A Sovereignty of Aboriginal Statusthe Legal Recognition of The Individual and The Group in The Apparent Twilight

4
A History of Aboriginal Statusthe Legal

Recognition of the Individual and the Group
in the Apparent Twilight
Overview
By the end of the nineteenth century, the aboriginal peoples of Canada, Australia, and
New Zealand were contained within specific statutory regimes. In America that juridi-
cal enclosure was achieved by the judicial narrowing of the doctrine of inherent sover-
eignty, paving the way for invasive Congressional legislation under the newborn
plenary power doctrine. This chapter looks at how national laws recognized the abo-
riginal polity and its members through the defining use of status. The term status has
been used here to describe the manner in which the national legal systems recognized
the existence of aboriginal persons and groups. It refers to the legal status that national
laws attached to individuals and groups on the basis of their aboriginality. It may be
contrasted with the term identity, which describes the actual, extra-legal, self-constituting
practices of aboriginal people.1 Status is a legal condition, identity a factual one. How,
it will be asked, did the laws in these jurisdictions recognize the aboriginal polity and
individual? Did the law provide means to recognize and give lawful authority to native
peoples customary forms of political organization? What legal approaches were taken
over the years to individual and group status? To what extent was legal status harnessed
to the practice of aboriginal identity? Conversely, how did law attempt to mould and
reform aboriginal identity?
The nature of these questions shows that as the nineteenth century closed, all
jurisdictions had reached a stage when aboriginal peoples physical submission to the
settler-state was virtually complete. This phase has been described as the apparent
1
Sally Weaver distinguishes between public and private ethnicity: Public ethnicity is rationalised on
the basis of how the nation-state wishes to deal with (or ignore) its aboriginal minorities. Whereas private
ethnicity [considers] the being, or the present condition of aboriginal groups, public ethnicity stresses the
becoming, the future desired condition of aboriginal minorities which the nation-state has determined,
and the processes (eg of civilising, integrating, or self-managing) whereby this eventual condition is to be
achieved . . . (Struggles of the Nation-state to Define Aboriginal Ethnicity: Canada and Australia in Gold
(ed), Minorities and Mother Country Imagery (Newfoundland: St Johns Newfoundland Memorial
University, 1984)). Weavers notion of public ethnicity is similar to but broader than my notion of status, in
as much as hers accommodates extra-legal recognition of aboriginal groups and individuals, such as
(non-legal) administrative practices.
Aboriginal Societies and the Common Law. P.G. McHugh.

Oxford University Press 2004. Published 2004 by Oxford University Press.
216 Aboriginal Societies and the Common Law
twilight of tribalism,2 or, as one chief sadly told a Canadian court, a time of great
cultural downfall.3 The legal encirclement of aboriginal peoples at the close of the
nineteenth century reflected their besieged condition. Laws of status set out the basis
for legal recognition of the aboriginal group and individual. These laws asserted the
capacity of the settler-state to constitute the collective and individual aboriginal self.
Law now purported to define aboriginal being.
In this twilight period protection and assimilation were the policy aims of the
settler-state. Protection, as a goal, involved the insulation (and, not unintentionally,
isolation) of the aboriginal population from the general community, this normally
being viewed as a temporary measure until they were ready for assimilation into the
general mass. Protection and assimilation were thus linked, although the orientation
towards either approach varied historically and from jurisdiction to jurisdiction. In
the United States, once the Dawes Act had pulverized Indian communities and sig-
nificantly compromised the earlier promise of measured separatism,4 a policy mix-
ture of assimilation and protection applied until the Indian Reorganisation Act (IRA)
(1934). The experience of Native American tribes in that period was very much a
product of location, more aggressive policies of assimilation being applied to those
nearest white settlement and living on land that was wanted for development. From
the late nineteenth century, the patterns of lawmaking and policy in Canada and
Australia also tended towards protection. These followed the American one in that the
settler-state assumed complete and overweening control of everyday aboriginal life
through officials holding enormous discretionary power. This literal as well as legal
enclosure was permitted by the large continental land masses that allowed aboriginal
peoples to be isolated in territorial enclaves reserved for them, often in forbidding
(but later discovered as mineral-rich) regions. There they all but disappeared from
white view, the sad squalor of the few ghetto-dwelling urban aboriginals both the
exception and a justification for that approach. Protection effectively amounted to an
out of sight, out of mind policy of neglect. Where aboriginal peoples lived in closer
proximity to white populations, their presence required a response and that inevitably
came as aggressively pursued assimilation. New Zealand was the best example of that
since its island geography precluded institutionalized forgetfulness. But there were
also regions of North America where similar proximity occurred, and where equally
aggressive policies of assimilation were applied. The nearer aboriginal people got to
white people, the more the latter strove to make them an image of themselves, though
poorer and servile.
Yet the historical symmetries ran deeper than that. During the nineteenth century a
new character appeared in the legal encounter. This new character white colonialists
termed the half-breed, a term regarded as offensive today. Although hardly a novel phe-
nomenon, it was only at the end of the nineteenth century that miscegenation became
regarded in some jurisdictions (the un-federated Australian colonies, most especially) as
requiring legal response. Certainly the offspring of mixed race union were regarded
as problematic, and their status as aboriginal was far from automatic. All children
2
Charles Wilkinson, The American Indian, Time and the Law, 37.
3 4
R v P (J A) 1991 6 CR (4th) 126. Wilkinson, Time and the Law, 1922.
Aboriginal StatusLegal Recognition of Individual and Group 217
who have read Mark Twain will be familiar with the popular nineteenth-century
depiction of the half-breed as a feral being, neither noble savage nor noble settler
but sly and duplicitous, combining the worst of both worlds and mischievously
negotiating their shadowy fringes. The depiction was a monstrous one but it echoed
more than faintly through much of the lawmaking in the late nineteenth and early
twentieth century.
In New Zealand the half-caste Maori was generally included in the statutory
definition of a native. However the other jurisdictions, Australia and Canada espe-
cially, were not so willing to include these persons in the legally corralled and
protected aboriginal category. In America the legal recognition of the tribe acted as a
means of accommodating the mixed-blood person, but in Australia and Canada no
such possibility existed. Even in America, however, the tribes themselves often set
quantum percentages in their membership codes to exclude those bleached with too
much white blood. Thus whilst policies of (over-) protection were applied to aborigi-
nal peoples, the mixed-blood was sentenced legally to the margins where policies of
assimilation were applied aggressively. In North America and Australia those policies
reached their notorious nadir during the first half of the twentieth century with the
ostensibly lawful but forced removal of mixed-race children from their aboriginal
mothers for rearing and education in the white lifestyle.
De-tribalization, the creation of an enfranchised, culturally-neutral individual owning
property and voting in the ordinary electorate, was always the end-goal of assimilation.
As a policy the drift of nineteenth-century liberalism justified it through the belief in
the capacity of the individual to reform. In the mid-nineteenth century that ostensible
justification joined with the new scientific racialism and new theories of social evolu-
tion, as well as legal positivisms assertion of laws capacity to shape and regulate con-
duct. This concatenation of influences mulched into an undoubtedly vulgarized
rationale in the minds of white lawmakers. Assimilation became a desideratum and a
self-serving justification for more pragmatic ends. It was a goal that licensed the sus-
tained attack on tribalism but it was never a coherent programme (except, perhaps, in
its ulterior design on tribal land). That would have required resources that the settler-
state was not minded to pour into the management of aboriginal affairs once their
actual subjection was achieved and land secured.
As a policy goal, assimilation aspired to a culturally undifferentiated population, yet
its vision was unavoidably anglocentric. It contemplated the aboriginal individuals
own re-enactment of the history of the settler-state, the achievement of political matu-
rity becoming the natural constitutional destiny for each person walking in the path of
the state itself. In that sense, assimilation sought also to put aboriginal peoples inside
an Anglo-American narrative and history that was both liberal and Whig in design.
The persistence of aboriginal forms of identity and lifestylegroup and individual
was therefore seen as impeding the proper, historically-predestined progression of this
civilizing momentum. Yet as a goal assimilation was concerned with more than the
individuals political presence in the Anglo-settler state. It was perceived as a form of
secular redemption. It sprang from an endemic and evangelical belief in the perfection
of the representative principle, individual property-ownership, and the rule of law,
these validating and celebrating the political and constitutional history driving the
settler-state itself. It was for that reason that the policy held such a powerful grip on
aboriginal law and policy from the late nineteenth and through most of the twentieth
century. Ultimately the policy of assimilation was tied to the settler-states own
unshakeable image of itself.
From the late nineteenth century, then, the settler-state used its laws as a means of
dissolving tribalism and, more especially, to open access to their land. Law was a means
of undermining the authority of the tribal nation. The customary land-based polity
the aboriginal nationwas superseded by new juridical formations, such as the Indian
Act band (Canada), and tenancy-in-common (New Zealand), or ignored (Australia).
The integrity of the American tribe on its own Indian country was legally adulterated
by allotment and checkerboard jurisdiction before reconstitution (for most) under the
Indian Reorganisation Act (1934). Central to the legal dissolution of tribalism were
rules of individual status. These defined who at law qualified as an aboriginal. They
operated with ostensible neutrality through reference to criteria such as blood percentage
or the problematic notion of race. Through its laws the settler-state asserted its capac-
ity to define aboriginal status or membership, the most fundamental processes in a
polity. By so doing it signalled its obvious belief that those politiesthe tribal
nationswere living on borrowed time.
This interjection of law into what had been customary identity practices gener-
ated tension between status (a legal condition) and identity (a cultural process).
Once the settler-state began using law in this manner towards the end of the nine-
teenth century, interplay started between law as an instrument of cultural transfor-
mation and the actual, non-compliant behaviour of aboriginal people resolutely
clinging to their customary means of identity. A dialectic developed between a con-
stitutional ideal imposed on the aboriginal individual and actual ethnic practice.
Frequently the problematic mixed-blood was at the centre of that tussle. The rebel-
lion of the Red River Mtis under Louis Riel (1880) was a forceful demonstration,
but there were many other histories where the mixed-blood element was pivotal,
such as the experience of the Five Civilized Tribes in Oklahoma. Law and tribal prac-
tice interacted, each affecting the other. The relationship was as much symbiotic as
it was antagonistic.
During the early 1970s, midst considerable aboriginal unrest and militancy, the age
of assimilation turned into the era of self-determination. Aboriginal peoples mobi-
lized politically to challenge the goals of the protective and assimilationist liberal dem-
ocratic state. The 1970s were the years of aboriginal anger. The decade saw movement
from a state agenda of assimilation into a more aboriginal-driven model of group
autonomy. The transition began mostly as a rhetorical one denouncing the aggressive
post-war policies of assimilation. At that time self-determination was articulated as a
policy-ideal though still under-accommodated in law. By the 1990s it was finding
more practical and thoroughgoing (though far from problem-free) expression. This
chapter looks at the legal history of the policies of assimilation, particularly in the piv-
otal area of (group and individual) status, in the twilight century. It opens with a
general account of the enduring dialectic between status and identity. The next chap-
ter looks at the emergence of international legal norms that also began influencing
national lawmaking and policy directions especially after World War II. The final three
chapters look at the legalism that emerged from the years of anger as aboriginal claims
were legitimized and fed into the legal system in the era of self-determination.
***
1. Status and identity: themes of the twilight century and the era of
self-determination
The ascription of aboriginal status to an individual or group has been an important
legal question in a variety of contexts, historical and contemporary. The difficulties
which arise stem from the fact that identity is as much an ethnological and political
as legal question. The question who is an aboriginal? defies an abstract response. It is
vital to know the context and reasons for posing such a question. As one writer has
observed, the question of peoples identity will forever be befuddling if detached from
the purpose for which the question is being asked.5 For this reason a distinction has
been drawn between a purely legal processthe eligibility for and character of the legal
status given a particular individual or groupand the de facto processes of identity
within aboriginal communities.
Native peoples have always followed their own customary means of identity,
notwithstanding the interposition of Anglo laws of status. Indeed the historic conti-
nuity of those practices is at the core of their aboriginality. Those identity-practices are
inherently dynamic and open-textured and have been significantly affected by the
experience of colonialism. By its very nature membership of the group and its consti-
tution will be in a state of perpetual movement. Because this phenomenon is practised
through time, it is also (one may add) an historical one: the groups membership prac-
tices will have a history. For aboriginal individuals and groups, identity has never been
a closed and fixed matter but a changing, vital process.6 Law with its formalistic
attempts to reduce such matters to fixed, predictable rules has tended towards a static
view of how individuals and groups identify themselves. Further, laws intervention has
often been associated with the attempt to remove that self-enfranchising capacity from
the individual and the group. Certainly one historic function of status has been to
enclose by legal categorization, to see aboriginal status as a kind of temporary juridical
holding-pen, pending eventual assimilation. It has also been used negatively to cull
individualsthe mixed-bloodfrom membership of the group. Liberal democracy
traditionally saw the particular legal protection of special classes of individualssuch
as the aboriginalas problematic and contemplated their disappearance. This liberal
democratic conception of the national polity was especially strong after World War II
as the developments in international law and national aboriginal policy from that time
showed.
Despite their totalizing ambition, the laws of status never became a comprehensive
or complete definition of aboriginality, for there remained a huge extra-legal domain
5
Martha Minow, Identities (1991) 3 Yale J Law and Humanities 97, 116.
6
An excellent example of the dynamics of aboriginal identity-formation changing during the nineteenth
century (in the colonialist context) is Angela Ballaras Iwi: the dynamics of Maori tribal organisation from
c 1769 to c 1945 (Wellington: Victoria University Press, 1998).
of customary identity-practices. Yet aboriginal resistance to legal categorization and

re-constitution did not always involve outright rejection. As often as not, the aborigi-
nal response involved a dynamic interaction that absorbed into their actual practices
sometimes controversiallyelements of the legal forms being imposed upon them.
Law and custom have had a history of tussle and exchange7 in which neither has been
uninfluenced by the other. This interaction between status and identity has been one
of the irreparable historical experiences of colonialism. It became clear with the
appearance of the mixed-blood as a distinct juridical breed during the nineteenth cen-
tury, individuals born of colonialism inclined to self-identify as aboriginal notwith-
standing laws whitening tendency. Frequently the custom-based tribal nation was
happy to absorb these people into its membership, willingness the settler-state law-
makers did not share. Some mixed-bloods also splintered from the tribal nation, as
renegades or new communities though still resolutely identifying themselves as
aboriginal. Once these individuals were placed in law and by disposition outside the
traditional group, the classical model of aboriginal identity (membership of the
genealogical, territorially-fixed group) was no longer exclusive. To repeat, the devel-
opment by aboriginal peoples of new forms of ethnic (that is aboriginal) identity has
been a major, irreversible impact of colonialism.
In the years after World War II social science thinking on both the right (assimila-
tionist models) and the left (class-based models) predicted the end of ethnicity. These
models portrayed ethnicity as a primordial form of group organization, rooted in his-
tory, fixed in content, and pre-modern in form. These ancient differences were thought
destined to wither in the face of modern class and national forms of identification.8 In
their crude way, the legislators of the late nineteenth and most of the twentieth century
subscribed to a similar though less scientific view based upon their chauvinistic per-
ception of western cultural ascendance. However the continuing reality of worldwide
ethnic revivals led to the emergence of the constructivist model of ethnicity. This
model stressed the fluid, situational, volitional, and dynamic character of ethnic iden-
tification, organization, and action. Ethnicity, it was realized, was an ongoing process
in a state of continual re-negotiation, constantly re-combining the past and the present
into building material for new or revitalized identities and groups.
Just as this model became dominant in ethnology in the late twentieth century, it
also came to influence legal approaches towards aboriginal status, such as those seen in
the next chapter on international law. Ethnicity was the expression of the self-identifying
practices of groups and individuals. A similar movement also occurred in the national
legal systems, as the final chapters show. This was largely achieved through transferring
the legal responsibility for identification of membership. It went from the settler-state
to the aboriginal group itself, the middle ground between the old rigid legal specifica-
tion and fluid, non-textually-set, ethnic custom. Tribal membership codes fused the
specificity of Anglo law with the plasticity of custom, although the success of that blend
7
For a particular example, Wendy Espeland, Legally Mediated Identity: The National Environmental
Policy Act and the Bureaucratic Construction of Interests (1994) 28:5 Law and Society Rev 1149.
8
Joane Nagel, American Indan Ethnic Renewal: Red power and the Resurgence of Identity and Culture
(New York: Oxford University Press, 1996) 19. This is now a leading study of ethnicity and aboriginal
peoples and has helped the author considerably.
was very much a function of particular groups and the circumstances in which they
were defining their own membership.
According to the constructivist model, ethnic identity is not biologically fixed or
determined but can be chosen or not, changed or maintained. It is an attribute of
individuals and groups engaged in a continual process of personal and collective self-
definition, cultural restoration and innovation, community organization, and institu-
tion building.9 Ethnicity becomes a process of construction or invention which
incorporates, adapts, and amplifies pre-existing communal solidarities, cultural attrib-
utes, and historical memories. . . . Ethnic groups in modern settings are constantly
recreating themselves.10 In the modern world, as increasingly they did through their
historical experience of colonialism, aboriginal individuals have carried a portfolio of
identities. This portfolio is based upon calculations of worth, appropriateness, or cred-
ibility. . . made on the basis of feedback from various audiences in different social
settings.11 The contents of that portfolio and the running identity choices it entails
arise from a continual assessment of situation and audience. This indicates both the
complexity of ethnicity and the extent to which its various values and meanings have
been socially negotiated and inherently fluid.
It follows that ethnic identitygroup as well as individualcan be multilayered, a
phenomenon which has been particularly observed of aboriginal peoples in Australasia
and North America in the last quarter of the twentieth century. This layering has been
an outcome of their colonial experience. Cornell, for example, has written of the emer-
gence in America of supratribal identity as Indianization. He has distinguished that
from tribalization, the process by which tribes came to be what they are today as polit-
ical organisms and focal points of Indian identity.12 Today aboriginal peoples claim
identity simultaneously at a number of levels, subtribal, tribal, pan-tribal13, supratribal-
regional, or supratribal-national, and even globally.14 And most also claim or practise
identities that are not aboriginal in character, be it a civic, regional, or national identity
they share at moments with members of the wider populace. In the New Zealand con-
text Andrew Sharp has spoken of Maori group identity as a fluid form of team-playing.
Although dominated by whakapapa (genealogically-connected groups), the teams are
formed and coalesce on an issue-to-issue basis that is highly fluid and under continual
9
Nagel, American Indian Ethnic Renewal, above, 60.
10
Kathleen N Conzen et al, The Invention of Ethnicity: A Perspective from the USA (1992) 12 J of
11
American Ethnic History 45. Nagel, above, 23.
12
Stephen Cornell, The Return of the Native: American Indian Political Resurgence (New York: Oxford
University Press, 1988) 72.
13
In the eighteenth and nineteenth centuries these movements were often led by charismatic aboriginal
prophets transfusing elements of Christianity (the Old Testament especially) into nativism. For a history in
North America of this adaptive form of identity Gregory Evans Dowd, A Spirited ResistanceThe North
American Indian Struggle for Unity, 17451815 (Baltimore: Johns Hopkins University Press, 1992).
New Zealand historians include Judith Binneys remarkable Redemption Songs: A Life of Te Kooti Arikirangi
Te Turuki (Auckland: Bridget Williams Books, 1995).
14
Nagel, above, 21; Jack D Forbes, The Manipulation of Race, Caste and Identity: Classifying
Afroamericans, Native-Americans and Red-Black People (1990) 17 J of Ethnic Studies 4043; Duane
Champagne, Beyond Assimilation as a Strategy for National Integration: The Persistence of American
Indian Political Identities (1993) 3 Transnational Law and Contemporary Problems 109129, esp 124127;
Andrew Sharp, Group Representation: The Problem of Maori Representation and the Definition of
Ethnicity in New Zealand (unpublished paper, July 1996).
negotiation.15 This ability to generate new forms of group identity historians have shown
to be a longstanding feature of Maori political life, particularly in response and adapta-
tion to white colonialism. Similarly, Australian Aboriginal nations were given a statutory
framework of national and regional representation by statute (1989). Although not their
own design, they have melded their politics around this structure such that it quickly
gained legitimacy within their culture (albeit, as in any political system, one animated by
ongoing internal contestation). Aboriginal identity-practices have undoubtedly layered,
spread, and become more sophisticated as a result of colonialism.
The constructivist approach towards ethnic identity emphasizes the role of choice in
the behaviour of individuals and groups. Certainly the protection of the right to make
such choices lies at the heart of the standard set by contemporary international law for
laws of status. But in municipal contexts formal and official labels and designations
have been powerful influences upon that behaviour because these processes, whether
legal or administrative, carry the imprimatur of the state. These state-based determi-
nations of status have formal effects (such as access to governmental programmes or
participation in the benefits of claims settlement) that can and have had a major impact
upon aboriginal society. The settler-state has used status to define a policy community,
or series of them, that it could encompass jurisdictionally and bureaucratically. By a
one size fits all approach it attempted to homogenize the divergent aboriginal histo-
ries. It overlooked the cultural particularity and political aspirations of each group.16
Even though all jurisdictions had abandoned the policy of assimilation by the 1970s,
legal designations and machinery still remained powerful in determining the choices
available to aboriginal peopleand hence much of the shape of their ethnicity. Here
choice might have been abridged, modified or, at the very least, channelled by the state
to become as much a matter of legal assignment as individual or group choosing.
The role of the state and its laws in shaping aboriginal identity became a burning
issue once the era of self-determination had begun. Aboriginal identity-practices
showed that ethnicity could be constructed and shaped over and in time by political
activity where the role of choice was diminished or funnelled: through official ethnic
designations, through ethnically targeted resource distribution, and through ethni-
cally linked rules and laws as well as structures of political access.17 In short, the settler-
state as well as aboriginal culture played an important role in setting out the identity
choices available. To repeat, law and custom have interacted.
Historically aboriginal status has been especially pivotal in determining the allocation
of resources. In the late nineteenth and through much of the twentieth century status
was used to isolate the set of individuals from whom land was being prised. Individual
status not only snubbed the traditional polity by reducing it to a mere collection of
human beings. It was tied also to the processes of allotment and individualization of
title in the United States and New Zealand, and enfranchisement in Canada. Group
15
Sharp, Blood, custom and consent: three kinds of Maori groups in New Zealand and the challenges
they present to government and the constitution (2002) 51 University of Toronto LJ 937.
16
In the Canadian context see Joyce Green, Self-determination, Citizenship, and Federalism as
Palimpsest, Presentation to the Institute of Intergovernmental Relations, Queens University (Canada),
1 and 12 November 2002, 7 et seq.
17
Joane Nagel, The Political Construction of Ethnicity in S Olzak and J Nagel (eds), Competitive Ethnic
Relations (Orlando, Fla: Academic Press, 1986) 113122.
rights were commodified into a quantifiable and individualized form in order to secure
their removal under colour of law. Later, in the federal jurisdictions, status became a
mechanism for assigning formal governmental financial and legislative responsibility.
Because the settler-state was convinced it was conferring some tangible benefit upon
tribal society, mostly of a financial or proprietary character, it used law to determine eli-
gibility. Its laws determined those aboriginal peoples insideand, crucially, outside
the constitutional responsibility.
By the 1970s all jurisdictions had renounced assimilation as a policy goal in
law-making. The movement into an era of self-determination was a response, in part,
to new international norms as well as internal political pressure. Although this era will
be discussed more fully in later chapters, it is appropriate here to explain the historical
continuities that ran into this supposedly new era. Deep-seated themes of white dom-
ination and aboriginal experience of colonialism persisted despite the rhetoric of
self-determination. It will be seen that during the twilight century the laws of status
were formulated by the state as a means of removing assets from aboriginal people and
as a basis of ring-fencing governmental financial responsibility. In the age of self-
determination, however, the state disavowed its own imposition of status and as part of
the rehabilitation of the traditional groupthe tribal nationrestored tribal capacity
authoritatively to determine its own membership. The context within which this
occurred was the new one of land claims settlements and the massive infusion of state
financial aid (developmental and welfare-based) into these groups. Just as the depriva-
tion of assets had required identification of those from whom the asset (land) was being
taken and for whom the government was constitutionally responsible, so, a century
later, did the opposite process require similar identification. Assets were now being re-
vested in the group as part of settler-state reparation and rights-recognition. As this re-
commodification happened, aboriginal groups found themselves likewise setting out
formal rules of membership and treating their own status as closed and fixed.
Frequently they were themselves re-inscribing the gap between status and identity. In
these situations ethnically based resource distribution and management18 generated
much concern and contention over what constituted individual membership of the
ethnie and, indeed, what constituted the group. This disputation over membership and
governance became matters of internal debate within the tribal nations, as the dramatic
rise in intra-aboriginal litigation during the 1990s illustrated. Further, the aboriginal
nations also found also that the condition for their legal rehabilitation and autonomy
was subscription to basic tenets of western constitutionalism: open and democratic
procedures of governance, audited accounts, responsible leadership, equality of treat-
ment, and the like. In other words, the state was prepared to deal with aboriginal
society through the group but the group itself was held to basic principles of constitu-
tional practice. This, a cynic might comment, was the old assimilationist mentality but
it was being applied now to the group rather than the individual.
At the end of the twentieth century, the ongoing rehabilitation of the traditional
group was an outcome of the claims processes and other measures for the practical
18
[P]olitical regulation of ethnicity provides a powerful incentive for ethnic identification and organiza-
tional formation, among both regulated and non-regulated groups, especially when politically controlled
resources are distributed along ethnic lines. Nagel, American Indian Ethnic Renewal, 29.
implementation of self-determination, yet that emphasis also re-channelled practices

