “policies and procedures to address land issues in key areas including inheritance, marriage disputes, annuity payments, adoption, enfranchisement, band transfers, leases and sales, ‘national parks,’ and communal property.”³⁰ These were all areas of jurisdiction that the Indian Act sought to control. The Council considered enfranchisement a serious threat to their lands and governance.

Most Haudenosaunee leaders shared this view, but it was not unanimous. According to historian SaIly Weaver, “reformer” and “conservative” factions of the Grand River Council could not agree on an approach to government legislation. For example, reformers such as Oronhyatekha were supportive or neutral in their assessment of the 1869 enfranchisement provisions, while the Confederacy Chiefs rejected them outright.³¹ Although Oronhyatekha was willing to consider enfranchisement (and applied for enfranchisement himself, in 1872, though did not go through with it), he emphasized that such policies should not be imposed: “Should you recommend to the Government in any further Act to adopt any of the suggestions of the Indians such provisions would certainly be more likely to be carried out into practical effect by them as having been recommended by the Indians themselves.”³²

In 1876, Haudenosaunee Chiefs presented a petition to the governor general against the Grand General Council’s approval of the Indian Act; they protested the superintendent-generals’ powers over their “lands, moneys, and properties without first obtaining the consent of the chiefs of the Six Nations.” They asserted that the Indian Act would “in time deprive [them] of [their] liberties, rights and privileges which we now enjoy under the Treaty between Great Britain and the Six Nations Indians.”³³

Women’s Rights and the Grand General Council

When the Grand General Council first discussed the proposed legislation, the all-male delegates rejected women losing their status as “unjust in depriving a woman of her birthright.” Six Nations opposed the principle of patrilineal descent because it broke with Haudenosaunee law.³⁴

The Grand Council, however, reversed its position and approved the proposed status legislation in 1874 when most Six Nations delegates were not in attendance. The Anishinaabe delegates were focused on other enfranchisement issues and may not have wanted to jeopardize reaching a consensus. As historian Norman Shields points out, “There is a measure of irony in that fact given that most people who surrendered their status over the following one hundred years did so involuntarily through the operation of section 6 [women marrying out]” and almost no Indigenous men chose to enfranchise.³⁵ Peggy Blair, a lawyer, noted in 2005, “Between 1958 and 1968 alone, more than 100,000 women and children lost their Indian status as a result of these provisions.”³⁶ The repercussions of this loss of status over more than a century are still widely felt today, even though status has been restored for some.³⁷

When they did attend the Council, Haudenosaunee delegates consistently opposed the loss of status. Anishinaabe delegates were more ambivalent, in part because patrilineal descent was the norm for passing on Clan identity in their societies. According to Shields, Anishinaabe leaders were concerned about losing more land if Indigenous women married white men or “non-treaty Indians,” such as Potawatomi men from the United States who had neither annuities nor a land base in Canada.³⁸

The 1876 Indian Act transformed the political, social, and material well-being of Indigenous women by excluding them from band governance and instituting unequal marriage and property laws. Yet despite their legal marginalization, Indigenous women still played a central role in maintaining Indigenous nationhood. They developed strategies to protect their homes and families and maintain their livelihoods, sometimes by acting against the Indian Act, sometimes by claiming rights through its provisions. They hired lawyers and appealed to Indian Affairs to overturn unjust decisions by band councils and Indian agents alike.³⁹

The Grand General Council and the Indian Act after 1876

The Indian Act was amended almost yearly, and the Grand Council was kept busy responding to its many changes. Because Indigenous leaders either opposed the law or tried to alter it to better respond to their communities’ needs, and Indian agents struggled to impose unpopular laws on reserves, the act was continually strengthened. In fact, subsequent legislation and the increasingly repressive means of enforcement evolved through a series of jurisdictional struggles between Ottawa, Indian agents on the ground, and Indigenous leaders.⁴⁰ But despite intense government coercion, many aspects of self-governance continued.