of identity within aboriginal culture. The national legal systems gave stature to the
claims process, attention that dominated the political cultures management of aborig-
inal affairs. These claims had an historical emphasis that tended heavily to validate the
authority of the traditional territory-based aboriginal polities. These reviving polities
were now fixing their membership and consolidating group identity through their own
self-operated membership codes and rolls. However there was also an important and
increasingly problematic class of individual outside the orbit of the traditional tribe.
The loss of land as well as the economic attractions of metropolitan centres meant that
aboriginal identities, group and individual, were being asserted in urban areas away
from traditional native territories. By the last quarter of the century these diaspora
urban communities were in a sense the latter-day mixed-bloods whose status was
becoming just as problematic. However coherent or integrated their urban pattern of
ethnic association might have become, these groups could not be called tribes in the
classical identity model with its historic, genealogical, and spiritual connection with
land. Nonetheless many claimed ethnic identity as aboriginal, and did so with growing
stridency. This aboriginality was reflected, they insisted, in their patterns of residence,
cultural and social engagement, and shared sense of a common historical experience
(albeit not linked to common birth territory or genealogical tradition). Urban group-
ings thus considered and described themselves as aboriginal, as their ethnic self-
identification at census time indicated. Many of them regarded their urbanization as a
direct consequence of policies of assimilation actively pursued by the state, which had
severed them from their historical roots. The status of these people wasand remains
highly controversial, both within aboriginal politics and in their relations with the state.
Their growing assertiveness of an aboriginal identity was a new phenomenon but its
lineage lay in the colonial experience itself. In a sense these groups signalled the return
of the mixed-blood. Their claim to aboriginality could not be dismissed as untradi-
tional. The final decade of the century indicated that this was becoming a critical and
growing issue and one that did not present any ready or obvious answers.
2. Aboriginal status during the apparent twilight

Having set out the themes of status and identity in very broad historical canvas spanning
the twilight century and the new era of self-determination, the rest of this chapter looks
more closely at the first of those periods. From the late nineteenth century all jurisdictions
prescribed rules of aboriginal status that defined the aboriginal group and individual.
(a) Indian status in the United States

(i) Identifying the tribe before the Indian Reorganisation Act (1934)
British colonial practice in America had distinguished between three groups of
Indians. The first group comprised the praying Indians who had placed themselves
under colonial governance by living amongst the whites, many of them converting to
Christianity. The second group consisted of Indian tribes living under the protection
of the colony but retaining tribal coherence and lifestyle, whilst the third group
consisted of the independent tribes of the great interior. The tribes of New England
mainly belonged to this second category except for those that had been almost
completely annihilated (such as most of the Powhatan Confederacy). At Independence
the question of tribal status was linked to the exercise of state jurisdiction, which was
regarded as extending to the second but not the third group.
Many of the states at the Continental Congress (1783) had Indians within their bor-
ders, such as the Narragansett, Pequot, and Wampanoag and, to the south, Nanticokes,
Pamunkeys, and Mattaponis. However it was not these tribes so much as the inde-
pendent tribes, particularly those on the frontier of settlement, like the Cherokee in
Georgia and the Sioux, Osage, and Kiowa that were of concern. The Continental
Congress identified Indians not members of any of the states,19 an explicit distinction
between the second and third categories of British practice separating the independent
tribes from those subject to state jurisdiction. That terminology was repeated in the
Congressional Ordinance (1786) with the added reference to the several nations in
amity with the United States.20 A Committee Report on the Southern Department of
Indian Affairs (1787) declared that state laws had no effect [u]pon a tribe of Indians or
their lands within the limits of the state so long as that tribe is independent, and not a
member of the state.21 The Articles of Confederation also referred to Indians not
members of any state but that distinction did not resurface in the Constitution
(1789).22 James Madison had criticized the distinction in the Federalist23 and this view
prevailed in drafting the Constitution:
The regulation of commerce with the Indian tribes is very properly unfettered from the two lim-
itations in the Articles of Confederation which render the provision obscure and contradictory.
The power is there restrained to Indians, not members of any States, and is not to violate or
infringe the legislative right of any State within its own limits. What description of Indians are
deemed members of a State is not yet settled, and has been a question of frequent perplexity and
contention in the federal councils.
Had the distinction between Indians members and not members of a state been taken
at this time it is likely the problems of status would have been resolved judicially and
without the confusion and vagueness that followed for more than a century.24 As it
was, the Constitution simply referred to Indians and the first Trade and Intercourse
Act (1790) covered the Indians, Indian tribes, and Indian country.25 The
Nonintercourse Acts were intended amongst other things to confirm the exclusive fed-
eral jurisdiction in Indian affairs and to eliminate any residual state authority, yet they
did not clarify the meaning of the term Indians. By the fifth, penultimate Act (1802)
19
25 Journals of the Continental Congress 602 (22 September 1783).
20
31 Journals of the Continental Congress 490 (7 August 1786).
21
33 Journals of the Continental Congress 456459 (3 August 1787).
22
9 Journals of the Continental Congress 845. In the summer of 1784 Governor George Clinton of
New York had invoked this distinction to claim the Indians of his state fall under the Character of Members
of the State with the management of whom Congress hath no concern: Henry Manley, The Treaty of Fort
Stanwix, 1784 (Rome, NY: Rome Sentinel Company, 1932) 3031. See Prucha, American Indian Treaties,
3840, 4445.
23
Alexander Hamilton, James Madison and John Jay, The Federalist: or, the new Constitution (Everymans
Library, London: JM Dent, 1992) #42.
24
William W Quinn Jr, Federal Acknowledgement of American Indian Tribes, 340.
25
1 Stat 137 (22 July 1790).
multiple designations and categorizations had arisen.26 There were those Indians
whose lands were secured by treaty with the United States; those in amity with the
United States; friendly Indian tribes; and Indians living on lands surrounded by set-
tlements of the citizens of the United States, and being within the ordinary jurisdic-
tion of any of the individual states.27 The final Trade and Intercourse Act (1834) also
used the qualifiers in amity with and existing treaties to define tribes covered by its
provisions. However that statute and others passed in the early 1830s28 began the
boundary between those tribes who would be provided federal services and those that
would not, a distinction that would ripen a century later.29
The dissenting opinion of Justice Johnson in Fletcher v Peck (1810) made a prophetic
distinction between those tribes acknowledged by treaty to be independent and those
not. In its own time that augury of later legal development went unnoticed.30 The
Marshall trilogy made plain the tribal basis of federal relations with the Indians, but, with
one important exception, gave no guidance as to identifying those groups that qualified
as tribes. That conception of the tribe in a juridical as opposed to ethnological and cog-
nitive sense developed after the Civil War as a new surge of westward expansion made
Indian relations a more pressing matter for the federal government.31 In United States v
Holliday (1865) the Supreme Court indicated that where the political departments of the
government (that is, the executive or legislature) had recognized Indians as a tribe this
court must do the same.32 The court indicated that the status of a tribe was a political
question for Congress and the executive whose determination they would follow.
The distinction between recognized and unrecognized tribes was strengthened con-
siderably after The Kansas Indians (1866). The state of Kansas wanted to tax the
Shawnees, Weas, and Miamis whom, it argued, were no longer tribes. Faced directly
with the question of what groups of Indians constituted a tribe in the sense used by
Chief Justice Marshall, the Supreme Court emphasized both the fact of tribal integrity
and federal recognition. If the tribal organization of the Shawnees is preserved intact,
and recognized by the political departments of the government as existing, then they
are a people distinct from others, capable of making treaties, separated from the juris-
diction of Kansas, and to be governed exclusively by the government of the Union.33
The Administration was apparently slow in apprehending that distinction,34 however
by 1871 it was firmly grasped. That year Congress ended the practice of treaty-making,
ordering that hereafter no Indian nation or tribe within the territory of the United
States shall be acknowledged or recognized as an independent nation, tribe, or power
with whom the United States may contract by treaty. . . .35 The statute signalled that
26 27
Quinn Jr, above, 341. 2 Stat 139 (30 March 1802).
28
An Act for the Removal of Indian Tribes, 4 Stat 411 (28 May 1830); An Act establishing the post of
Commissioner of Indian Affairs, 4 Stat 564 (9 July 1832); An Act for the Organisation of the Department
29
of Indian Affairs, 4 Stat 735 (30 June 1834). Quinn Jr, above, 343.
30
Fletcher v Peck (1810) 10 US (6 Cranch) 87, 146147. See Quinn Jr, above, 341.
31
Quinn Jr, Federal Acknowledgement of American Indian Tribes, 344347.
32 33
(1865) 70 US (3 Wall) 407, 419. (1866) 72 US (5 Wall) 737, 755.
34
Quinn Jr, above, 346.
35
16 Stat 544, 556 ch 120 (3 March 1871). This Act was the outcome of a dispute between the Senate
and House of Representatives over control of Indian affairs. The House was unhappy with the central role
taken by the Senate in ratifying Indian treaties.
by this time the meaning of tribe had become a juridical as well as ethnological matter.
There were those tribes that federal practicetreaty-making in particularhad rec-
ognized, and those it had not, in many cases because formal relations had not by then
become necessary.
The Cherokee Trust Funds case (1885) confirmed that the tribe was the fundamental
reference point for federal Indian law. The case also demonstrated the judicial role in
determining the status of a tribe as recognized or not. In this case the Supreme Court
refused to recognize the distinct tribal status of the remnant Cherokees in North
Carolina who had refused to embark on the Trail of Tears to land west of the
Mississippi. The court held that federal practice had never recognized the North
Carolina Cherokee as a separate Nation: there was no treaty with them, they could
pass no laws, they were citizens of the state and bound by its laws.36 The court noted
that the North Carolina Cherokee had formed a union amongst themselves at the sug-
gestion of a government official in 1863. Though they had been in some matters fos-
tered and encouraged by the United States, they still lacked the factual existence and
recognition of the executive branch as a Nation in whole or in part.37
After Congress halted treaty-making in 1871, what, it was wondered, would be the
basis of federal dealings with those tribes, the western ones in particular, that had no
such established relation? Almost immediately after the 1871 law had been passed,
agreements with tribes were made as a form of treaty-substitute though lacking the
same constitutional status. They began in 1872 with the Shoshones and continued
until 1911 when the final agreement was made with a band of southern Utes. Some
were specifically authorized by Congress; others were concluded by the Indian Office
to deal with particular issues; and some resulted from Indian initiative. Most of them
concerned land and adjustments (invariably reductions) of reservation boundaries or
other encroachments on reservation land (such as railway rights of way) or treaty rights
(commutation of annuities).38 There was another major response to the end of treaty-
making. This was the increased use of special Congressional legislation which fre-
quently included provision for Indian consent to land cessions. These statutes took a
middle ground between negotiated agreements and unilateral Congressional action.39
For example, Congress authorized the Secretary of the Interior with the consent of the
Otoe and Missouria Tribes of Indian, expressed in open council to sell the remainder
of their reservation lands in Kansas.40 A third class of treaty-substitute was executive
orders issued by the President. Previously treaties and statute had established reserva-
tions, but after 1871 new ones were formed and old ones modified by executive order.41
These executive measures did not rest on any explicit legal foundation and resulted in
over 23 million acres being set aside (much of it in Arizona and New Mexico)42 until
Congress declared an end to the practice in 19189.43
36 37
Eastern Band of Cherokee Indians v United States 117 US 288, 309 (1885). Ibid.
38
Francis Paul Prucha, American Indian Treaties, 313 et seq on the history of these agreements.
39 40
Ibid 326. 21 Stat 38081 (1881). More examples are given in Prucha, above, 326327.
41 42
Prucha, above, 329. Clinton, Newton, Price (eds), American Indian Law, 713.
43
25 USC 211 (codification of 1918 Act prohibiting new reservations in New Mexico and Arizona
except by Act of Congress); 43 USC 150 (codification of 1919 Act prohibiting all executive order reserva-
tions except by Act of Congress); and also 25 USC 398d (prohibiting boundary changes in executive order
reservations, except by Act of Congress).
This new complexity in Indian relations was compounded by unilateral Congressional

statutes which displayed the extent to which Congress was willing to assume legislative
power over Indian nations. This legislation has been described in a previous chapter and
was a deliberate form of cultural engineering, the goal of the policy being the civilization
and de-tribalization of the Indians. The Dawes Allotment Act 1887 was the most dra-
matic and brutal example, and with the Major Crimes Act (1885) and the Indian
Depredations Act (1891) required means of determining what Indian groups held status
as tribes. The Commissioner of Indian Affairs T.J. Morgan realized this problem when
he entitled his Annual Report (1892) What is an Indian? He opened with a dramatic but
plain confession:44
One would have supposed that this question would have been considered a hundred years ago
and been adjudicated long before this. Singularly enough, however, it has remained in abeyance,
and the Government has gone on legislating and administering law without carefully discrimi-
nating as to those over whom it had a right to exercise such control.
As one might expect with legislation giving litigious and acquisitive white settlers
rights against the government, the Depredations Act generated its own jurispru-
dence.45 This statute allowed claims by American citizens for property. . . taken or
destroyed by Indians belonging to any band, tribe or nation in amity with the United
States, without just cause or provocation on the part of the owner. . . .46 That case-law
culminated in Montoya v United States (1901) where the Supreme Court established
the following definition for the purposes of the Act:47
By a tribe we understand a body of Indians of the same or a similar race, united in a community
under one leadership or government, and inhabiting a particular though sometimes ill-defined
territory; by a band, a company of Indians not necessarily, though often of the same race or
tribe, but united under the same leadership in a common design. While a band does not imply
the separate racial origin characteristic of a tribe, of which it is usually an offshoot, it does imply
a leadership and a concert of action.
At the beginning of the twentieth century it was established that a tribe existed where
the elements of governance and territory were made out and, further, that this tribe
could be recognized by the executive or Congress. The Montoya case did not treat exist-
ence and federal recognition as synonymous but as distinct conditions. Existence was
essentially a factual condition whilst recognition a legal one.
That distinction was confirmed soon after in United States v Sandoval (1913). This
case concerned the status of the Pueblo Indians of New Mexico who were living in as
many as twenty pueblos, each of which typically consisted of 17,000 acres held in com-
munal fee-simple ownership under grants from the King of Spain. The Supreme Court
stressed that the status of the pueblos was a matter for Congress rather than the court:
. . . it is not meant by this that Congress may bring a community or body of people within the
range of this power by arbitrarily calling them an Indian tribe, but only that in respect of dis-
tinctly Indian communities the questions whether, or to what extent, and for what time they
44
Commissioner of Indian Affairs, Annual Report (1892) 30.
45
It is discussed in Quinn, Jr, Federal Acknowledgement of Indian Tribes, 350352.
46 47
26 Stat 851, ch 538 (3 March 1891). (1901) 180 US 261, 266.
shall be recognized and dealt with as dependent tribes requiring the guardianship and protection
of the United States are to be determined by Congress, and not by the courts. As before indi-
cated, by an uniform course of action beginning as early as 1854 and continued up to the pres-
ent time, the legislative and executive branches of the Government have regarded and treated the
Pueblos of New Mexico as dependent communities entitled to its aid and protection, like other
Indian tribes, and, considering their Indian lineage, isolated and communal life, primitive cus-
toms and limited civilization, this assertion of guardianship over them cannot be said to be
arbitrary but must be regarded as both authorised and controlling.48
The court was clear that recognition was a step for the political branches but added
the rider that not even Congress could confer recognition upon any aggregation of
people who claimed to be Indians. There was, in other words, an inherent limit upon
the plenary power: it could not extend recognition to a non-existent body: the factual
existence and federal recognition of a tribe were distinct matters.
Soon after it was held that as a concomitant of the power to recognize tribes,
Congress could also terminate recognition. These Supreme Court words made an
unwitting prophecy of the government policy to come: 49
It may be taken as the settled doctrine of this Court that Congress, in pursuance of the long-
established policy of the Government, has a right to determine for itself when the guardianship
which has been maintained over the Indian shall cease. It is for that body, and not the courts, to
determine when the true interests of the Indian require his release from such condition of tutelage.
The question of whether recognition had occurred remained, however, a judicial
inquiry. The threshold requirement set in Montoya was met by the Pueblo of New
Mexico who had also been federally recognized by a uniform course of dealing . . . [by]
the legislative and executive branches that had begun in 1854 and continued into the
next century.50
In Worcester v Georgia (1832) Justice Maclean had agreed that the Cherokee Nation
remained separate and that state law did not apply to them. However he described the
exceptional status of the Indian tribes as temporary and contemplated their independ-
ence eventually deferring to state jurisdiction:
If a tribe of Indians shall become so degraded or reduced in numbers as to lose the power of self-
government, the protection of the local law, of necessity, must be extended over them . . . At best
they can enjoy a very limited independence within the boundaries of a state, and such a residence
must always subject them to encroachments from the settlements around them; and their exis-
tence within a state as a separate and independent community, may seriously embarrass or
obstruct the operation of the state laws. If, therefore, it would be inconsistent with the political
welfare of the states, and the social advance of their citizens, that an independent and permanent
power should exist within their limits, this power must give way to the greater power that
surrounds it, or seek its exercise beyond the sphere of state authority.51
In other words, a recognized tribe could shed its independence and special status by
treaty or, more especially, by state assertion over them by dint of their proximity to
48
United States v Sandoval (1913) 231 US 28.
49
Tiger v Western Investment Company (1911) 221 US 286, 315.
50
United States v Candelaria 271 US 432 (1926).
51
(1832) 31 US (6 Pet) 515, 563 and 596 (McLean J concurring).
white settlement and governance. Justice McLean was implying a states capacity to
determinethat is, to terminatetribal status by its own assessment of the physical
condition of a particular group. That ripened into a holding shortly after when he sat
as a circuit judge in United States v Cisna (1835). Like Worcester v Georgia this case con-
cerned a clash between applicable federal and state laws, this case occurring on a reser-
vation where a non-Indian had stolen a horse. Despite the Trade and Intercourse Act
(1802) making the offence a matter of federal law, Justice McLean opted for state law.
The situation of the Wyandott Reservation in Ohio was, he said, quite different to that
of the Cherokee in Georgia. The Wyandotts were surrounded by a dense white popu-
lation, which have daily intercourse with the Indians . . . [and they] own property of
almost every kind, and enjoy the comforts of life in as high a degree as many of their
white neighbors.52 Indian tribes could thus lose their independent legal status without
reference to Congress or any treaty where the state had assumed jurisdiction.
This approach appealed to state courts and was used in various state supreme court
decisions in the late nineteenth century and well into the next.53 A leading example was
In re Narragansett Indians (1898) where the Supreme Court of Rhode Island drew on
Justice McLeans approach and endorsed state legislation purporting to terminate the
existence of a tribe. That was justified not so much on the basis of inherent state juris-
diction as the actual condition of the Indians that gave rise to it. The court said, a time
must come when, from the necessities of the case, the action of the States over Indians
must be more and more exercised. 54 The Supreme Court rejected Justice McLeans
approach in The Kansas Indians (1866)55 but, as the Narragansett Indians case subse-
quently showed, the notion that tribal status could be lost by proximity and the asser-
tion of state jurisdiction remained attractive to some courts. It was not until the
mid-1970s that the Supreme Court finally eliminated that notion of termination by de
facto assumption of state jurisdiction.56
(ii) Tribal identity under the Indian Reorganisation Act (1934) (IRA)
By the time of the Indian Reorganisation Act (1934) (IRA) the distinction between
recognized and non-recognized tribes had become the foundation for the management
of Indian affairs. By the 1930s traditional tribal governments had been severely eroded
on approximately half of all reservations57 as a result of federal officials and super-
intendents assumption of responsibility for a wide range of governmental functions.
The IRA addressed that problem, but in doing so set the stage for parallel forms of
governmenttraditional and electeda split that continued to affect Indian
communities at the end of the century.
The IRA was the outcome of President Roosevelts appointment of John Collier as
Commissioner of Indian Affairs. The famous Meriam Report (1928) had criticized the
52
25 F Cas 422 (CCD Ohio, 1835) (no 14,795).
53
Wilkinson, American Indians, Time and the Law, 3435.
54
20 RI 715, 40 A 347 (1898). Also State v Doxtater 47 Wis 278, 2 NW 439 (1879).
55
(1866) 72 US (5 Wall) 737.
56
McClanahan v Arizona State Tax Commission (1973) 411 US 164, 173 (n 12); Moe v Confederated
Saliah and Kootenai Tribes (1976) 425 US 463. See Wilkinson, above, 3537.
57
Sharon OBrien, American Indian Tribal Governments (Norman: University of Oklahoma Press, 1989) 93.
failure of federal policies followed since the late nineteenth century, allotment most
especially. Collier supported the reforms called for by the Report, and many were
incorporated into the IRA (1934).58 This statute overhauled Indian policy though not
as thoroughly as its sponsor had hoped, resistance from his agency and conservative ele-
ments in Congress pruning his initial ambition.59 Nonetheless Collier brought a fresh
vision of Indian policy, one that displaced the heavy hand of the Indian Service and
replaced it with a model of Indian autonomy and enterprise albeit one styled upon
western corporatism.
Essentially, Collier proposed the rehabilitation of tribal corporatism. Allotment was
halted in the first section of the IRA. The statute enabled tribes to adopt constitutions
by a procedure involving ratification by members and approval by the Secretary of the
Interior (section 16). These constitutions could provide for the exercise by tribal gov-
ernments of all powers vested in any Indian tribe or tribal council by existing law.
A Department of the Interior (DOI) opinion soon after described existing law as
those powers of self-government that had never been terminated by law or waived by
treaty.60 The opinion then identified a range of powers of self-government. The list
formed the basis for the DOIs model constitutions that became the templatesor
boilerplatesfor the adopted tribal constitutions. Tribes were also empowered to
adopt charters of incorporation in order to carry out business (as opposed to govern-
mental) matters (section 17). Eventually federal law distinguished between tribes act-
ing under their constitutional powers, where the doctrine of tribal sovereign immunity
applied,61 and its business operations, where the doctrine was inapplicable.
The IRA contemplated all (the then recognized) tribes deciding within a two-year
window period either to come within its provisions or to remain outside. A list had
been drawn up of those tribes eligible to vote and that became de facto the first list of
tribes recognized by the United States.62 In the window period two hundred and fifty-
eight elections were held in which one hundred and eighty-one tribes (129,750
Indians) accepted the Act and seventy-seven tribes (86,365 Indians, including 45,000
Navajo) rejected it. Some fourteen groups of Indians who did not hold elections also
came under the Act. Within twelve years one hundred and sixty-one constitutions and
one hundred and thirty-one corporate charters had been adopted under the IRA.63
The process by which the IRA was devised, enacted, and sold to the tribes during the
1930s subsequently drew heavy criticism.64 For example, tribe members who had not
voted were considered to have approved adoption of the IRA. Although most critics
58 59
25 USC 461, section 1. Clinton, Newton, Price (eds), American Indian Law, 152153.
60
Nathan Margold, Decisions of the Department of the Interior (Washington DC: Government Printing
Office, 1938) vol 55, 1467.
61
For the history of this doctrine, see Theresa Wilson, Nations within a Nation, 99 et seq.
62
63
Comment, Tribal Self-Government and the Indian Reorganization Act of 1934 (1972) 70 Michigan
L Rev 955, 972.
64
Notably Lawrence Barsh, Another Look at Reorganization: When Will Tribes have a Choice? Indian
Truth no 247, (October 1982) reprinted in Clinton, Newton, Price (eds), American Indian Law, 362366.
For a contemporaneous account of the enactment of the IRA see Marvin W Krieger, Principles of the Indian
Law and the Act of June 18, 1934 (1935) 3 George Washington L Rev 279. Also Arrell Morgan Gibson, The
American Indian: Prehistory to Present (Lexington: DC Heath and Company, 1980) 529544 for a non-critical
account accepting the IRAs advocates description of it as the Indian Magna Charta.
supported the Acts immediate halting of the ruinous allotment process, it was seen as
a masked continuance of the policy of bureaucratic control of Indian affairs. The crit-
icism was that as most tribes were then unaware of the format of a constitution, those
mostly adopted in this period were standardizedso-called boilerplate constitutions
which uniformly reserved considerable power for the Secretary of the Interior.65 These
constitutions uniformly gave the Secretary power to approve tribal ordinances, making
this a condition of validity. The tribes had been rushed into voting for the IRA without
any attempt to familiarize them with the constitutional form on offer. The prevalence
of the Secretarial approval of tribal ordinances was later attacked as not being required
by any specific federal law but as a bureaucratic imposition with no legal anchor except
being hooked inside the tribal constitutions themselves.66
Most boilerplate IRA constitutions provided for the erection of tribal courts. Collier
had wanted a two-tier system of tribal courts with one level of courts constituted under
the self-government title of the proposed act. There was also to be a national Court of
Indian Affairs with a wide jurisdiction in legal matters involving an Indian party,
including criminal and civil cases where the other party was non-Indian. This part of
the bill generated considerable controversy and was dropped.67 Tribal courts were
established under the tribes inherent authority but not with a national court exercising
an umbrella jurisdiction as Collier had envisaged.
A variety of IRA constitutions were adopted over the years. They wove into a quilt
of arrangements, each tribe with its own. Nationally the overall pattern was chequered:
The constitutions and charters themselves vary considerably, especially with respect to the forms
of government adopted, ranging from ancient and primitive forms in tribes where such forms have
been perpetuated, to models based on progressive white communities. Likewise, the powers
vested in the tribes through these documents vary in accordance with the circumstances, experi-
ence and resources of the tribe. On the one hand, there are provisions which appear in most con-
stitutions in nearly identical terms. Most governments established under the IRA, unlike federal
and state governments, have no provision for the separation of powers. The governing body is the
tribal council, and in many instances it acts in a legislative as well as executive capacity. The coun-
cil members, acting either in their capacity as elected political officials or as directors of the tribal
corporation, also manage the common resources of the tribe. While it is often assumed that such a
unification of powers is undesirable, most tribes have operated well under a unified system.68
The observation in that passage about the effectiveness of the melding of executive
and legislative power was made in 1972. Twenty years later tribes were finding it a
vastly more problematic feature of their constitutional arrangements than that
somewhat complacent tone would suggest.
The IRA provided a clear means of identifying recognized tribes whose members
would be eligible for federal benefits under the Snyder Act (1921).69 The Alaska
65
Clinton, Newton, Price (eds), American Indian Law, 368.
66
Senate Committee on the Judiciary, Summary of Hearings and Investigations by the Subcommittee on
Constitutional Rights (88th Cong 2nd Sess 1964), extracts in Clinton, Newton and Price, 368.
67
Frank Pommersheim, The Contextual Legitimacy of Adjudication in Tribal Courts and the Role of
the Tribal Bar as an Interpretive Community: An Essay (1988) 18 New Mexico L Rev 49, 5355.
68
Comment, Tribal Self-Government, 974.
69
The Snyder Act 42 Stat 208, ch 115 (2 November 1921) authorized items of appropriation within nine
broad programme areas. Until then Congressional appropriation had proceeded by way of a point-by-point
Reorganisation Act (1936) established criteria for determining the recognition of

groups having a common bond of occupation, or association, or residence with a well-
defined neighborhood, common unity, or rural district.70 A month later the
Oklahoma Indian Welfare Act extended the provisions of the IRA to Oklahoma
Indians.71 By these two extensions of the IRA, all potentially eligible Native Americans
were covered, and the subsequent questions of sorting out statuses of individual tribes
and groups became the principal issue.72 The IRA therefore rigidified the distinction
between recognized and unrecognized tribes.
The IRA had also introduced a new theme to tribal governance and that was the impri-
matur of the state. Whereas previously Indian governance had been almost entirely cus-
tomary, for those tribes adopting an IRA constitution a more constitutional, westernized
form had been exchanged for the traditional. This meant that though the inherent sover-
eignty of the tribe remained, that basis of governance had been blended with the endorse-
ment of the state. A paradox had been established. The legal definition and constitution of
the tribe was a simultaneous expression of inherent and delegated legal authority. Further
the enclosure of tribal governance within the textual boundaries of an IRA constitution
injected western ideas of legalism into what had previously been more organic and tradi-
tional processes. The IRA may have rehabilitated tribalism, but it also accentuated the
presence of Anglo-American legalism in tribal affairs. In particular the IRA constitutions
made weak provision for the separation of power, giving executive officers considerable,
unchecked authority that was prone to abuse, and without the formal counteraction of
customary processes. The IRA model constitution contemplated the centralization of
power in small tribal councils proceeding by divisive majority vote with few checks or bal-
ances. This became the form with which most tribal constitutions ended.73 Many tribes
with a culture of decentralized, consensus-based decision-making found adjustment to the
new form difficult if not impossible. Some, such as the White Mountain Apache Tribe,
were organized customarily in a manner that made the centralized IRA form an easy fit,
but others, like the Oglala Sioux Tribe, had more dispersed and incompatible notions that
years later still made adjustment impossible.74 For many tribes the new experience of con-
stitutional life inside the IRA accentuated the wedge between western legalism and cus-
tomary governance, the former engaging bumpily with the latter. As a result a common
pattern occurred on many reservations: the formal elective IRA structure of governance fell
out of step and into conflict with the persistent traditional form.
Some tribes rejected the IRA and kept their customary form of governance. The
Navajo were the most famous nation to vote negatively; however by the early 1930s
the federal government had already tampered with their customary system. During the
review which was time-consuming and inefficient: Alan L Sorkin, The Urban American Indian (Lexington,
Mass: Lexington Books, 1978) 4.
70
49 Stat 1250, ch 254 (1 May 1936).
71
49 Stat 1967 (codified at 25 USC 501509), ch 831 (26 June 1936).
72
73
Graham Taylor, The New Deal and American Indian Tribalism: The Administration of the Indian
Reorganisation Act, 193445 (Lincoln: University of Nebraska Press, 1980) 177, n 11.
74
Stephen Cornell and Joseph P Kalt, Sovereignty and Nation-Building: The Development Challenge
in Indian Country Today (1998) 22:3 American Indian Culture and Research Journal 187 (online at
http://www.ksg.harvard.edu/hpaied/docs/CornellKalt%20Sov-NB.pdf ).
1920s oil interests were eager to exploit the Navajos energy resources and urged the
Department of the Interior (DOI) to authorize the establishment of a centralized
Navajo tribal council capable of making the necessary grants. Traditionally Navajo pol-
itics were organized at a local level of bands of ten to forty families. The DOI estab-
lished the Navajo Tribal Council in 1923, a pan-Navajo bodythe first in the nations
historyto act on behalf of the entire people. The DOI drafted the Councils regula-
tions, using a treaty of 1868 as justification for its establishment.75 The Council has
been the Navajos governing body for over eighty years since, although its authority has
never received formal consent from the Navajo people.76 In a sense the Navajo did not
need the centralized IRA form because the federal government had already given their
customary system a similar centralizing element.
The IRA formally constituted the tribe, superseding the customary processes and
introducing constitutional textualism into tribal political life. However the introduc-
tion of text-based legalism did not also mean that thoroughgoing western constitution-
alism eventuated. As observed already, the IRA constitutions did not set out a separation
of powers. In addition the ruling in Talton v Mayes (1896) insulated tribal governance
from Constitutional review. The case concerned a murder by a tribe member of another
on reservation land. The crime had been tried under Cherokee law. The Supreme Court
ruled that the legal processes of the Cherokeeand, inferentially, tribal governments at
largewere not subject to judicial review under the Fifth Amendment. 77 Also in 1940
the Supreme Court explicitly articulated the doctrine of tribal immunity from suit
implicit in that earlier case. The court stated that neither the tribe nor tribal officials act-
ing within the scope of their authority could be subjected to non-consensual suit in any
courttribal, state, or federal.78 The Indian Civil Rights Act (1968)79 punctured that
principle and applied many, though not all, of the provisions of the Bill of Rights to
Indian tribes. It sought to protect Indians and non-Indians from the alleged abuses and
excesses of tribal government.80 The history of the Act will be looked at in the next chapter.
After 1934, federal recognition had been firmly set as a legal threshold for the
acceptance by the federal government of responsibility for a tribe. Recognition thus
determined a tribes eligibility for federal benefits. Recognition connoted a legal sta-
tus derived from some act or pattern of conduct by the federal government and
became recognized by the courts as having been made in three general situations. It
occurred where there were: (1) federal statutes or treaties recognizing the tribe; (2) con-
stitution under the IRA or (after 1978) recognition under the BIAs regulations;
75
Donald L Parman, The Navajo and the New Deal (New Haven: Yale University Press, 1976) 1617.
Article X of the Treaty of 1868 (text in Charles J Kappler (ed), Indian Affairs, Laws and Treaties (5 vols,
Washington DC: GPO, 190441) II, 101520) required any future cessions of land to have the consent of
three-fourths of the adult male population.
76
Eric Lemont, Developing Effective Processes of American Indian Constitutional and Governmental
Reform: Lesson from the Cherokee Nation of Oklahoma, Hualapai Nation, Navajo Nation and Northern
Cheyenne Tribe (Cambridge, Mass: Harvard Project on American Indian Economic Development, 2001) 9.
77
163 US 376 (1876).
78
United States v United States Fidelity and Guaranty Company 309 US 506 (1940), 512513.
79
82 Stat 77, Pub L no 90-284 (codified as amended at 25 USC 13011303).
80
See DJ Burnett, An Historical Analysis of the 1968 Indian Civil Rights Act (1972) 9 Harvard
J Legislation 557.
and (3) historical recognition.81 However recognition presupposed the factual existence
of a tribe, according to Montoya. There remained contexts where extant tribes held
legal status despite non-recognition. This distinction between existence and federal
recognition became particularly important during the north-eastern land claims of the
late 1970s.
It was seen earlier that by the beginning of the twentieth century federal law based
the legal status of a tribe upon factual existence and federal recognition. This approach
essentially was an incremental one as the case-law demonstrated. It required determi-
nations by federal officials as to the situation of a particular group that might be over-
ridden or second-guessed subsequently by a court. Since the zone within which federal
Indian law operated was surrounded by the wall of recognized tribes built brick by
brick, tribe by tribe, the policy of termination proposed dismantling it in the same
piecemeal manner. Termination became the theme of federal policy and practice
immediately after World War II, and will be discussed in the next chapter. It repres-
ented a call for the removal of the status that imposed special responsibility upon the
federal government and conferred special constitutional and legal rights and status
upon the tribe and its members. Termination thus re-applied the mentality of assimi-
lation, but to the tribe rather than individual. The plan was that those tribes perceived
to have reached a certain stage of advancement would lose federal recognition (and all
the benefits that came with it).
(iii) Individual status as an Indian citizen and an American citizen

The American law of individual status began to develop in the mid-nineteenth century.
The parameters were set by the Marshall Courts recognition of the tribe as the
juridical unit of federal law. This meant, plainly, that an Indian was a person who was
a member of a tribe. As the Cherokee Cases had described the independent tribes as
nations governed by their own laws, this entailed their inherent capacity to decide their
own rules of membership. The side-effect of these cases was that tribal Indians were not
citizens by birth because they were not subject to United States jurisdiction, a position
reaffirmed by the Supreme Court in Elk v Wilkins (1884).82 The Civil Rights Act
(1866) guaranteed all citizens the same right . . . to sue, be parties and give evidence83
but expressly excluded Indians. Being an Indian thus involved not only certain rights
such as those held under treaty, but also civic disabilities.
By the mid-nineteenth century questions of tribal membership were arising in the
courts and these were almost entirely a result of increasing miscegenation. During the
eighteenth century aboriginal identity-practices had grown increasingly complex and
fluid as a result (literally) of the intercourse of the aboriginal and white. The most dra-
matic example of that occurred in the great river systems of the interior from the north-
ern reaches of the Hudson Bay Company south to the lower Mississippi and Missouri
basins where fur trappers, mostly French, formed temporary and permanent liaisons
with women in host tribes. These liaisons were more than a sign of sexual licence and
81
Price v Hawaii 764 F 2nd 623 (1985)(CA 9), 626627; Native Village of Puckett 957 F 2nd 631 (1992)
82
(CA 9), 634635. 112 US 94 (1884).
83
Civil Rights Act of 1866, 14 Stat 27, cap 31, section 1.
the breakdown (and reconfiguration) of the religious (Catholic in particular) and