The Grand General Council debated the 1884 Indian Advancement Act, which extended government control over band governance, and the 1885 Franchise Act, which gave Indigenous men the right to vote federally (until it was repealed in 1898). Dr. Peter Edmund Jones was especially prominent in attempting to provide constructive feedback to the government. Attendees expressed a great diversity of perspectives on the political issues of the day, and some communities rejected the Council’s decisions or developed alternative forms of political organization, such as the United Bands movement.⁴¹

Most of the Grand General Council’s recommendations after 1876 were ignored.⁴² Nonetheless, the Councils provided a forum for communities to share their views and come to a broader understanding of the implications of federal legislation. Nations built and maintained social and political relationships beyond their isolated communities and honed leadership and consensus-building skills. Ultimately, as Chandra Murdoch argues, “the federal government was simply not willing to respect these leaders’ insistences that they knew what was best for their communities under the extreme paternalism of the law.”⁴³

In the twentieth century, the Grand General Council eventually evolved into the Union of Ontario Indians, which became the administrative arm of the Anishinabek Nation, a reconstituted government for thirty-nine Anishinaabe First Nations, including the Chippewas of Rama, Chippewas of Georgina Island, Beausoleil First Nation, and Mississaugas of Scugog Island. The same principle of organization—a Council of Chiefs—is evident in the Assembly of First Nations, a national advocacy organization representing more than six hundred First Nations.

Union of Ontario Indians—my dad helped start that. He was honoured for it one night in Rama. They had a . . . They took us all up, the whole family, and they honoured him for being one of the members that started the Union of Ontario Indians.

—Albert Big Canoe, Chippewas of Georgina Island⁴⁴

After withdrawing from the Grand General Council, the Six Nations deepened ties with other Haudenosaunee communities, such as Kahnawà:ke, Akwesasne, and Tyendinaga. They convened their own Grand Councils in support of hereditary governance and against the Indian Act system. The Six Nations also pressed for recognition of their sovereignty through other channels, such as educating settlers about Haudenosaunee laws and their system of government. Chief John Smoke Johnson worked with anthropologist Horatio Hale to record Haudenosaunee laws. Seth Newhouse (a delegate to the Grand General Council in 1882) and John A. Gibson prepared a written version of the Great Law of Peace.⁴⁵ As their relationship with the federal government deteriorated, the Haudenosaunee directed petitions and diplomacy towards the governor general as the true representative of the British Crown.⁴⁶

In 1923, the Haudenosaunee attempted to have their sovereignty recognized internationally by appealing to the League of Nations, the precursor of the United Nations, but were blocked by Great Britain (and Canada).⁴⁷ The following year, the government coercively installed a band council against the wishes of a significant segment of the community and the Hereditary Chiefs, though elective governance was favoured by the progressive faction. Despite this, the Hereditary Council of the Haudenosaunee Confederacy persists to this day, along with the band council at Six Nations.

The biggest thing I would like to see happen is the split between the traditional government and the elective form of government to be healed, because that’s a negative on all of our people. That’s a big challenge. It’s a very big challenge. Our generation and three generations before us have inherited that divide. It’s not by our doing, but we’ve got to step up and take care of it. That’s an internal issue. But, to me, that’s one of the biggest challenges we’re going to face.

—Phil Monture, Six Nations of the Grand River⁴⁸

In assessing and proposing changes to legislation, the Grand General Council of Ontario (and those who left it) asserted and modelled what the Canadian Supreme Court has partially recognized as a “duty to consult and accommodate”—something all First Nations in the Toronto area still calling for. Articulated more fully, the principle is the right to free, prior, and informed consent—that is, Indigenous peoples can accept or reject projects affecting them or their territories. This right is enshrined, along with the more general right of self-determination, in the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly in 2007. The declaration was officially supported without qualification by Canada in 2016, and implementing legislation was passed in 2021.

We want to get out of the Indian Act and really become self-determined of our destiny as we move forward.

—Phil Monture, Six Nations of the Grand River⁴⁹