customary sexual codes, although there was an element to that in the many transient
and casual encounters. By the early nineteenth century family arrangements and moral
standards amongst the sizeable mixed-breed population varied considerably. Frequently,
however, intermarriage sealed important commercial and political alliances vital to the
parties trading interests and prosperity.84
There was another wave of interbreeding in the mid-nineteenth century. This second
wave occurred in the context of permanent settlement rather than the itinerancy of the
fur trade. It was in part a consequence of the great removals of the 1830s, which caused
a depletion of eligible Indian males and an oversupply of willing white men. These inter-
marriages were, however, more than a mere function of absence and availability for they
often performed a strategic role, particularly for homesteading white males looking for
land as well as sexual comfort. As a species white husbands, whilst eager to claim a por-
tion of the tribal land through congress with its daughters, were frequently hostile
towards the tribal authority of their fathers and given to undermining (or ignoring) it.
Consequently the white husband, and his progeny, soon attracted the special attention
of tribal law, especially as the communal title became individualized and tribal authori-
ties struggled to ensure group integrity and discipline. Numerous tribes, like the
Cherokee and Pueblo, passed membership laws they regarded as necessary to protect
their authority and assets from this group. Intermarriage was also a sign of the much
closer proximity of tribes and white communities as settlement pushed westward, bring-
ing with it squatters, traders, and other encroachments onto Indian land. In Stephens v
Cherokee Nation (1898) the Supreme Court cited a Senate Report (1890) wherein a cen-
sus gave the population in the Indian Territory of the Five Civilized Tribes. The figures
were Indians 50,055; coloured persons (including freedmen and part-coloured-Indians)
18,636; Chinese, thirteen; and whites, 109,393.85 This phenomenon increasingly came
to compromise tribal governance as the tribal jurisdiction was not regarded as extending
to non-members who were, anyway, fractious whites poorly disposed towards the tribe
onto whose territory they were encroaching. In 1875, for example, the Cherokee
adopted a code of membership to retain control of their land and territorial authority in
the face of intermarriage and white invasiveness.
The mixed-bloods had a distinct presence by the middle of the eighteenth century
through the first fur trade wave of interbreeding. They were usually able to move
between tribal and white culture deftly and successfully. Those that opted into tribal
life frequently became the great innovators who renewed and adapted the traditional
political forms. The experience of the Five Civilized Tribes of the American South dur-
ing the early nineteenth century demonstrated graphically the impactand for those
seeking submissive tribal nationsthe potential danger of innovative mixed-bloods.86
84
See Tanis Thorne, The Many Hands of My Relations: French and Indians on the Lower Missouri
(Columbia: University of Missouri Press, 1996) 160176.
85
174 US 445 (1898) at 447448. The Dawes Commission estimated that in the four years since 1890,
at least 250,000 people had moved onto the tribal lands.
86
Bob L Blackburn, From Blood Revenge to the Lighthorsemen: Evolution of Law Enforcement
Institutions among the Five Civilised Tribes to 1861 (1980) 8 American Indian L Rev 49 emphasizing the
role of second and third generation mixed-bloods.
However, many mixed-bloods lived outside both societies and formed their own
communities and identity. The Mtis of the prairies around the Red River were a dra-
matic example. Elsewhere and to the south, American treaties occasionally made dis-
tinct provision for them although this policy was complicated by the high fluidity and
mobility of the mixed-blood families.
As Indian nations and white communities became more intermingled and no longer
separated (as notionally and officially Indian country had once been demarcated) by
a north-south line, questions of legal status became more pressing. These questions
became important initially for jurisdictional reasons and, later, purposes of allotment.
Before the consequences of being an Indian could apply (such as immunity to State
jurisdiction or eligibility for an allotment grant), the status of a particular individual
had to be determined. The Cherokee Cases clearly implied that determination of mem-
bership was a matter for the tribe as part of its residual power of self-government, yet
that was not the position taken by the Supreme Court.
In United States v Rogers (1846) the Supreme Court considered section 25 of the
Nonintercourse Act 1834. The statute exempted from federal jurisdiction crimes
committed by Indians in their territory. In this case the court regarded status as an
Indian as a racial classification that a white man could not change by membership of
a tribe. The legislation did not speak of members of a tribe but of the race generally
of the family of Indians.87 The court was worried that it would perhaps be found
difficult to preserve peace among them, if white men of any description might at
pleasure settle among them, and, by procuring an adoption by one of the tribes,
throw off all responsibility to the laws of the United States. Such men were gener-
ally. . . found the most mischievous and dangerous inhabitants of the Indian coun-
try.88 For purposes of determining criminal jurisdiction, then, Rogers viewed
classification as a racial matter, decided by blood rather than tribal membership. The
case opened the distinction between tribal membership under tribal law (identity)
and Indian status under federal law and as determined by legal processes beyond tribal
control.
After this, a series of cases considered the scope of criminal jurisdiction and estab-
lished the authority of the federal courts to determine an individuals identity as an
Indian. The Crow Dog case (1883)89 had confirmed the immunity of Indians from
federal jurisdiction for crimes committed against one another in Indian country. The
Major Crimes Act (1884) and General Crimes (Indian Country) Act that followed
established federal jurisdiction over specified crimes but did not define an Indian. In
that regard the racial approach prevailed90 until the Supreme Court backed away in
Nofire v United States (1897). The defendants in this case were full blood Cherokees
who had killed Rutherford, a white man adopted by the Cherokees. The court held
that a white man who sought to become a citizen of the Cherokee Nation, who took all
the steps he supposed necessary, considered himself a citizen and whose citizenship the
Nation recognized in his lifetime and still asserted after his death was a citizen by
adoption for the purpose of determining the jurisdiction of the circuit court on an
87 88 89
45 US 567 (4 How) 567, 573 (1846). Ibid. 109 US 556 (1883).
90
Westmoreland v United States 155 US 545 (1895); Alberty v United States (1896) 162 US 500.
indictment for murder.91 The judgment indicated, as later cases confirmed, that
association with a tribe must be sustained for an individual to be an Indian for the pur-
poses of federal criminal jurisdiction.92 Nofire also established the principle that
Congress and the Supreme Court would later consolidate and, in the context of allot-
ment, qualify. This principle was one of deference to tribal determination of its own
membership. In Roff v Burney (1897) the court said:
The only restriction on the power of the Chickasaw nation to legislate in respect to its internal
affairs is that such legislation shall not conflict with the Constitution or laws of the United States,
and we know of no provision of such Constitution or laws which would be set at naught by the
action of a political community like this in withdrawing privileges of membership in the
community once conferred. 93
Even the retroactivity of the Chickasaw law did not matter. It was enough to hold that
all personal rights founded on the mere status created by the prior act fell when that
status was destroyed.94
Rogers indicated that Indian women could not be used as a means for white men to
obtain tribe membership so as to escape criminal jurisdiction. By the end of the cen-
tury its narrow, essentially racial test of Indian status had been given another element,
that of the individual being recognized as an Indian by a tribe or the federal govern-
ment (Nofire). Although judgment had been based only on the first racial ground, that
two-pronged test became associated with Rogers and was used as the test for criminal
jurisdiction in the next century.
However the position of the non-Indian husband was less certain in other regards
apart from criminal jurisdiction, at least for those who had married before 1888. In
that year Congress passed a law declaring that Indian women who married white men
became citizens.95 This did not affect the considerable number of those already mar-
ried, and the disentitlement to tribal property did not include the white husbands
among the Five Civilized Tribes. The Senate established the Dawes Commission in
1894 to explore the means of extinguishing the tribal title and distributing the land
amongst individual tribe members. The status of the many white intermarried people
was a major problem, the Commission found, noting that the tribes had tried to
exclude these white husbands from any land distribution. An 1896 statute endorsed
the Commissions recommendation that a non-Indian tribunal should decide eligibil-
ity for tribal citizenship for the purposes of allotment and distribution of federal bene-
fits.96 A Congressional law of 1875 had required all Indians entitled to receive supplies
and annuities to be enrolled with the agent of the government in charge of the reserva-
tion,97 and so the law of 1896 accentuated the practice of federal identification already
in place. When allotment became actively pursued enrolment thus provided a means
for establishing legal status. The Commission was authorized to review applications for
91
164 US 657 (1897).
92
State v Howard 74 P 382 (SC Wash 1903); ex parte Pero 99 F 2nd 28 (7th Cir 1938).
93
Roff v Burney 168 US 218 (1897), 223 (the court refused to enquire into the validity of an act of the
94
Chickasaw Nation withdrawing citizenship from the plaintiff s wife). Ibid.
95
An act in relation to marriage between white men and Indian women, 25 Stat 392, cap 818 (1888).
96 97
29 Stat 321, 339, cap 398 (1896). 18 Stat 449, cap 4.
tribal membership and to prepare and maintain rolls. This established the principle of
federal determination of tribal membership through enrolment.
The Supreme Court considered the citizenship-determining activity of the
Commission in Stephens v Cherokee Nation (1896). This case highlighted the tremen-
dous degree of interference with tribal definitions of community98 that Congress had
licensed and the consistent refusal of the Indian nations to accept the Commissions
authority. In the end the court upheld the constitutionality of the legislation authoriz-
ing the Commissions activity. The judgment resulted in enforced modification of the
tribes membership rolls as made under their own laws passed in 1875. By the time of the
case there had been over 7,500 applications for registration as citizens, encompassing
some 75,000 people.
Although numerous appeals were made to the Supreme Court, the report described
four only, of which the court examined three in detail.99 The first concerned one
William Stephens who was quarter Indian, being of a white father and half-caste
mother. His mother had left the Cherokee on marriage but returned after being
widowed. The Chief of the Cherokee was convinced of the genuineness of the applica-
tion but the Commission refused it. Robinson, the second applicant, was white and
had been married to a Choctaw woman by whom he had five children. After she died
he remarried a white woman in 1884 and sought enrolment by the Commission. His
application was accepted over the objections of the Choctaw who insisted his evidence
had not demonstrated that he had not forfeited Indian citizenship by abandonment
and remarriage. The fourth applicant, a white male named Wigg, had had a similar
experience. After his Chickasaw wife died he remarried a white woman by whom he
had a daughter. The Commission ordered his enrolment, to which the appeal court
added his wife and daughter. The Supreme Court thus endorsed Congress paramount
authority to intervene in Indian life with its own processes for determining membership
overriding the tribal.
Those cases showed how the linked processes of enrolment and allotment spread-
ing across the United States, first under special legislation for the Five Civilized Tribes
and then generally under the Dawes Act (1887), was compromising tribal authority
to determine membership. The Supreme Court in Stephens had simply determined
the constitutionality of the 1896 statute. It did not address the effectiveness of the
intermarriage laws adopted by the tribes to protect their land base. When it did seven
years later in the Cherokee Intermarriage Cases (1906), it upheld the Cherokee Code
of 1875 but only for intermarriages preceding its enactment.100 The court returned
to the unexplored distinction it had earlier drawn between citizenship and distribu-
tion of property. It endorsed the Court of Claims101 observation that the
idea . . . existed both in the minds and in the laws of the Cherokee people, that citi-
zenship did not necessarily extend to or invest in the citizen a personal or individual
interest in what the [Cherokee] Constitution termed the common propertythe
98
Bethany Berger, After Pocahontas: Indian Women and the Law, 18301934 (1997) 21 American
Indian L Rev 1, 31.
99
174 US 445 (1898), 467, noting that of those numerous appeals 166 were submitted on printed briefs
with oral argument in many of them. The third application involved Jennie Johnston and 112 applicants.
100 101
Red Bird et al v United States 203 US 76 (1906). Whitmire v Cherokee Nation 30 Ct Cl 138, 152.
lands of the Cherokee Nation.102 The court thus reaffirmed its recognition of the
capacity of the tribe to set its own rules of membership.103 This was subject, however,
to any overriding federal legislation such as that contained in the enrolment and
allotment legislation.
The courts confirmed that principle of tribal authority over membership on numerous
occasions during the late nineteenth and early twentieth centuries, but always with that
important, limiting rider.104 On occasions the sovereign capacity of the tribe to deter-
mine its own membership would be stressed, as when the Supreme Court considered
the position of the Delaware Indians residing by agreement with the Cherokee Nation.
The court observed that it was not reasonable to suppose the jurisdictional statute was
intended to authorize the setting aside of [Cherokee] constitutional amendments and
the revision of political action in admitting persons to citizenship in the nation under
authority of its constitution.105 Yet at other moments federal authorities would be
given free licence as in Hitchcock (1906) where a federal regulation requiring Indian
Office approval of any person adopted into an Indian tribe was characterized as an
unreviewable federal power.106
Thus at the very end of the nineteenth century two mechanisms for determination
of tribal membership existed. The formal federal rolls were the most recent form. These
envisioned the time when it would be necessary to ascertain tribal membership in
order to distribute tribal property either as part of the final winding-up of tribal exist-
ence or as part of an ongoing effort to distribute tribal property or income such as the
proceeds of claims judgments.107 The other mechanism was the tribally-driven one,
motored by the customary self-defining practices of the Indian people themselves. The
introduction of formal rolls thus set a gap between legal status and cultural practice
some persons became legally Indian in the sense of being formally enrolled though
not ethnically identifying that way, whereas others culturally identifying as Indians
lacked that status. That gap was not to become such a marked and rigid one as that
which was developing simultaneously in Canada because the context for formal federal
identification was the specific though important one of federal financial apportion-
ment. In other contexts a person could hold the legal status of an Indian irrespective of
formal enrolment, as the case-law on criminal jurisdiction which was well established
by the end of the nineteenth century demonstrated.108
Mixed-blood individuals straddled the Indian and the white world and were not
treated evenly by the law.109 By the end of the nineteenth century it was federal policy
to treat these people as Indians for purposes of entitlement to benefits and enrolment.
The Dawes Act (1887) was explicitly amended so that all children born of a mar-
riage . . . between a white man and an Indian woman that was recognized by the tribe
102 103
203 US 76, 89. Roff v Burney 168 US 218 (1897).
104
Eastern Band of Cherokee Indians v United States (Cherokee Trust Funds) 117 US 288 (1885); Hy-Yu-Tse-
Mil-Kin v Smith 194 US 401 (1903); United States v Choctaw Nation 193 US 115 (1903); Sully v United States
105
195 F 113 (Cir Ct S Dak, 1912). Delaware Indians v Cherokee Nation 193 US 127, 144 (1903).
106
United States ex rel Willis v Hitchcock 205 US 80 (1906).
107
Clinton et al, American Indian Law, 85.
108
For instance State v Howard 74 P 382 (Sup Ct Wash, 1903); State v Phelps 19 P 2nd 319 (Sup Ct
109
Mont, 1933). See Berger, After Pocahontas, 4450.
had the same rights to property as full-blood members.110 Agreements of that period
(which technically now lacked treaty status) often contained provision that the term
Indian included mixed-bloods.111 This inclusive approach was not a product of any
inherent sympathy for the mixed-bloods maternal ties, but reflected the goal of
assimilation towards which these people of all were best placed to tend, if not to lead.
The common law rule was that the child followed the status of the father, but that
was not one that the courts were disposed towards following in the nineteenth century,
particularly where the child lived with the (mothers) tribe. One court applied
the rule used for children of a slave and non-slave by which the child followed the
status of the mother.112 Another simply refused to treat the mixed-blood as either
white or Indian, leaving the individual outside the privileges of both categories.113
However by the end of the century the jurisprudence was consolidating and evolving
the distinction between mixed-blood children living with mother and tribe and those
who had adopted a civilized western lifestyle. The former category retained the
status of Indians whereas the latter were citizens of the United States because they
had been:
. . . born under the sanction of marriage, the father being a white man and a citizen, and main-
taining an independent home; and the mother, although an Indian, is by her marriage, and
adoption of the habits of civilised life, entirely separated from her Indian tribal relatives. The
half-breed children of such parents . . . are . . . entitled to all the rights and privileges, and immu-
nities of other citizens; and they are as distinct from the other class of half-breeds which I have
described as any other civilised people are distinct from savages.114
Entry into the civilized station of life was permanent. A mixed-blood son whose
mother had left the reservation upon marriage but returned with him when he was sev-
enteen, could not become an Indian even where he was adopted by the tribe. The rights
of a white man and citizen could not be deprived by re-incorporation with the tribe.115
The test that the courts reached at this time emphasized the closeness of the fathers
association with the mixed-blood child and how that would be regarded as rubbing off
juridically onto the child.116 This was a view of the father as leading his son from the
savage wilderness into a state of civilized and legal grace. In Re Liquor Election in
Beltrami County (1917) the court considered whether numerous mixed-blood men
were American citizens who could vote under Minnesota law. The court conceded that
the men had reached a degree of civilisation superior to that manifested by many white
men,117 but connection with their fathers had been too weak and distant. They had
not been apprenticed into citizenship.
These cases demonstrated the gulf between Indian status and American citizenship.
The route from one to the other was one-way and clearly predicated upon the adoption
110 111
30 Stat 62, ch 3 (1897). Berger, After Pocahontas, 44 at n 226 gives some examples.
112
United States v Sanders 27 F Cas 950 (D Ark 1847). See Berger, 45.
113
In re Camille 6 F 256 (D Ore 1880), esp 258259. See Berger, 45.
114
United States v Hadley 99 F 437, 438 (D Wash 1900).
115
United States v Higgins 110 F 609 (D Mont 1901).
116
Johnson v Johnsons Administrator 30 Mo 72 (1860), esp 84; Follansbee v Wilbur 44 P 262 (Wash 1896);
First National Bank of Austin v Sharpe 33 SW 676 (Tex Civ App 1896). Discussed by Berger, 4546.
117
163 NW 988 (Minn 1917), 989.
of a civilized lifestyle. The absolute right of an Indian as well as a mixed-blood to leave

tribal life behind was recognized in United States ex rel Standing Bear v Crook (1879).
This case was notable not only for the vigour with which District Judge Dundy insisted
that habeas corpus would lie for the detention of Indians.118 He also said that the
individual Indian possessed the clear and God-given right to withdraw from his tribe
and forever live away from it, as though it had no existence.119 The irony of this affir-
mation of the right of expatriation was that it was exactly the opposite rightthe
maintenance of tribal integritythat Standing Bear had in fact been pursuing.120
American citizenship could be obtained not only by the act of individual Indians
leaving the tribe for civilized life, but on a collective basis through treaty and
Congress. The south-eastern tribes were the first to receive citizenship through treaty
early in the nineteenth century.121 By the middle of the century, however, treaties and
Congressional statutes were making citizenship dependent upon acceptance of allot-
ment of land in severalty as well as demonstration of fitness for civilisation.122 In Elk v
Wilkins (1884) the Supreme Court identified twelve treaties, four statutes, four
judgments, and eight Attorney-General opinions setting this test so that an Indian
could become an American citizen with the right to vote.123 Occasional legislation
enabled particular tribe members, such as those of the Five Civilized Tribes,124 to
apply for citizenship without losing any rights or privileges held as Indians. The prin-
ciple becoming established towards the end of the century was that Indians could
hold dual status as tribe members and as American citizens.
That principle was mostly fully reflected125 in the General (Dawes) Allotment Act
(1887), which contained the most important general means by which an Indian might
become an American citizen before 1924. The Act greatly increased Indian American
citizenship, making it automatic at the end of a twenty-five year period after allotment.
In that period the allotment was held in trust. The Burke Act (1906) removed the trust
period so that an Indian became a citizen immediately upon issuance of a fee patent.
This would issue if the Commissioner for Indian Affairs was satisfied the allottee was
competent and capable of managing his or her affairs ....126 The legislative policy of
making citizenship conditional upon demonstration of de-tribalization was thus
118
A precedent not given the subsequent attention it merited by federal officialssee for a full discussion
of this case and its context Harring, Crow Dogs Case, 73 et seq.
119
25 Fed Cas 665, 669 (1828). Similarly In re Lelah-Puc-Ka-Chee 98 F 429 (Dis Ct, ND Iowa, 1899).
120
Harring, Crow Dogs Case, 78.
121
Treaty with Cherokees, 8 July 1817, article 8 in 7 Stat 156, 159; Treaty with Cherokees, 27 February
1817, article 2 in 7 Stat 195, 196; Treaty with Choctaws, 27 September 1830, article 14 in 7 Stat 333, 335.
122
Treaty with Kickapoo, 28 June 1862, article 3 in 13 Stat 623, 624; Treaty with Seneca (and others),
23 February 1867, article 13 in 15 Stat 513, 516. Naturalisation legislation for the Stockbridge and
Brotherton Tribes of Wisconsin, 3 March 1839, 5 Stat 349, 351, ch 83 (Brotherton); 3 March 1843, ch 101,
7, 5 Stat 645, 647 (Stockbridge).
123
Elk v Wilkins 112 US 94 (1884). See also Oakes v United States 172 F 305 (8th Cir 1909) .
124
Act of 2 May 1890, 43, 26 Stat 89, 99100. Similarly Act of 15 July 1870, 10, 16 Stat 335,
321323 (Minnesota Winnebago).
125
See United States v Nice 241 US 591 (1916), 598; United States v Waller 243 US 452 (1917), 459460
([c]onferring citizenship is not inconsistent with the continuation of such [federal] guardianship); Winton v
Amos 255 US 373 (1921), 392; Tiger v Western Investment Company 221 US 286 (1911), 313.
126
Act of 8 May 1906, ch 2348, 34 Stat 182 (codified at 25 USC, 349 (1988)).
continued.127 That link was stopped however with the Indian Citizenship Act (1924)
which declared that all non-citizen Indians born within the territorial limits of the
United States . . . are hereby. . . citizens of the United States.128 The Act also provided
that American citizenship was not to impair or affect their rights to tribal and other
property. All Indians thus gained citizenship and the right to vote in federal elections,
however the states remained recalcitrant and many refused to extend the franchise to
state elections.129 That reluctance only ended gradually.
(b) The legal status of Canadian Indians

(i) Treaty-making through the nineteenth century and the preservation of the
traditional aboriginal life
From the outset Canadian law, unlike the American, did not recognize the inherent sta-
tus of the First Nations polities. By 1860, when jurisdiction in native affairs was handed
over to the colonial authorities, the treaty and reserves policy was long-established.
After the War of 1812 the orientation of Indian relations turned from military alliance
to the acquisition of their land for settlement and, once that was in train, their civi-
lization. The reserves policy grew from the need to acquire Indian land. During the
nineteenth century major agreements termed treaties were concluded and in their
wake came lesser transactions. These subsequent transactions, termed surrenders,
further whittled down the acreage of land reserved in the principal treaty. Both forms
of relation, treaty and surrender, were essentially real estate transactions in the eyes of
colonial officials. For the First Nations of the Great Lakes, however, the Robinson
treaties certainlyif not the surrenders alsoreflected a political relationship. They
saw them as a direct continuation from and of the established alliances of the eighteenth-
century wars. The adoption of annuities in perpetuity in treaty-making from 1818
established a system easily construed by the First Nations as tributary. It underlined
their sense of political alliance rather than submission. Gradually, with the relentless
push on their land and pressure on their political integrity, they realized that was not
the case.
The colonial authorities of Upper Canada had maintained a programme of treaty-
making predicated upon the implicit recognition of the corporate character of the First
Nations, even if strictly according to their nineteenth-century common law that status
could not be described as sovereign, quasi-sovereign or even corporate. That incon-
sistency never struck officials of the time, nor should one have expected it to given that
Indian relations were conducted by the Governor under the prerogative. Native people
were implicitly regarded as having the corporate capacity to make a cession of land
through their chiefs but none otherwise. None, that is, until the second half of the cen-
tury when a series of Indian Acts began reconstituting the band and its governance.
This legislation made no reference to the treaties or the political relationship with the
127
See United States v Debell 227 F 760 (CA8 SD, 1915).
128
Act of 2 June, 43 Stat 253, ch 233. The substance of this was incorporated into the Nationality Act,
14 October 1949, 54 Stat 1137, 1138, ch 876, 201. This was superseded by Act of 27 June 1952, 66 Stat
163, 235, ch 477, 301.
129
See Jeanette Wolfley, Jim Crow, Indian Style: The Disenfranchisement of Native Americans (1991)
16 American Indian L Rev 181 et seq.
Crown the chiefs believed those compacts represented other than to describe those lacking
treaty relations as irregular bands.130 Meanwhile even as the Indian Acts began recon-
structing de jure the First Nations polities into a series of regularthat is, statutorily
enclosedbands, treaty-making spread westwards.
Treaty-making in the loyalist colonies had begun long before the Indian Acts and was
outlined in the last chapter. For example, in 1836 Sir Francis Bond Head, the Lieutenant-
Governor of Upper Canada entered into the Manitoulin and Saugeen Treaties with the
Ojibwa and Odawa people.131 To give another, in 1850 Commissioner William Robinson
entered into the Lake Huron and Lake Superior Treaties on behalf of the Crown.132 The
Ojibwa chiefs obtained reservations of land as well as an entitlement to a share of the rev-
enue from the exploitation of resources in their territories. They expected that annuities
or cash payments would increase with the revenues. As it was, the annuity in the
Robinson Treaties (such as this one) was only adjusted once in the 1870s, the federal
government later rejecting demands for more on the basis that the English text limited
payments to what Her Majesty may be graciously pleased to order.133 The Crowns
officials were happy to let the signatory chiefs believe they had secured advantageous
terms for their people, realizing that the compact could not be enforced at law. After
Confederation, the so-called numbered treaties were concluded, beginning in 1871 and
concluding in 1921. Through these treaties the fertile prairie land between Manitoba and
the Rocky Mountains became available for white settlement. Initially these treaties were
negotiated as a result of pressure from the First Nations who insisted upon their political
status and refused to countenance settlement without some compact with the Crown in
recognition of their status and rights.134 The numbered treaties followed the established
pattern of the Robinson and earlier treaties. The First Nations surrendered large tracts of
land in return for annual cash payments (annuities) and other benefits such as medical
facilities (the medicine chest clause) and education.
As commented earlier, the Crowns officials regarded these as real estate transactions
but for the First Nations they signified a limited consent to settlement. Certainly they
did not agree to any change to their traditional lifestyle:135
In these negotiations the Indian parties were concerned primarily with retaining and protecting
their lands, their ways of life, and the continuation of their traditional economies based on hunt-
ing, fishing, trapping and gathering. In these areas they were firm and immovable in treaty nego-
tiations. Though they were agreeable to sharing, they were not agreeable to major changes in their
ways of life. Further, they were not asked to agree to this; it was common for Crown representa-
tives to assure treaty nations that their traditional way of life would not be affected by the signing
of the treaty. Indeed, an examination of the reports of the treaty commissioners reveals that these
matters, not the sale of land, occupied most of the discussion during treaty negotiations.
130
The Indian Act 1876, Stat Can 1876 (39 Vict) cap 18, section 3.
131
See Olive Dickason, Canadas First Nations: A History of Founding Peoples from Earliest Times (Toronto:
McClelland & Stewart, 1992) 238. Land cessions prior to this are recounted in Robert Surtees, Land
Cessions, 17631830 map 6.4 at 114.
132
Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories
(Toronto: Belfords, Clarke and Co, 1880; fascimile edition, Coles Publishing Company, 1979) 23.
133
Royal Commission on Aboriginal Peoples (Canada) [RCAP], I, 1, 3.2.
134
John L Tobias, Canadas Subjugation of the Plains Cree, 18791885 (1983) 64 Canadian Historical
135
Review 519. RCAP, I, 1, 4.
Although the extent to which these basic differences and assumptions were communicated
effectively and understood depended on the historical circumstances of those events in partic-
ular locales, on the whole the First Nations did not agree to having their lands taken over by the
Crown, nor did they agree to come under the control of the Crown. Their understanding was
that they would share their lands and resources in a treaty relationship that would respect their
agreement to co-exist as separate nations but linked in a partnership with the Crown.
The erection during the latter half of the nineteenth century of a legal regime to trans-
form Indian culture must be understood against this background wherein the First
Nations understood their treaty relationship would preserve rather than threaten their
national integrity.
(ii) The Indian Acts and the new laws of status

Even whilst prairie First Nations were entering into treaties they believed would main-
tain the customary lifestyle, the consolidating Indian Act of 1876 had set out plainly
the federal governments vision and intention otherwise. Aside from the expectations
that these treaties were sponsoring and which the federal government had no intention
of entertaining, these treaties were also conferring specific rights upon Indians. These
were rights to annuities or treaty money, a financial obligation that the federal govern-
ment was anxious to limit. As early as 1844 the Bagot Commission proposed a census
of all Indians living in Upper Canada so that band lists might be prepared. The
Commission recommended that no Indian could be listed without official approval
and that only those registered should be eligible for treaty payment. By then it could be
seen that unless the category of those entitled to treaty money was curtailed, the
Crowns financial liability would be open-ended and potentially limitless. From the
cost-cutting practice of annuities was born a further cost-cutting measurethe inven-
tion of legal status as a legally defined and limited category of Indians entitled to treaty-
money. That essentially was the distinction between status and non-status Indians in
place by the time of the Indian Act 1876.
Status as an Indian determined not only an entitlement to an annuity but the
enjoyment of an interest in and entitlement to occupy lands reserved for Indians. The
right of Indians to reside upon reserve land had been set out in land protection laws
passed by the Upper and Lower Canada legislatures in 1850.136 The Lower Canada
statute defined an Indian by the simple means of descent and residence among
Indians, whilst the Upper Canada legislation applied to Indians and those who
may be intermarried with Indians. The first federal statute (1868) declared Indians
to be all persons of Indian blood, reputed to belong to a particular tribe, band
or body of Indians and their descendants.137 By the next year, however, the Gradual
Enfranchisement Act (1869) removed status from an Indian woman who married a
non-Indian and also prevented her children from gaining status. This provision had its
origins in Lower Canada legislation of 1851, which excluded non-aboriginal men
married to Indian women. By the mid-century there were a substantial number of
136
An Act for the better protection of the Lands and Property of the Indians in Lower Canada, Statutes
of the Province of Canada 1850, cap 42; An Act for the protection of the Indians in Upper Canada from impo-
sition, and the property occupied or enjoyed by them from trespass and injury, Statutes of the Province of
137
Canada 1850, cap 74. Stat Can 1868, cap 42, section 15.
non-aboriginal men married to aboriginal women and residing on reserves. As in the

United States at the same time, these men brought with them non-submissive ideas and
perspectives that appeared to threaten traditional culture and were alarming tribal
and band governments.138 So the legislative definition of Indian began to follow a racial
and patrilineal line.
The enfranchisement provisions of the Gradual Civilisation Act (1857) applied in
both Canadas and supplemented the new emerging legal rules of Indian status. This
legislation set a process of voluntary enfranchisement by which an Indian could shed
their aboriginal status and obtain the full civic rights of a European. Seen as a gateway
through which individual Indians would pass into the civilized world,139 it was des-
tined to complete failure. The Indian response to the Bagot Commission demon-
strated their collective rejection of any individualization of reserve land.140 So, as in
New Zealand, a plan was devised to circumvent the strength of collective and unified
resistance by spotlighting the individual. Since the individualization of land had been
rejected, the tactic of enfranchisement was to individualize the civil and political
rightsthe legal statusof the aboriginal individual. As it was, only one Indian, Elias
Hill, enfranchised between 1857 and the enactment of the Indian Act in 1876. The
land-based policy of individualization that worked with brutal effectiveness in the
United States and New Zealand thus did not take root when applied personally in
Canada. The Canadian version lacked the element of compulsion applied elsewhere.
In the longer run that resistance enabled Indian reserves in Canada to maintain a terri-
torial and tenurial integrity lost in America (via checkerboard allotment) and New
Zealand (via the fragmented tenancy in common).
The Gradual Civilisation Act established a special board of examiners to award a
male applicant fifty acres of reserve land which he would hold on a life estate, the fee
simple passing to his children (any widow taking a life estate). This statutory land set-
tlement was available to literate Indian males over the age of twenty-one, who the
board determined were of sufficient education, debt-free, and of good moral character.
An individual unable to meet all those criteria could be put in a three-year qualifying
period. This process of voluntary enfranchisement was continued in the federal Indian
Act 1876,141 but, again, uninterested Indian practice made it virtually redundant. The
1876 Act made enfranchisement compulsory for those who obtained a university
degree or became doctors, lawyers, or clergymen.
The Indian Act of 1876 demonstrated the extent to which Indian-ness was being
constructed by law. For instance, the statute correctedor rather clarified, for colonial
practice had never demonstrated consistency on this pointthe common law rule
depriving Indian individuals of legal standing. Section 67 of the Act stated that Indians
could commence proceedings in contract and tort. Actions in respect of their tribal
land were still under the aegis of the Crown.
138
RCAP, I 2, 4.
139
Deputy Superintendent Vankoughnet wrote (to Superintendent General David Mills, 31 December
1876) of the enfranchisement provisions framed as they were, with the object of aiding the Indian to raise
himself from the condition of tutelage and dependence; and of encouraging him to assume the privileges and
responsibilities of full citizenship: Department of Indian Affairs (Canada) Annual Report (1876) 8.
140 141
Milloy, The early Indian Acts, 58. Stat Can 1876, cap 18, sections 8693.
The 1876 Act defined an Indian as any male person of Indian blood reputed to
belong to a particular band, plus their children and wife. It distinguished between
ordinary and irregular bands with whom the Crown had no treaty-relations. The dis-
tinction between treaty and non-treaty Indians was thus added to that between sta-
tus and non-status Indians although status and treaty-entitlement were later regarded
as synonymous. A non-treaty Indian was defined as any person of Indian blood who
is reputed to belong to an irregular band, or who follows the Indian mode of life, even
though such person be only a temporary resident in Canada.142 An Indian woman
marrying any other than an Indian or a non-treaty-Indian also lost Indian status,143 a
provision of controversy for over a century. Similarly Indian women marrying another
Indian became members of the husbands band. The Act also excluded the half-breeds
in Manitoba who [have] shared in the distribution of half-breed lands as well as more
generally the heads of half-breed families (unless already admitted into a treaty).
The enfranchisement procedure still limped in the early twentieth century. Between
1867 and 1920 only one hundred and two Indians enfranchised.144 The procedure was
simplified in 1920 and in 1933, at the prompting of the Department of Indian Affairs,
enfranchisement was made mandatory:145
Previous to the passing of the amendment . . . provisions of the Indian Act with regard to enfran-
chisement could be invoked only upon the application of the Indian himself. This restricted pro-
cedure was not considered satisfactory as it did not provide authority to deal with cases of Indians
in a full self-supporting position well equipped by education and ability to assume the full
responsibility of citizenship, but who for personal reasons and without justification desire to
retain for themselves the protection of the Indian Act.146
Five thousand Indians had enfranchised by 1950, less than five per cent of the status
population. In the years 195969 seven hundred and ninety adults and five hundred
and seventy-five children enfranchised, the numbers declining notably as the decade
wore on.147 At that stage in 1969in the face of the plain failure of enfranchisement
the federal government revised its Indian policy and went to the other extreme. This
policy will be considered in the next chapter.
The revised Indian Act of 1951 overhauled the rules of status, making them vastly
more technical and intricate. Registration or entitlement to register on a roll main-
tained by the Department of Indian Affairs defined Indian status. The Act gave an
exhaustive positive and negative definition of those eligible for registration, including
the now-notorious section 12 excluding those descended from a person who has
received or has been allotted half-breed lands or money scrip and a woman married to
a non-Indian. The Act also set out elaborate procedures for registration and removal of
names from the federal register. The philosophy behind the revised Act was similar to
the post-war egalitarianism that was simultaneously driving the termination policy in
142
Ibid, section 4.
143
Ibid, section 4(c), however her right to receive a treaty annuity remained unless commuted to her at
any time at ten years purchase with the consent of the band.
144
Annual Report of the Department of Indian Affairs 1921, Sessional Paper 27, 13.
145 146
Stat Can 193233, cap 42. Annual Report of the Department of Indian Affairs 1933, 8.
147
Annual Report of the Department of Indian Affairs 197374, 33: five hundred and thirty-eight women
were involuntarily enfranchised under the controversial section 12(1)(b) of the Indian Act, discussed below.
the United States and welfarism in Australia. The special legislative treatment of
native people was regarded as undesirable discrimination that could be tolerated only
in the interim.
The double mother rule of the Indian Act 1951 was a good example of how this
reluctance to maintain special protected categories of persons could produce uneven
and inconsistent results incompatible with actual aboriginal practice. Section 12(1)(a)(iv)
of the Indian Act took Indian status from a child at age twenty-one if their mother or
grandmother had obtained status by marriage to an Indian. The logic of this provision
was that after two generations in which non-Indian women had married into the
community, any children of the second generation should be removed on the basis of
their mixed culture and blood quantum.148 This rule produced problems for women
who were aboriginal by birth and membership of a community whilst lacking Indian
status at law. The Canada-United States border bisects the Mohawk reserve at Akwesasne,
and meant that those living on the American side were not regarded as Indians by
Canadian authorities. Consequently if two generations of women from the American
side married into the Canadian, the double mother rule removed status from the third
generation at the age of 21. That result occurred irrespective of the residence and
prevailing community acceptance of the children as Mohawk.
The revised Indian Act of 1951 rigidified the use of status, creating more categories
and more complicated formulae for legal recognition. The two major classes excluded
from status have a legal history of their own. For the women deprived of status by mar-
rying a non-Indian this history emanated from the Indian Act itself. The Mtis Nation
had already begun a distinct legal history before the revision of the Indian Act,
although that separate-ness was rigidified by their omission. The Indian Act classified
those who would be regarded by the Crown as entitled to special aboriginal status and
so the exclusion of these two classes set the course of their respective legal histories.
Those histories became a tale of the struggle for legal and constitutional recognition.
By the end of the twentieth century the former class had been re-admitted to the Indian
Act, a step as controversial as their historic exclusion. The other class had obtained a
constitutional recognition of their existence in 1982 when Canada rebuilt its constitu-
tional foundations. The condensed histories that follow are a stark demonstration of
the impact that the laws of status have had upon particular segments of aboriginal peo-
ple. They show the gulf that can arise between legal categorization and actual ethnic
practice.
(iii) Indian women marrying non-Indians

The definitions of Indian in the pre-Confederation statutes were based upon descent
and residence, however in 1868 and 1869 the Canadian Parliament imposed a patri-
lineal model. This did not fit with aboriginal practice where some First Nations, the
Iroquois a notable example, fixed identity and authority through the female line. The
Gradual Enfranchisement Act 1869 modified the rule of the earlier Gradual
Civilisation Act wherein Indian status was denied to the non-Indian husband of an
Indian woman. The 1869 statute extended that further by stripping an Indian woman
148
RCAP, IV, 2, 3.1.
and her offspring of Indian status upon marriage to a non-Indian. These women could
continue to receive treaty money or they could accept a lump sum payment. Where
they took the first option an informal red ticket was often issued signifying their enti-
tlement to receive treaty money.149 An Indian woman also lost her own band member-
ship by marriage to an Indian, assuming membership of her spouses band. These
measures brought some protest from Indians but to no avail and were consolidated into
the Indian Act 1876. Women were also denied the right to vote in band elections.150
An Indian womans identity was thus legally merged into the shadow of her husband
and the traditional role of women in aboriginal political life overridden by the
Victorian values of the white legislators. An Indian woman who had married but later
left her non-Indian husband could not retrieve her status and could not live amongst
her people as of right but only through their sufferance. Similarly by a law of 1884 wid-
ows were entitled to one-third of their husbands reserve land held by location ticket
where he died without a will provided she was living with him at the time of his death
and was of good moral character.151
This narrow view of the position of aboriginal women was accentuated by the revi-
sion of the Indian Act in 1951. Status was now focused on the registration of names.
The infamous section 12(1)(b) of the Act now compulsorily enfranchised aboriginal
women marrying a non-status person, depriving them of the right to reside on the
reserve and hold reservation land as well as the forced sale or disposal of whatever
reserve lands they might hold. Children of the marriage also lost status. The new Act
therefore clarified for the worse the legal position of those women holding red tickets
who had remained members of the community by band practice.
Aboriginal practice had found some leeway in the red ticket system but it was now
forced to deal with the more stringent rules introduced in 1951. Over the previous cen-
tury some bands had absorbed the rule that women marrying non-Indians lost mem-
bership rights,152 whereas other groups were more ambivalent in their attitude and
practice. In that sense living with section 12(1)(b) of the Indian Act proved a divisive
experience, creating wounds within First Nations communities that still have not
healed. Between 1955 and 1975, 1,576 men were enfranchised, virtually all voluntar-
ily, whereas 8,537 women (as well as 1,974 of their children) were forcibly enfran-
chised.153 For some bands section 12(1)(b) represented their tradition even though it
was producing injustices in individual cases and had begun as an imposition.
During the 1970s, litigation commenced under Canadas Bill of Rights Act 1960
highlighted the sense of injustice then being felt by aboriginal women legally cut off
from their cultural association. These women commenced litigation without First
Nations support. Indeed the federal government and aboriginal groups actively
opposed them. When the Supreme Court declined intervention they took their case
successfully to the Human Rights Committee in New York whose report resulted in the
reform of the status provisions of the Indian Act in the controversial Bill C-31 (1985).
This litigation will be discussed more fully in later chapters.
149
The practice is discussed in Sawridge Band v Canada [1995] 4 CNLR 121.
150 151
Ibid, section 26(1). Stat Can 1884, cap 27, section 5.
152
Sawridge Band v Canada, above, where the court spoke of Sawridge Band of Alberta as having adopted
153
the tradition ex post facto the Indian Act 1876. RCAP, IV, 2, 3.1.
The net outcome of that reform was to add more categories of status to those already
amassed by statute: new status, old status, on-reserve and off-reserve status, subsec-
tion 6(1) status and subsection 6(2) status, and on and on.154 By the end of the twenti-
eth century a network of laws defined aboriginal status, most operating without
reference to culture, upbringing or identity. But throughout the century since the first
federal Indian legislation, those laws had also enmeshed with actual practice as the con-
troversy over Bill C-31 illustrated. Moreover, the net cast by the legal definition of sta-
tus did not spread widely, for many peoples self-identifying as aboriginal were
excluded. For over a century, these non-status Indians and Mtis consistently
demanded the formal recognition denied them by the federal and provincial Crowns.
Non-status Indians have been included in some federal programmes, but that has been
justified in terms of social welfare rather than any constitutional obligation. The
Crowns law of status, a code erected since Confederation unilaterally by legislation and
without reference to First Nations wishes or practices, has thus determined what native
groups shall have its ear and access to its pocket.
The experience of the Mtis people further highlights that theme of the Crown set-
ting its own rules by creation of a legal beingthe status Indianwho is the sole
object of constitutional obligation.
(iv) The Mtis

That distinctive hybrid of colonialismthe person of mixed raceemerged very early
in the New World, particularly in New France where they acquired a distinct identity.
The two areas where distinct mixed race communities and cultures emerged were west
of the Great Lakes on the prairies and in Labrador.
French church and state officials encouraged interbreeding, believing it would lead to
Christianity and the assimilation of aboriginal people, although they did not count
upon the reverse effectthe white fur trappers turning native. Aboriginal diplomatic
protocol of sealing alliances with marriage also assisted the emergence of mixed race peo-
ple. The mixed race coureurs de bois (forest runners) played a crucial role in the fur trade,
acting as brokers and intermediaries between the First Nations trappers and white mer-
chants. After Britain acquired New France by the Treaty of Paris (1763), settlement
moved westward pushing the French-linked Mtis further into the interior. The British
did not recognize the Mtis as a distinct people, regarding them as unlawful settlers, and
the usual response of the Mtis was to retreat in the face of that encroaching settlement.
By the early nineteenth century, as competition between the French and Montreal-
based North West Company and the Hudsons Bay Company was intensifying, the flow
of Mtis migration had converged at the forks of the Red and Assiniboine Rivers. This
was a key transfer and provisioning point for the fur trade. River-based trading routes
from the Great Lakes and the north intersected at this point. In 1810 the Hudsons Bay
Company proposed the settlement of the Red River Valley by Scottish farmers. This was
the last straw for the Mtis who, organized by the French Company, resisted this intru-
sion at the Battle of Seven Oaks (1816). This victory demonstrated their growing polit-
ical as well as military coherence. In 1821 the two companies merged and though many
154
RCAP, IV, 2, 3.
employees quitted the interior, a kernel of retiring employees remained. The Hudsons
Bay Company sent them to Red River where they merged with the Mtis who by then
were also absorbing the English-speaking half-breeds who had been aligned to the
English company. By the mid-century there was a distinct culture situated primarily
though not exclusivelyin the Red River Valley. Though its origins were of mixed race,
the Mtis people had developed its own language (Michif ), dress, cuisine, music and
dance, and a quasi-military political organization, complete with national flag, bardic
tradition, and its own history.155 This hybridized culture co-existed with the aboriginal,
the boundaries between the cultures being highly porous.
The English had been uninterested in settling Newfoundland and Labrador during
the early seventeenth century, regarding as more important the fishery and settlement
of the more hospitable southern coastline. Some fishermen took up permanent settle-
ment, known by transliteration as the liveyers. These Labrador communities adapted
and survived uninterrupted by any but a trickle of quickly assimilated newcomers well
into the twentieth century.156
By 1869 and after years of wrangling, the imperial government and the Hudsons
Bay Company finally agreed the terms for the surrender of the Companys charter and
the transfer of its territory to the Crown. The Prime Minister of Canada, John A
Macdonald, wanted the western territory known as Ruperts Land for settlement. In
advance of the surrender, surveyors had been dispatched but they met Mtis resistance.
The Mtis formed a provisional government under Louis Riel Jr and sent a delegation
to Ottawa to negotiate the terms of the areas entry into Canada.157 The Mtis insisted
they had land rights in the prairie region eastward of the Rockies that had to be recog-
nized in any constitutional framework. The Manitoba Actregarded by Riel and his
colleagues as a virtual treaty158was the outcome. This statute was also validated by
imperial legislation (1871159).
The Manitoba Act and the oral promises given to Riel involved full provincial status
for Manitoba, guarantees of the French language and Roman Catholic schools and a
general amnesty for those who had participated in the resistance and formed the pro-
visional government. The Act also established a system by which grants of landor
taking scrip as it became knownwere to be made to individual Mtis. Section 31 of
the Act allowed for the distribution of 1.4 million acres of land to Mtis children
towards the extinguishment of the Indian title to the lands in the province and, so the
Mtis representative understood, perpetuation of the Mtis communities.160 In retro-
spect, however, the purpose of scrip was much like the individualization of title
155
RCAP, I, 2, 2. Also JS Frideres, Native Peoples in Canada Contemporary Conflicts (3rd edn,
156
Scarborough, Ont: Prentice Hall, 1988) 307. Ibid.
157
Thomas Flanagan, Metis Aboriginal Rights: Some Historical and Contemporary Problems in Boldt
and Long (eds), The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto
Press, 1985) 230, 232238.
158
Thomas Flanagan, Louis Riel and Aboriginal Rights in Getty and Lussier (eds), As Long as the Sun
159
Shines, 247. The British North America Act 1871, 34 & 35 Vict cap 28, section 5.
160
RCAP, IV, 5, 2.1. An Order in Council of 25 April 1871 provided that every half-breed resident in
Manitoba on the date of the transfer of Ruperts Land to Canada (15 July 1870) and every child of such
resident would be entitled to participate in the grants to half-breeds, although an 1873 amendment later
limited the class of children to those of half-breed heads of families.
processes also in train in the United States and New Zealand at this time, being the
dissolution rather than preservation of collective identity.
The 1870 Act only applied to Manitoba and at first its implementation was slow
and half-hearted. After a census the per capita division was set at one hundred and
ninety acres, but it was not until two commissioners were appointed in 1875 to invest-
igate individual claims that movement, though lurching and fitful, began. The com-
missioners increased the entitlement to two hundred and forty acres (1876). The
limitation of the 1870 Act to Manitoba eventually made it necessary for the Canadian
Parliament to pass laws for the public lands in the vast Northwest Territories. The
Dominion Lands Act 1872 made no reference to Mtis rights although it did provide
that land should not be granted until the Indian title had been extinguished.161 In
1879 the Act was amended to permit land grants to Mtis persons living in the
Northwest Territories, but a further six years passed before an Order in Council issued
to implement the provision. The Dominion Lands Act, unlike the Manitoba Act, had
no constitutional stature and simply permitted Canada at its discretion to grant land
to Mtis.
Of the large area of land granted under the Manitoba Act, only a small percentage
ended in Mtis hands. The system in both Manitoba and the North West Territories
was poorly administered with delays, inefficiencies, and fraud being practised upon the
Mtis such that very little land ended in their hands. In 1884, after a buffalo famine,
they rose in rebellion, led by Louis Riel who had returned to Saskatchewan from exile
in Montana.162 In the words of the Prime Minister John A Macdonald, many appar-
ently despairing of ever receiving patents for the lands . . . had disposed of their rights
for a mere song to speculative friends of the Government . . . .163 As a result the
Northwest Half-Breed Scrip Commission (the Street Commission) was established
(1885) to investigate claims and enumerate those born before 15 July 1870 (who took
scrip of $240) and heads of half-breed families ($160).
Scrip was first issued to the bearer on demand, creating a trading frenzy of the type
ruefully described by Macdonald. In that regard there was a direct comparison between
the New Zealand and Mtis situations at this time in that commodification of the com-
munal right into a marketable, individualized one had ruinous effects for both cul-
tures. As scrip circulated, a jurisprudence of its viability and negotiability ran in the
courts for a short while into the early twentieth century.164 In 1899 during the negotiation
of Treaty 8 the large Mtis population of Lesser Slave Lake rejected the offer from
the Half-Breed Scrip Commission of a form designed to protect them from specula-
tors. The scrip on offer was non-transferable and non-negotiable except by proper legal
assignment. The capitulation of the Commissioners to Mtis demand for the freely
tendered variety held by others was defended by the influential Minister of the Interior,
161
Stat Can 1872, cap 23, section 42.
162 163
The Mtis were defeated at Batoche and Riel was tried and executed. Cited in RCAP, above.
164
In the Matter of Thibeaudeau [187583] Man R temp Wood 149 (Man QB); Sutherland v Schultz
(1883) 1 Man R 13 (Man QB); McKilligan v Machar (1886) 3 Man R 418 (Man QB); Re Campbell (1888)
5 Man R 262 (Man QB); Re Mathers (1891) 7 Man R 434 (Man QB); Hardy v Desjarlais; Kerr v Desjarlais
(1892) 8 Man R 550 (Man QB); Robinson v Sutherland (1893) 9 Man R 199 (Man QB); Wright v Battley
(1905) 15 Man R 322 (Man QB); Patterson v Lane (1904) 6 Terr LR 92 (NWT Sup Ct); LHirondelle
(Antoine) v The King (1916) 16 Ex CR 193; LHirondelle (Joseph) v The King (1916) 16 Ex CR 196.
Clifford Sifton,165 although he conceded it probably exceeded . . . instructions. It was

necessary, he said, to pacify the area and to settle the position of half-breeds so that a
treaty proper could then be concluded with them.166
Siftons defensive response revealed how the presence of Mtis had been complicating
treaty-making in the prairies and the acquisition of land for settlement free from
aboriginal title. In 1889 an adhesion to Treaty 6 at Montreal Lake was negotiated for
Canada through separate Treaty and Scrip Commissions, a two-pronged approach that
became used for later numbered treaties. This was a calculated attempt to separate the
Mtis from the Indian claims, especially as there was anxiety amongst Canadian offi-
cials about the influence of the former on the latter. But the permeability of the two cul-
tures meant that the notional separation was less easy to achieve in practice. The treaty
Commissioners, charged with identifying those entitled to join in the benefits of treaty
(notably the distribution of annuities or treaty money), found it difficult to classify
some families and individuals straddling both communities. At Stone Fort, Manitoba,
the treaty Commissioners negotiating what became Treaty 1 had found Mtis living
with the Indian communities and gave them the choice of taking scrip or treaty money.
This pattern followed elsewhere as when the Mtis of Rainy River made an adhesion to
Treaty 3 (the North-West Angle Treaty) in 1875. As a result in Treaties 1 to 6 and 8
some Mtis were allowed to take treaty rather than scrip.
The decision to take scrip or treaty was not an easy one for aboriginal people. This
was a classic situation where state-sponsored measures of ethnically-based resource dis-
tribution and management had a huge impact upon identity practices, forcing choices
and division that otherwise would not have been occurred and the impact of which
would affect later generations.167 In R v Thomas (1891)168 the defendant occupied
Manitoba land that he had purchased himself. From 1871 to 1874 he took treaty
money (under Treaty 2) after the assurance of a treaty Commissioner that it would not
prejudice his private property rights. Once he learnt that taking treaty money left him
with the legal status of an Indianand therefore disabled from owning private
propertyhe returned the money paid to him that year. Subsequently scrip issued to
him as a half-breed born before 15 July 1870 to confirm his status as such and his
capacity to hold property.169 The court confirmed that he had not accepted Indian
status by taking the money in the light of the assurance (which despite its official source
anyway lacked legal consequence) and his return of the 1874 money.
The British North America Act 1867 (Imp) section 91(24) gave the federal
Parliament jurisdiction over Indians, and lands reserved for the Indians. The Indian
165
See DJ Hall, Clifford Sifton and Canadian Indian Administration, 18691905 in Getty and Lussier
(eds), As Long as the Sun Shines and the Water Flows, 123.
166
Parliament of Canada, House of Commons Debates, 14 July 1899, 7513.
167
Members of the Samson Indian Band, Hobbema, Alberta (sub nom Re The Indian Act; Re Samson Indian
Band) (1957) 7 DLR (2d) 745 (Alta DC). The court held as too imprecise an allegation that his fore-bearer
took script [sic scrip] as a ground of protest over band membership in view of the uncertainty of the mean-
ing of fore-bearer and the fact that Indians who took scrip were able to re-establish themselves as band mem-
bers by subsequently returning its value. Also In the Matter of Norman Stone (1956) Sask DC reported in 5
Canadian Native Law Cases 22, where a respected band councillors membership was challenged (unsuccess-
168
fully) on the allegation that his mother had taken scrip. (1891) 2 Ex CR 246.
169
The Indian Act 1886, 43 Vict cap 28 provided in section 13 that no half-breed in Manitoba who has
shared in the distribution of half-breed lands shall be accounted an Indian.
Act 1886 defined Indian as meaning inter alia any male person of Indian blood
reputed to belong to a particular band.170 In R v Howson (1894) the defendant had
been convicted for selling alcohol to an Indian. It was alleged that the purchaser did not
have that legal status, being born of an Indian woman who had married a Frenchman
and lost her status. On the case stated, the judge commented:171
It is intended to apply to a body of men who are the descendents [sic] of the aboriginal inhabit-
ants of the country, who are banded together in tribes or bands, some of whom live on reserves
and receive monies from the Government [sic], some of whom do not. It is notorious that there
are persons in those bands who are not full blooded Indians, who are possessed of Caucasian
blood, in many of them the Caucasian blood very largely predominates, but whose associations,
habits, modes of life, and surroundings generally are essentially Indian, and the intention of the
Legislature is to bring such persons within the provisions and object of the Act, and the definition
is given to the word Indian as aforesaid with that object.
On the facts of this case the person buying the alcohol had been accepted as a band
member and hence was an Indian. The alternative, the judge feared, would be a tire-
some process by which each defendants genealogy was minutely inspected to ensure
they were full- or mixed-blood. The Indian Act did not contemplate that form of
enquiry. The words reputed to in the statute provided facility of proof, that is, that
proof of mere repute that he belonged to a band was sufficient not merely for the pur-
poses of identifying those to whom alcohol could not be sold, but for all the purposes
of the Act.172
Despite the ostensible accommodation of Mtis in opening the prairies for settle-
ment, the federal government always took the view that they did not fall within the
scope of section 91(24) and that it had no constitutional obligations to them. The ges-
tures towards Mtis presence evident in the Numbered Treaty processes and provisions
as well as the Manitoba and Dominion Lands Acts were regarded as political in char-
acter and not motivated by any constitutional responsibility. When the federal govern-
ment transferred ownership of un-granted Crown lands to the Province under the
Natural Resource Transfer Agreements (1930), allowance was made for the right of
Indians to hunt, trap, and fish for food at all seasons of the year on all unoccupied
Crown land and other land to which they have a right of access.173 The provinces
tookand today maintainthe position that this right did not include the Mtis.
In 1981 after sustained lobbying, Mtis were included in the definition of aboriginal
people under section 35(2) of the new Canadian Constitution. Years later as the
century closed, the downstream implications of this recognition remained uncertain.
The Provincial government of Alberta, however, had already broken the pattern of
governmental non-recognition by establishing Mtis settlements on Crown land. These
settlements were established between the World Wars by Provincial legislation and
eight of the twelve still exist. However that was the proverbial exception demonstrating
170 171
The Indian Act 1886, 43 Vict, section 94. (1894) 1 Terr LR 492 (NWT Sup Ct), 494.
172
Other cases on sale of alcohol to Indians being disputed on grounds of half-breed status, see R v
Mellon (1900) 7 CCC 179 (NWT Sup Ct); R v Hughes (1906) 4 WLR 431 (BCC Ct); R v Pickard (1908)
14 CCC 33 (Alta DC); R v Verdi (1914) 23 CCC 47 (NSC Ct).
173
Stat Can 1930 reprinted in RSC 1985, Appendix II, no 26, schedule 1 Manitoba, section 13; schedule
2 Alberta, section 12.
the rule: there remained a substantial number of self-identifying Mtis people in

Canada whose aboriginal status was unclear as a result of that constitutional recogni-
tion. They were not regarded as falling within the definition of Indians and to the
extent that this term opened legal doors (such as entitlement to federal benefits), they
were still outside.
In 1999 Mtis commenced litigation to have the scope of section 35 clarified.174
Whilst that litigation (seeking a declaration of Mtis status under section 35) was still
being fought at the interlocutory stage as this book was completed, the Supreme Court
handed down a unanimous 90 judgment in R v Powley (September 2003). The
respondents were members of the Mtis community near Sault Ste Marie in Ontario
who had been prosecuted under provincial game laws for shooting a moose unlawfully.
In defence they successfully relied upon an aboriginal right to hunt under section 35 of
the Constitution Act 1982. The court indicated that term Mtis in section 35 did not
encompass all individuals with mixed Indian and European heritage; rather, it referred
to distinctive peoples who, in addition to their mixed ancestry, developed their own
customs and recognizable group identity separate from their Indian or Inuit and
European forebears. A Mtis community was a group with a distinctive collective iden-
tity, living together in the same geographical area and sharing a common way of life.
The court identified the purpose of section 35 as being the protection of practices that
were historically important features of these distinctive communities and that persisted
in the present day as integral elements of their Mtis culture.175
The implications of this judgment were still being explored early in 2004.
Newfoundland declared that its Mtis people in Labrador did not qualify according to
the Powley test of community distinctiveness and historical continuity.176 The question
of Mtis constitutional status broached in Powley will become, one can predict with
certainty, an area of increased judicial attention in the future.
(v) The legal status of First Nation polities: life inside the Indian Act177
Although there were increasingly complex rules for individual status, those affecting
the collective political forms were simple and enduring. The basic principle was con-
solidated in the Indian Act 1876 and maintained in the 1951 revision. An aboriginal
group had no legal standing apart from the constituted forms of the Indian Act. The
1876 Act referred to irregular bands with whom treaties were yet to be concluded, but
that irregularity was plainly regarded as provisional and a prelude to the application of
the Act. As with the laws affecting individuals, the legislation constructed a more
174
Statement of claim online at http://www.othermetis.net/Legalmetis/CAPclaim.html. The Federal
Government moved to have the (amended) statement of claim struck out on the grounds that the Congress
of Aboriginal Peoples (a pressure group representing Mtis and non-status Indians) lacked standing; that it
disclosed no cause of action and was a vexatious proceeding. CAP resisted this motion (14 January 2002).
175
[2003] 2 SCR 207 (McLachlin CJ and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour,
LeBel, and Deschamps JJ) (judgment handed down 19 September 2003).
176
Premier stands by commitment that Powley decision applies to Section 35 Mtis in the province
Government of Newfoundland and Labrador, news release, NLIS 4, 5 February 2004 (Executive Council)
in which Premier Danny Williams announced he had received legal advice that the Labrador Mtis failed to
meet the Powley test.
177
See Daugherty and Madill, Indian Government under the Indian Act Legislation (1980).
specific legal regime that maintained the essential predicate of before, namely broad
Crown guardianship over aboriginal peoples and their land. The Indian Act was a code
for the management of Indian affairs but far from disturbing it reinforced that basic
principle of unfettered Crown discretion. It supposed a group of Indiansa band
living on a reserve under the aegis of the government as exercised mostly through a local
official, the Indian agent.
The band constituted through the Indian Act did not initially reflect aboriginal
practice as the accounts of the Numbered Treaty negotiations during the late nine-
teenth century made plain. The signatory nations certainly did not expect the imposi-
tion of a regime like that of the Indian Act. Indeed to them the treaty relationship itself
signalled otherwise, validating rather than dissolving the customary forms of govern-
ance. For a start the Act ignored the national basis of the treaties in favour of the
smaller, more manageable band. In addition, and as its administration in later years
frequently revealed, the application of its provisions ran counter to Treaty undertakings
by the Crown. Consolidated in 1876, the Indian Act represented the legal enclosure of
the regular bands.
The Hawthorn Report (1968) commented on the condition of Indian people in the
last quarter of the nineteenth century as they came under the Indian Act regime:
For the first time, thousands of Indians found themselves living in permanent, sedentary com-
munities with clearly defined spatial and social boundaries. A growing body of formal rules gov-
erning corporate land usage, residential rights, band membership rights, and so on, gave these
mostly quite small communities a legal character and an exclusiveness which stood in marked
contrast to the traditional grouping.178
The assimilationist policy of the Act was pushed aggressively in the last quarter of the
nineteenth century, but after that a sort of bureaucratic inertia or ennui appeared. That
indifference to Indian policy was also a consequence of the fact that by then most of their
land had been acquired through treaty and further whittled down by surrender. Confined
to reservations where, as the experience of the late-nineteenth century had shown, they
resisted assimilation, their condition was no longer as pressing a matter as before.
(a) The elective system Legislation passed soon after Confederation introduced an
elective mode of governance for Indian Act bands (1869).179 The Governor was
empowered to decide what bands would be governed by a three-year elective system
that set out the powers of the elected band council (which in the exercise were subject
to his confirmation). At the time the Deputy Superintendent of Indian Affairs
described this as establishing a responsible for an irresponsible system . . . designed to
pave the way for the establishment of simple municipal institutions.180 As it was, he
had to admit a distinct absence of Indian enthusiasm for the new institutions (the
178
HB Hawthorn (ed), A Survey of the Contemporary Indians of Canada: Economic, Political, Educational
Needs and Policies Part II (Ottawa, 1968) 177.
179
An Act for the gradual enfranchisement of Indians, the better management of Indian affairs and to
extend the provisions of the Act 31st Vic, cap 42, Stat Can 3233 Vict (1869), cap 6, section 10 [the Gradual
Enfranchisement Act 1869].
180
Deputy Superintendent William Spragge to Secretary of State, Joseph Howe, 2 February 1871 in
Department of Indian Affairs (Canada) Annual Report (1870) 4.
Indian mind is in general slow to accept improvements, until much time is consumed
in discussion and reflection181). The system was amplified when the Indian Act of
1876 consolidated and extended earlier post-Confederation legislation. This Act
became the statutory anchor for Indian affairs for nearly a century. It was driven by a
strong policy of assimilation brokered through close bureaucratic watchfulness, as the
enfranchisement and elective provisions both showed.
The legislation for the three-year system was amended numerous times during the
late nineteenth century,182 but fine-tuning did little to improve its fundamental unat-
tractiveness to First Nations. By the late 1890s the exasperation of the Indian affairs
officials was plain. In 1895 the three-year system was extended to numerous bands in
the older Provinces,183 and in 1899 a general Order in Council applied the system to
all bands in these provinces (although the Order was not applied to Treaty 3 bands who
were regarded as insufficiently advanced).184
Meanwhile Superintendent General Sir John A Macdonald reported (1880) the
need for a better system for managing their local affairs than the one which at present
prevails among them.185 The next year he proposed legislative measures . . . for the
establishment of some kind of municipal system among such bands as are found
sufficiently advanced to justify the experiment.186 His subordinate Deputy
Superintendent Vankoughnet supported the new system although his circularizing of
the agents and superintendents drew a mostly (though not entirely) negative response.
The outcome was an alternative elective system, the one-year structure of the Indian
Advancement Act 1884.187 The Act authorized the division of a reserve into sections
(between two and six) with councillors elected to represent each, and the council to exer-
cise municipal powers.188 Vankoughnet insisted the official intention was not to force
bands into accepting the new one-year system (made effective by Order in Council). As
government officials contemplated the appropriateness of the new system for particular
bands in the west and reported to their superior, one sticking point became clear. This
concerned the status of the customary (hereditary) chiefs in the new system and the
related question of treaty rights (which stipulated a specific number of councillors at
odds with the statutory form). In the decade after passage, a few bands took the Indian
Advancement Act one-year system, whilst others declined or were declined. The uptake
was very small and haphazard,189 not helped by the absence of any clear sense of what
181
Ibid.
182
An Act to amend and consolidate the laws respecting Indians, Stat Can 43 Vict (1880) cap 28; An Act
respecting Indians, Rev Stat Can 1886 cap 43; The Indian Act, Stat Can 1894, cap 32; The Indian Act, Stat
Can 1895 cap 35; The Indian Act, Stat Can 1898, cap 34.
183
PAC RG 10, Vol 7920, File 32-1, vol 1 at 1. The order covered 42 bands in Ontario, 6 in Quebec and
seven in New Brunswick: Annual Report (1897) at xxvi.
184
PAC, RG10, Vol 7920, File 32-1, vol 1, 2.
185
Department of Indian Affairs (Canada) Annual Report (1880), 8.
186
Department of Indian Affairs (Canada) Annual Report (1881) at xlviii.
187
For the history of the drafting and passage of this Act, including the consideration of submissions
from Chief Peter Jones of the Mississaugas of the Credit, see Daugherty and Madill, Indian Government,
Part I, ch 2.
188
An Act for conferring certain privileges on the more advanced Bands of the Indians of Canada, with a
view of training them for the exercise of municipal powers, Stat Can 47 Vict (1884).
189
Only nine bands ever came under the Act, six of them in British Columbia.
made a band sufficiently advanced and the similarity to the three-year system. The
three-year and one-year systems were consolidated into a single statute (1906)190 and
the two parallel systems continued until 1951. By the time of the consolidation Indian
Affairs officials were no longer seriously promoting the one-year system.
Although the official policy was that the elective system(s) would not be forced upon
any band, following that line was far from trouble-free. That was especially the case
during the 1890s and early twentieth century when official enthusiasm for and pursuit
of assimilation was at its peak. One official responsible for western Indian affairs,
Hayter Reed, followed a single-minded policy (189098) of eliminating chiefs, head-
men and band councils whom he regarded as impediments to civilization.191 In any
event, in the west a policy had developed during the 1890s by which the Department
condoned elections according to band custom, with the victors being regarded as
government appointees holding tenure on an indefinite term.192
The electoral provisions were not applied uniformly across the country, with agents
improvising and extemporizing as they went. Attempts by bands to introduce or unseat
the elective system were invariably linked to internal factionalism, as with the St Regis
band whose unsuccessful attempt to return to the hereditary system culminated in vio-
lence (1899). Similarly the Warriors Association of the Six Nations pressed for a ref-
erendum on the elective system (190910), pressure the hereditary leaders rejected as
unrepresentative and in breach of their treaty rights. The Department maintained a
position of strict neutrality in this matter and refused to be drawn into the factional-
ism. Overshadowed by World War I, the matter rested until a special Royal Commissioner
(1924), a military man disliking the undisciplined customary system, recommended
application of the one-year system.193 Official neutrality was shed and the elective
system was applied to the Six Nations in 1924.
By the beginning of the twentieth century there were effectively four systems of
band governancethe one-year, three-year, appointment, and hereditary (entirely
customary) systems. These remained until the mid-1940s when active consideration
was given to extending the three-year system into the prairie Provinces, a step that was
not greeted because it ran counter to the Numbered Treaties. In any event, the proposal
was mopped up in the Indian Act revision that brought the 1951 consolidation. This
legislation abandoned the two-track systems and put in a standard three-year structure
as well as giving Indian women voting rights in it.194
The 1951 reorganization of the elective system had considerable impact. At the time
of enactment there were four hundred bands under a customary system, one hundred
and eighty-five with the three-year system and nine with the one-year. By 1971 three
hundred and eighty-four bands had come into the elective system with one hundred
and sixty-nine remaining under custom.195 These figures revealed an apparent reversal
in Indian attitude towards the elective system, but they also masked the considerable
internal turmoil that the change usually produced.
190
An Act respecting Indians, Rev Stat Can 1906, cap 81, sections 172194 (one-year elective system
191
provisions). Daugherty and Madill, Indian Government, Part I, ch 4.
192 193
Ibid ch 5. Ibid.
194
The Indian Act, Stat Can 15 Geo VI (1951), sections 7379.
195
Daugherty and Madill, Indian Government, Part I, ch 6.
(b) Band council powers At Confederation First Nations and their chiefs were not
recognized as holding any inherent legal authority although de facto their lives
continued under the customary system albeit with the increasing protection of
colonial officials. Colonial legislation had given chiefs some by-law powers on
minor police and public health matters subject to the Superintendent-Generals
approval.196 After Confederation and as the promotion of assimilation gathered
steam, federal legislation began to specify the actual powers of chiefs and bands in
more detail. The Gradual Enfranchisement Act 1869 gave elected band councils a
range of powers in matters like public health and comportment, stock trespass, and
the building and maintenance of roads and public buildings.197 The 1876
consolidation maintained those key features, as well as encouraging allotment of
reserve land through the location ticket system (which quickly became a shambles)
and setting out a process for surrenders. It did not give tribal governments any local
enforcement power, a position corrected in 1879.198 This scheme of governance was
intended for the more advanced Indians to the east of Lake Superior but they
mostly rejected it, not liking the supervisory power of the Superintendent-General.
The Indian Act 1880 reflected the more aggressive turn of the assimilation policy by
accentuating the power of the elected band council over chiefs. It also increased the
authority of the Agent. The Act explicitly stated that life (hereditary) chiefs in elective
bands could not exercise the powers of chiefs unless elected.199 The framework estab-
lished in 1880 remained substantially the same until 1951. The parallel system estab-
lished by the Indian Advancement Act 1884 gave the few bands that came inside its
compass slightly larger by-law-making power, notably the capacity to impose taxation
on reserve land and subjection to Ministerial (as opposed to the more cumbersome
Governor in Council) approval. By the 1890s the failure of the Indian Advancement
Act was becoming plain. At that time there was more general debate about the power
of municipal authorities at large, in which respect it was noted that Indian councils
were being given less. The trend, however, was towards increasing officials authority
over bands, even though the eastern First Nations were frequently calling for a looser
rein. Legislation of the mid-1890s increased the Superintendent-Generals role in the
management of Indian estates and reserve land.200 For example in 1894 he obtained
sole authority to decide whether non-Indians could reside on or use reserve lands.201
The elaborate surrender provisions of the Indian Act left little room for bands to pre-
vent Department-sponsored designs upon their land and throughout the century were
applied in such a manner that much reserve land was taken from Indian hands.202
That trend towards a broadening specification of the areas subject to official control
continued in the new century after the 1906 consolidation. As issues arosesuch as
196
See John Tobias, Protection, Civilisation, Assimilation: An Outline History of Canadas Indian
Policy (1976) 4 Western Canadian Journal of Anthropology 13, 1619.
197
The Gradual Enfranchisement Act 1869, sections 11 and 12.
198
An Act to amend the Indian Act, Stat Can 42 Vict (1879) cap 34.
199
An Act to amend and consolidate the laws respecting Indians, Stat Can 43 Vict (1880) cap 28, section 72.
200
An Act to amend the Indian Act, Stat Can 5758 Vict (1894) cap 32: An Act further to amend the
Indian Act, Stat Can 5859 Vict (1895) cap 35; An Act to amend the Indian Act, Stat Can 61 Vict (1898)
cap 34, esp section 70.
201
An Act to further amend the Indian Act, 5758 Vict Stat Can cap 32 (1894), section 2, inserting a new
202
section 21 into the principal Indian Act. Ibid 9.1.
epidemics, fence maintenance, access to uncultivated reserve land for prairie farming
(without a surrender), and dog controllegislation also extended official power.203
The spreading reach of legislation into band life was notable for what it gave official-
dom and withheld from the band itself. The Indian Act was consolidated again in
1927, giving the Superintendent-General greater powers over capital monies and the
power to make nationwide regulations for on-reserve public entertainment (out-
trumping any passed by bands under their repression of intemperance and profligacy
by-law power204). Further amendment in 1936 authorized the superintendent to make
special regulations or apply provincial laws in three areas: game, noxious weeds, and
motor vehicles. During the Depression, the governments approach towards manage-
ment of Indian affairs drifted aimlessly into an ad hoc approach that lasted until the
end of the war.205
It is worth remarking that through this period, statutory amendments and adminis-
trative practices had increased the powers wielded by the Indian Agents over the
reserve. These Agents had been justices of the peace since 1881 and their powers were
extended significantly in 1884.206 Not only could they conduct legal proceedings on
the reserve but a new offence was created of inciting three or more Indians, non-treaty-
Indians, or half-breeds to breach the peace or make threatening demands on a civil
servant. At the time these measures were aimed at the Cree and Mtis people of the
prairies207 and showed the extent to which opposition to governmental control of the
reserve would not be brooked. The same legislation also prohibited the potlatch and
Tamanawas dance, both important cultural ceremonies for western Indians but
regarded with horror by the missionaries. The authority of Indian Agents as justices of
the peace was further enhanced in 1894. In addition the 1936 legislation set out the
supervisory role of the Agent in band council meetings.
After World War II there was considerable public interest in Indian affairs prompted
by the valiant contribution of First Nations (a warrior role matched by the Maori of
New Zealand and Native Americans). Resisting pressure for a Royal Commission, the
government created a Joint Committee of the Senate and House of Commons (1946).
Its report (1948) recommended overhaul of the Indian Act so that bands, incorporated
as municipalities, attained more self-government and finance through the assistance
rather than diktat of the Department.208 The policy remained that of assimilation but
the Joint Committee disapproved of the over-protective route taken by earlier legisla-
tion. It seemed the politicians, like the public, were more impressed by Indians fight-
ing for Anglo civilization than actually participating in it (as by enfranchisement). The
Committee assumed that Indian civilization was almost complete and that some pro-
tective aspects of the Act could be dismantled allowing bands more self-government
203
An Act to Amend the Indian Act, 12 GeoV, Stat Can cap 15 (1914); An Act to amend the Indian Act,
45 GeoV, Stat Can cap 35 (1918).
204
An Act respecting Indians, 6 Edw VII, Stat Can cap 81, section 194(1)(c) (1906). This vague provi-
sion was changed in 1927, giving bands by-law power to deal with disorderly conduct and nuisances as the
original intemperance and profligacy provision was regarded as too vague, although regulations made
under it were deemed valid: An Act respecting Indians, Rev Stat Can cap 81, section 1 (1927).
205
Tobias, Protection, Civilization, Assimilation, 24.
206
An Act to further amend The Indian Act, 1880, Stat Can 1884 cap 27, section 2.
207 208
RCAP, I, 2, 9.4. Special Joint Committee 1948, 186190.
and less governmental interference. There was even Ministerial talk of advanced
reserves becoming fully autonomous.209 Although their goals were opposite, this talk
of giving bands increased authority meshed with the various submissions of First
Nations who asserted their capacity to govern themselves. In the event the Indian Act
of 1951 pruned the Ministers legal powers. These went from the power to initiate
action in seventy-eight sections of the old legislation to twenty in the new, or so one
Senator estimated.210 The Act was designed to reorient the Ministerial power towards
a supervisory role (with ultimate veto), handing the initiative to the band council. Yet
for all that, the Act made scant enabling provision for Indian self-government, a failing
that became more glaring as Indian demand for greater legally-validated autonomy
increased during the 1970s and after.
Although the new Act appealed to many custom bands, the semblance of enhanced
autonomy was not the case. The Hawthorn Report (1967) made a close study of by-
law-making under the 1951 Act and found that only a small number of bands were
active but suffering from the un-streamlined statutory procedures. The majority were
barely using their by-law power. Indeed some consciously maintained their depend-
ence upon the Agent, fearful that their assumption of control would reduce welfare
grants. Hawthorn put it this telling way:211
Many Indians did not perceive their communities as viable bodies . . . and continued to orient
themselves primarily to family, extended kinship or other groupings that either cut across the res-
idential community or were but one of several segments within it . . . Where interest was shown
in local government it was frequently dissipated by the lack of real power to make meaningful
decisions at the local level. With the elaboration of rules and regulations designed to protect
Indian interests, as then defined, very many matters had to be sanctioned by the Indian Affairs
Branch. There was a paucity of important matters about which decisions could be made by
Indians in their communities. Band councils persisted in Indian communities, not because they
were perceived as responding to important local government needs, but because the government
insisted on dealing through them . . .
The provisions of the Indian Act conferred such broad and open discretion on the
Crown that inevitably common law principles of judicial review would be read into the
statutory regime towards the end of the twentieth century as the Indian bands caught
inside it became more self-governing and litigious. But that was a phenomenon of the
late century when common law principles of Crown accountability were in more inter-
ventive mood and were apt to be implanted, however imperfectly and incompletely,
into the administration of the Indian Act. A new political and legal climate had devel-
oped that was far less quiescent and deferential to the executive branchs discretion. The
legal shape of that new age of aboriginal self-determination will be seen later.
Meanwhile for the Canadian Indians the century after Confederation was one in
which their individual status, collective political forms, and everyday life were bounded
and circumscribed by the Indian Acts. Whilst this undoubtedly had a positive shelter-
ing effect, it was also a stymieing one. Small wonder that the Indian attitude towards
209
Daugherty and Madill, Indian Government, Part II, ch 6.
210
Senate Debates 1951, 457, The Indian Bill, 23 May 1951.
211
Hawthorn (ed), A Survey of the Contemporary Indians of Canada (1967) vol 2, 177178.
the Act was decidedly ambivalent. At the beginning of the twenty-first century
although the philosophy of the Act had been thoroughly discredited, it remained in
force, a frail monument to the twilight centurys legalism.
(vi) Canadian Indians and the right to vote

By the mid-1820s, it was clear that the Indians were subjects of the Crown and
amenable to British law. Legislation in Upper and Lower Canada gradually
chipped away at whatever rights subjecthood might have entailed, giving officials
(called Commissioners) considerable powers to protect Indians.212 This legislation
also regulated aboriginal labour, another recurring issue in the history of aboriginal
societies and the common law.
Indians had been unable to vote in the British North American colonies before
Confederation, at which time the right to vote in federal elections was made depend-
ent upon the provincial franchise.213 The Province of Canada gave the vote to those
owning urban and rural property in excess respectively of $300 and $200 in assessed
value.214 The Nova Scotia law required eligible voters to hold a legal estate in land,
something Indian occupiers lacked as legal title to their land was vested in the Crown
as unalienated land.215 The right to vote was thus dependent upon individual land-
ownership and (as in other jurisdictions) excluded the communal tribal title. Indeed,
as noted earlier, the mechanism of enfranchisement was intended to give the Indian
male the vote once he had demonstrated achievement of an appropriate level of
civilization. Federal legislation described earlier in this chapterthe Gradual
Enfranchisement Act (1869)had spoken of an Indian being enfranchised because of
the degree of civilization to which he has attained, and the character for integrity
and sobriety which he bears, making him a safe and suitable person for becoming
a proprietor.216 Individual property ownership and enfranchisement showed that the
Indian may safely be entrusted with the rights of full citizenship.217 The Ontario
Election Act 1876 declared its purpose was to remove doubts. It recognized the right to
vote of those Indians who met the normal property qualification and were enfranchised
or, being unenfranchised, had left the reservation.218 In 1884 unenfranchised off-reserve
Indians were disabled if they participated in the annuities, interest, moneys or rents of
a tribe.219
In 1885 Sir John A Macdonalds Conservative Government established a distinct
federal franchise.220 The franchise would have been extended to Indians who, with
other persons, occupied real property of a value of $150 in rural areas.221 This included
212
Statutes Upper Canada 1839 cap 15; Statutes Canada 1850 cap 74; Statutes Canada 1850 cap 42.
213
British North America Act 1867, section 41.
214
Reprinted Statutes Upper and Lower Canada 1859, cap 6, n 4.
215
Reprinted Statutes Nova Scotia 1851, cap 5, section 1.
216
Act for Gradual Enfranchisement of Indians and Better Management of Indian Affairs, Stat Can
1869, cap 6, section 13.
217
Annual Report of the Department of Interior, Sessional Paper no 8, House of Commons 1875,
quoted in Richard Bartlett, Citizens Minus: Indians and the Right to Vote (1980) 44 Saskatchewan L Rev
218
163, 167. Stat Ont 187576, cap 10, section 4.
219 220
Stat Ont 1884, cap 4, section 12. The Electoral Franchise Act 1885, Stat Can cap 40.
221
See the account of the debates in Bartlett, Citizens Minus 168181.
unenfranchised Indians. Indians themselves were ambivalent to hostile, fearing the

proposed conferral of the federal vote would lead to taxation and municipal control in
derogation of treaty rights. This attitude occurred in the context of the disturbances in
the prairies under Riel and Poundmaker. Under pressure the Prime Minister amended
the Bill disqualifying Indians in Manitoba, Keewatin, and North West Territories, and
soon extended it to British Columbia. In 1889 a new Liberal Government repealed the
federal franchise statute and reverted to the provincial one. This disqualified those
unenfranchised Indians who had qualified under the 1885 federal law. The Dominion
franchise was re-established in 1920 but excluded Indians ordinarily resident on
reserves.222 This was justified because they remained wards of the Government. The
Canadian Citizenship Act 1946223 made all persons born in Canada citizens but the
federal Indian Act still defined a person as an individual other than an Indian. That
definition was repealed in the 1951 revision of the Indian Act224 but this meant little as
the federal franchise had been limited the year before to Indians who had executed a
waiver of their exemption from taxation.225 This was the new ground for refusing the
vote, and as Bartlett notes, a curious inversion of an old constitutional slogan that now
read no representation without taxation.226 That disqualification was not removed until
1960 when Indians finally were given the right to vote in federal elections.227
Meanwhile the state of the Provincial franchise varied across Canada. Ontario legisla-
tion (1876) prohibited Indian residents on a reserve from voting, and later (1884)
also excluded off-reserve Indians in receipt of annuities or treaty money.228 Those
restrictions on unenfranchised Indians were maintained when universal manhood suf-
frage came in 1888.229 In 1908 off-reserve Indians were given the franchise. Quebec
(1915)230 and Prince Edward Island (1913)231 excluded Indians resident on reserves at
the time they introduced manhood suffrage. When it introduced manhood suffrage
New Brunswick (1889) excluded all Indians, wherever resident, a pattern also followed
in the western Provinces.232 At the Second World War, New Brunswick (1944),233
British Columbia (1947)234 and Saskatchewan (1951)235 extended the Provincial fran-
chise to Indians living off the reserve, a belated recognition of the ineffectiveness and
pointlessness of enfranchisement as the major determinant.
War produced a revision of attitude towards Indians exercising the vote, at least for
those who had served in the armed forces. The veterans of World War I received the
Dominion franchise in 1920,236 with most of the Provinces gradually following suit,
some not until after the next great war. Indian servicemen in World War II237 and the
Korean War238 also got the vote, again with most of the Provinces following. Alberta
222
Dominion Elections Act, Stat Can 1920 cap 46, section 29(1).
223 224
Stat Can 1946 cap 15. Stat Can 1951 cap 29, section 2.
225 226
Stat Can 1950 cap 35, section 1. Bartlett, Citizens Minus, 190.
227 228
Stat Can 1960 cap 7, section 1. Stat Ont 18756 cap 10, section 4.
229 230 231
Stat Ont 1888 cap 4, section 7. Stat Ont 1915 cap 17, section 5. Stat PEI 1913.
232
Alberta Election Act, Stat Alta 1909 cap 3, section 10(4); British Columbia Election Act, Stat BC
1875 cap 2, section 1; The Manitoba Election Act, Stat Man 1886 cap 29, section 12; Saskatchewan
233
Elections Act, Stat Sask 1908 cap 2, section 11. Stat NB 1944 cap 8, section 34.
234 235
Stat BC 1947 cap 28. Stat Sask 1951 cap 3, section 29(b).
236 237
Stat Can 1920 cap 46, section 29. Stat Can 1948 cap 46.
238
Stat Can 1951 cap 35, section 1.
and Quebec never acknowledged war service as qualifying Indians for the provincial
vote.239 After the war some ProvincesBritish Columbia (1949),240 Manitoba
(1952),241 and Ontario (1954)242removed all electoral disqualification of Indians,
steps that anticipated (and precipitated) the federal measure. The remaining Provinces
followed in 1963, except for Quebec, which took this step in 1969.243
The esquimaux were denied the vote by federal legislation in 1934,244 but that was
removed in 1950, ostensibly because they were not on reserves and therefore were not
legally regarded as wards.
(c) The legal status of Maori

(i) Collective political forms
Notoriously the Wi Parata judgment (1877) denied the Maori tribes an original as well
as subsisting sovereign status. Indeed, it went further and denied any (past or present)
legal status whatsoever to Maori forms of collective political organization.245 However,
the high profile of Maori collective forms was an inescapable fact of life in nineteenth-
century New Zealand. A clear pattern of Crown-tribe relations was established during
the early years of the New Zealand colony. As in the other jurisdictions, the North
American especially, this pattern was conducted on a quasi-diplomatic basis where
aboriginal protocol played an important role. Again, the Crown may have purported
to hold the sovereignty over the tribes, but its officials dealt with the tribes as though
their independence remained. That pattern changed, of course, towards the end of the
nineteenth century when all jurisdictions attacked the tribalism they had been happy
to work through, and with, when relations were on a more even footing. In
New Zealand, as in North America, tribal leaders were recognized as having the capacity
to bind their people to a land cession to the government. Tribal capacity would be
recognized when it suited governmental ends. In America the doctrine of residual
sovereignty explained that willingness. In the British North American and New Zealand
colonies from the mid-nineteenth century it was a matter at the Crowns discretion as
legal ward of its tribal subjects.
This fact of Maori political organization, through the highly fluid forms of iwi
(tribe) and hapu (sub-tribe), continued always to be a not inconsiderable fact of
New Zealand political life, even when Maori culture seemed at its lowest ebb. Although
the configuration of those political forms was highly fluid, Maori tribalism (if one takes
that term compendiously to span both the iwi and hapu) dominated their culture as
always. The refusal legally to recognize or organize that tribalism, indeed the eager legal
attempts to suppress it, hardly of itself produced any such result. Indeed, that tribalism
thrived outside legalism. When collective Maori action was poured into constraining
legal pots as in the statutory regimes of 1900 and 1945, the outcome was eventually
lame. Maori political forms were so dynamic, responsive and agile that they defied the
stasis of legalism or appropriated its outward form and surrounded it by their more
dynamic customary forms. Moreover, the very geography of New Zealand, in contrast
239
See the discussion in Bartlett, Citizens Minus, 184186.
240 241 242
Stat BC 1949 cap 19. Stat Man 1952 cap 18. Stat Ont 1954 cap 25.
243 244
Bartlett, Citizens Minus, 193. Stat Can 1934 cap 51.
245
Wi Parata v The Bishop of Wellington (1877) 3 NZ Jur (OS) SC 77.
to the huge continental reaches of the other jurisdictions, meant that an out of sight,
out of mind reservation approach of neglect was never feasible. For all its low points
(and there were many of those), Maori relations with the government never quite
reached the level of national irrelevance of North America and, most especially,
Australia.
If anything the experience of colonialism accentuated the iwi (overarching tribe) of
Maori society and left the hapu (sub-tribe) in softer focus.246 The King Movement that
emerged in the central North Island during the 1850s was a calculated attempt by
Maori to reconstitute that tribalism into a confederate form, counterbalancing the
mana of the Crown with that of the Maori King. The Movement deliberately sought to
use the tribal chief s veto as a means of halting land sales that already were showing their
ruinous potential. If chiefs could bind the tribe to a sale, it was justifiably reasoned they
could likewise refuse to bind their people. But that was an inversion that colonial
politicians, anxious for land for settlement, could not stomach. Though there was a
clear mid-century drift in emphasis towards iwi authority away from the sub-tribe,
Maori politics were also highly contestative and this was a quality that colonial author-
ities were able to exploit. Realizing that this growing and consolidating tribalism would
impede settlement, colonial authorities deliberately and controversially set about
short-circuiting that veto by negotiating directly with the sub-chiefs who actually
occupied the land. The mana of the sub-chief was stressed at cost to that of the tribal
ariki (paramount chief ). The colonial officials deliberate snubbing and discounting of
the arikis veto of land sales was a posture that would culminate in war. These hostili-
ties confirmed in colonial authorities minds the need to dissolve the tribalism of Maori
society. In the late 1870s, the period of the Wi Parata judgment, the central North
Island remained King Country, a region where the Crowns writ could not run and
wherein quasi-diplomatic politics were still practised. That state of affairs was regarded
as a challenge to the authority of the Crown and was hardly likely to receive the
endorsement of the Chief Justice by any legal recognition of residual tribal status.
Moreover the de-tribalizing mechanism of the Native Land Acts of 1865 and 1873 was
by then well in train, as Maori customary title was being transmuted into freehold title.
There had been occasional statutory recognition247 of the tribe by the time of the
Wi Parata case, but that was never designed to facilitate collective enterprise. The
machinery of individualization trampled what scant recognition there was of iwi and
hapu. The Native Territorial Rights Act 1858 had provided that upon the application
of any Tribe, Community, or Individuals of the Aboriginal Inhabitants of New Zealand
a title might issue under the hand of the Governor to the Tribe, Community, or
Individuals.248 However little use was made of this provision. The New Zealand
Settlements Act 1863 controversially authorized the confiscation of the land of the
246
There is considerable literature on the respective historical roles and relation of iwi and hapu. It is
agreed that colonialism enhanced the role of the iwi. This literature is discussed in Roger Maaka,
Perceptions, Conceptions and Realities: a study of the tribe in Maori society in the twentieth century (PhD
thesis, University of Canterbury (NZ), 2003) 2959.
247
Occasional statutes such as the Thermal Springs Act 1881 recognized the capacity of tribes to enter
into agreements with the Government. This statute gave effect to an agreement between the Crown and the
248
Ngati Whakaua tribe. The Native Territorial Rights Act 1858, no 80, section 1.
evil-disposed members of the Native race.249 This Act, like the 1858 statute, was
unusual in that it also recognized the existence of tribes. Here, however, the ominous
purpose of the recognition was to enable the confiscation of their land. Similarly the
recognition of the Native Land Act 1873 conflated the definition of tribe to include
hapu, and provided for the memorializing of the owners of a block of land.250 Here,
again, the purpose of recognizing tribe and hapu was to set the legal basis to dissolve it
by individualization of title.251
The Honourable Henry Sewell bluntly described the philosophy behind the Maori
land legislation of the first thirty years of local jurisdictional capacity. He introduced
the Native Land Frauds Prevention Bill to the Legislative Council (1870):
The object of the Native Lands Act was two-fold: to bring the great bulk of the lands in the
Northern Island which belonged to the Maoris, and which, before the passing of the act, were
extra commerciumexcept through the means of the old purchase system, which had entirely
broken down, within the reach of colonisation. The other great object was the detribalisation of
the Maoristo destroy, if it were possible, the principle of communism which ran through the
whole of their institutions, upon which their social system was based, and which stood as a bar-
rier in the way of all attempts to amalgamate the Maori race into our social and political system.
It was hoped by the individualisation of titles to land, giving them the same individual owner-
ship which we ourselves possessed, they would lose their communistic character, and that their
social status would become assimilated to our own.252
As the customary collective title to land was converted to individualized freehold, the
legal recognition of Maori collective political forms was mostly limited to and by that
new tenurial form. Maori became individual owners of a share in freehold land, their
rights being regulated by the opt-in/opt-out mechanisms of the tenancy in common.
This English form of co-ownership of land was structured to deal with a group of free-
willed owners tied by contract rather than a group of Polynesians descended from a com-
mon ancestor. Very soon, Maori politics and practice, as adaptive and dynamic as ever,
reconfigured this tenancy in common inside their customary realm. Maori transplanted
their notion of genealogical descent or whakapapa into the tenancy in common, and
made cultural standingturangawaewaedependent upon the holding of a share in
land. This adaptation led to the culturally significant but administratively crippling phe-
nomenon of severe fragmentation of title. This condition afflicted Maori freehold tenure
throughout the twentieth century with numerous efforts being made to address the prob-
lem, some acceptable to Maori, others less so. Ownership rights in Maori freehold land
thus became a source of turangawaewae and another site of cultural and political activity.
During its early years the Liberal Government (18901911) increased the rate of
land purchases from Maori. A Royal Commission (1891) had been critical of the land
laws, noting their failure to incorporate any recognition of the tribal character of Maori
ownership. Had such provision been made, the difficulties, the frauds, and sufferings,
with their attendant loss and litigation, which have brought about a state of confusion
249
The New Zealand Settlements Act 1863 no 8, preamble and section 2.
250
The Native Land Act, section 47 (providing for the entering onto a memorial of the owners and of
their respective hapu and the proportionate share of each).
251
See Bryan Gilling, Engine of Destruction? An Introduction to the History of the Maori Land Court
252
(1994) 24 Victoria University of Wellington L Rev 115. NZPD 1870, vol IX, 361.
regarding the titles to land, would never have occurred.253 The Commissioners
included James Carroll, MP for Eastern Maori, and WL Rees. Their recommendations
were mostly overlooked, although a special Validation Court was established to rule
upon the many incomplete and disputed land transactions. Crown pre-emption was
also revived (189499), replaying the worst features of its earlier application, particu-
larly amongst the Ngati Porou of the East Coast.254 A major governmental programme
of land acquisition was facilitated by a range of legislation which locked together like
the pieces of a meccano set.255
Maori meanwhile had maintained their autonomous movements as the Liberal
Government put pressure on customary ownership. Indeed one effect of white contact,
especially after Crown sovereignty, had been to enhance the iwi structures that before
had been more fluid, with the hapu the more important pre-contact political unit.256
Their politics highly adaptive, Maori had countered the Crowns legislative sovereignty
not only with their own King but their own Parliaments. These were the broadly based
Kotahitanga Parliament (1892) and the central North Island tribal confederation
Kingitanga Kauhanganui (Great Council) (1894). Also Maori had separate representa-
tion in Parliament since 1867, allowing Hone Heke to introduce a Native Rights Bill
(1894). The Bill proposed a Maori legislature that would deal exclusively with the per-
sonal rights and lands of Maori.257 Inevitably the Bill failed, but it showed Maori deter-
mination to have legal and constitutional frameworks for their own institutions. Maori
based their claim to legislative autonomy upon the Treaty of Waitangi (rangatiratanga)
and section 71 of the New Zealand Constitution Act 1852 which made provision
(though never used) for separate Maori districts in which customary law would run.
Also Maori militancy, which had erupted in physical confrontation in the Urewera
(1895) and Hokianga (1898), was beginning to worry the Liberal Government.
James Carroll, of Irish and Ngati Kahungungu descent, was appointed Native
Minister in 1899 (by which time he was representing a European constituency).
Worried by the rate of alienation during the previous decade and the parlous effect
upon his people, he guided passage of the Maori Lands Administration Act 1900,
which established district land councils with important functions in relation to land.
This optimistic, creative and constructive attempt258 to secure meaningful rights for
Maori land-owners and to stem alienation was effectively undone by a series of statutes
(190406).259 Carroll also steered the Maori Councils Act 1900 through Parliament,
which established district councils to deal with liquor licensing and public health
matters. The councils also acted as agents for Maori to lease their surplus land as an
253
AJHR 1891, G-1 at vii.
254
See GV Butterworth, Maori land legislation: The work of Carroll and Ngata [1985] New Zealand LJ
242249, 244.
255
Tom Brooking, Busting Up the Greatest Estate of All (1992) 26 New Zealand J of History 78, 81.
Brooking notes that the Liberal Government purchased 2.7 million acres of Maori land during the 1890s
and the private sector about 400,000 acres.
256
Angela Ballara, IwiThe dynamics of Maori tribal organisation from c 1769 to c 1945, 234259.
257
Boast, The Law and Maori in Spiller et al, A New Zealand Legal History, 154156.
258
Ibid 158.
259
The Native Land Rating Act 1904, Maori Land Settlement Act 1905, and the Maori Land Settlement
Amendment Act 1906. For discussion see Boast, n 257 above, 158.
alternative to sale; however Maori mistrust meant that this device was not used as much
as Carroll had hoped. That unwillingness brought renewed settler pressure for Crown
purchase to resume and for Maori landlordism to end. Carrolls preferred course was
to make leasing compulsory; however the government decided to return to active land
purchasing (1905260) although some districts (the Tairawhiti, where Wi Pere and
Ngata were political rivals, and Taitokerau of Hone Heke) were spared. The councils
were also given power to investigate land titles through Block Committees whose recom-
mendations they could accept and pass on to the Native Land Court. The 1900 Act
was more successful in this area of title clarification261 than as a limited form of Maori
self-government. In that respect the councils did not attract the customary leaders.
Essentially they bureaucratized Maori communities, enjoying an initial flush of success
when the prospect of office held some attraction to local Maori. However they were
expiring by the end of the decade. Fatigue was a result of under-resourcing, the low-key
(if any) participation of traditional leaders with mana, and the re-centralization of
Maori affairs with the re-establishment of the Native Department (1905).262
After the resumption of Crown purchase in 1905, the Maori politicians Carroll and
Ngata devised and convinced the government to establish the two-man Commission
that became known as the Stout-Ngata Commission (1907), after its two members
(the other being Chief Justice Sir Robert Stout). The Commissions brief included
inquiry into how the existing institutions established amongst Natives and the exist-
ing systems of dealing with Native lands can be best utilised or adopted . . . and to what
extent and what manner they should be modified.263 At least in the expression, the
political mood towards Maori tribalism had been more accepting since the advent of
the Liberal Government (1891), oiled by the efforts of Carroll and Ngata. That toler-
ance rested, however, on the availability of Maori land for settlement, as Carroll learnt
in 1905. The Stout-Ngata Commission operated through 190708 (in which time
Crown pre-emption was halted) and reported its investigation of over 3 million acres
in the North Island. Their recommendations covered almost 1.3 million acres, half of
which they held should be reserved for Maori occupation. It recommended that
400,000 acres of Maori land should be leased, but with the income reserved for the
owners to give them capital to develop their retained lands.264
Meanwhile, towards the end of the nineteenth century, the tangata whenua of the East
Coast of the North Island had pioneered a corporate form of ownership. A well-meaning
white politician, WL Reesthe same whose Commission the Liberal Government
overlookedhad set up a block committee system of land management in this region
to counter the destructive effects of individualization. By a process too complicated to
recount here, this series of initiatives became the East Coast Maori Trust.265 Rees was
260
Maori Land Settlement Act 1905.
261
It was reported to Parliament that by March 1905, 30,710 Maori had obtained their titles through the
Councils for an area of 347,711 acres, whereas only 6,773 surplus acres had been leased, although 100,000
acres were under negotiation: Appendices to the Journal of the House of Representatives [AJHR] 1905, G-8.
See Butterworth, Maori Land Legislation, 244.
262
Roger Maaka, Perceptions, Conceptions and Realities, above, 8084.
263 264
AJHR 1907, G-1, 11. See Butterworth, Maori Land Legislation, 246.
265
See generally AD Ward, The History of the East Coast Maori Trust (unpublished MA (history)
thesis, Victoria University of Wellington, November 1958).
philanthropically inclined enough to see that this method of making a man out of the
Maori would expose him leaderless, to the acquisitive European.266 He figured that the
use of corporate forms of leadership would prevent Maori being exploited and would
enable them to make less pressurized decisions about the management of their land.
Rees scheme was essentially concerned with leadership and effective decision-making
within owner-groups. The format he advocated was one as conducive to land alienation as
group enterprise. In the event, the New Zealand Parliament refused to countenance his
scheme in the East Coast Settlement Bill (1884), but not before Rees had forcefully con-
demned its very gross act of cruelty and bad faith as well as folly for imposing an impractic-
able legal form onto Maori land-ownership. His passionate outburst is lengthy but
prescient in summarizing the character of the legal regime that controlled Maori land for
the next century, a regime that for most of that time was the most important legal mecha-
nism of group status. It also captured enduring issues of legal housing. How could laws be
constructed to accommodate both customary and western legal forms of group enterprise?
I will take one actual case in illustration: A block of land of 4,500 acres is passed through the
Native Land Court. There are found in it 106 owners. This block, we will say, is within a stones
throw of the Gisborne Post Office. How is it possible to deal with this land, or parts of it? No one
man, nor any number less than all, can sell or lease a single acre of it, for no one piece belongs to
one more than another. But let us suppose an impossibility, and say that all consent to cut it up
into lots of from one acre to fifty or a hundred acres would, in truth, be greatly beneficial to the
district. It would be found that practically they could not do it. Then after surveys and wrangl-
ings innumerable, each deed must be signed by every Native, must be interpreted, taken before
the Trust Commissioner, and then before the Native Land Court. Before all these processes were
complete, the expenses of the conveyances would far more than equal the value of the land to be
dealt with. But no such case has ever occurred; nor can the Natives use the land for themselves;
for here again all would have to consent and to be bound, which, in reality, could never happen.
The only way left open is to lease or sell the land as a whole. Here, again, difficulties, delays, vex-
ations, expense and perpetual annoyances are met at every step, until, in nine cases out of ten, the
lessee or purchaser, like Job, curses the day which gave him birth. How easily all this might be
remedied. If the tribal owners were made a quasi-corporate body, with a committee and a seal, all
the difficulties would at once vanish . . . and the worst system that ever existed could, by a dozen
clauses in an Act, be made the best. . . . Let Parliament change the law, and enable them to act, as
they have always used to act, tribally.267
The availability of the corporate form for tribal enterprise was, Rees proceeded, a
matter of legal equality:
If not, then let Parliament if it desires to deal consistently with all, say that all shareholders in
every joint-stock company shall hold the corporate lands in severalty in undivided interestslet
it declare that the corporate property of our towns shall be the property not of the legal entity,
the corporation, but of the individual burgesses; and lastly, let it enact that henceforth all the
public lands of New Zealand shall not belong to the Crown in trust for the people, but that every
man, woman, and child shall be an owner, and no lease, no sale, no contract about one foot of
land, owned by companies, or corporations, or Government shall be valid, until all have joined
in the transaction, or the land has been subdivided.268
266 267
Ward, East Coast Maori Trust, 13. AJHR 1884, Session 2, Paper G2, 3 et seq.
268
Ibid.
Rees scheme failed not only from Parliamentary intransigence. He had also strained
the goodwill of the Maori owners. The Trust was run by a Pakeha Commissioner who,
despite good intent, estranged the Maori owners. Nonetheless the Trust had
. . . retarded alienation, conserved a valuable asset, and permitted the more satisfactory
use of land as a source of income from rents or royalties.269 At the end of the next
century the East Coast remained one of the major areas still in Maori land-ownership.
Despite Rees personal failure, the Native Land Court Act 1894 allowed incorpora-
tion for the purposes of alienation. The Maori Lands Administration Act 1900 per-
mitted it to facilitate transfer to Maori Land Councils on trust. The Maori Land Laws
Amendment Act 1903 had first contemplated incorporation as a means of Maori man-
agement of their freehold land. Incorporation was also applied in other contexts270 and
with the 1909 legislation was put upon a more general and accessible footing.
Ironically Maori incorporations became popular on the East Coast as a result of
resentment to the Trust. With typical canniness and adaptability, Maori did not reject
so much as remould Rees approach in a manner more suited to their needs. At first
these bodies corporate mobilized all the owners in communal labour on the farms.
However they later learned Pakeha techniques and resorted to electing management
committees which directed farm policy and called on the services of paid labour and
paid managers, and the advice of Pakeha accountants and product marketers.271
In the early twentieth century incorporations became closely associated with
Apirana Ngata, a Maori politician whose name has already been mentioned regularly.
Like Carroll, he was a new breed of Maori leader, a law graduate as versed in Anglo-
legalism as Maori culture, and a political conservative, distrustful of the new Ratana
movement, a Maori nationalist and religious movement with strong links with the
Labour party.272 He was a strong advocate of incorporations:
It was necessary on one hand to evolve a system of organising the individuals in the title in such
a way as to stabilise corporate action and legal decisions, and on the other to secure legislative
recognition of the title expressing such an organisation as could be legally offered to a money
lender and on which he could lend. The system is known as the incorporation of native land
owners and is in effect an adaptation of the tribal system, the hierarchy of chiefs being repre-
sented by the Committee of Management. As with the tribe or hierarchy, so with the
Committee, its functions gravitate into the hands of some one capable of satisfying the diverse
elements in the community, while complying with the business requirements of the undertaking.273
These legal regimesthe fragmented tenancy in common and the incorporation
provided new sites for Maori culture and politics which remained based on whakapapa
and land despite the huge losses that had been suffered. At this time Maori remained
mostly in rural communities. Their identity-practices were becoming more complex,
interbreeding with the new imposed legal forms as well as the indigenous adaptations
of Christian religiosity.
269
H Belshaw, Maori Economic Circumstances in ILG Sutherland (ed), The Maori People Today
(Wellington: NZ Institute for International Affairs, 1940) 200.
270
Native Land Settlement Act 1907, section 61; the Maori Land Claims Adjustment Act and Laws
271
Amendment Act 1907, section 28. Ward, East Coast Maori Trust, 93.
272
R Boast et al, Maori Land Law, 9597.
273
Sir A Ngata, Maori Land Settlement in Sutherland (ed), Maori People Today, 96, 139 et seq.
Ngata had worked with New Zealands famous jurist Sir John Salmond in the drafting
of the Native Land Act 1909 which rationalized and streamlined the complex patchwork
of legislation into a coherent form that was to remain substantially intact, though with
modifications grafted on, until 1993. The Act restored the profile of the Native Land
Court, which since the early 1890s had been eclipsed by the Validation Court, Land
Councils and ad hoc bodies like the Stout-Ngata Commission. The Act put incorpora-
tions on a more secure basis274 and provided for the consolidation of interests in Maori
freehold land, already suffering problems of fragmentation of title. It also gave power to
the assembled owners275that is to say, the tenants in commonof Maori freehold
land. These formal meetings became an important new institution where legalism and
custom mixed.276 Assembled owners were given particularly important powers in agree-
ing to alienation, as it was realized individuals who might agree to sell privately would not
dare to do so in public. Ngata carried over some of the 1900 policy in the establishment
of Maori Land Boards277 to act as buffers between European land purchasers and lessees
and the Maori owners. The Boards had to confirm any sale, lease, or mortgage of Maori
land and were given a wide discretion to refuse alienations. Essentially they were the best
compromise that Carroll and Ngata could make between those who wanted a free trade
in Maori lands and those who wanted no land sold at all.278 The Act also provided for
Crown purchase of land through a Native Land Settlement Account,279 showing that the
protection of Maori ownership that was beginning to come into place was still subordinate
to the policy of ensuring the availability of land for settlement.
After 1909 new forms of Maori representation and status were also established by
statute. These mostly related to the ownership and management of what land and
assets remained in Maori ownership. Ngata was Native Minister in the Liberal
Government that took office in 1928, but he was forced to resign in 1934. In office he
established Maori Development Schemes (1929) through which state funds were
made available for Maori farming. Initially recording some success, these regimes280
later became associated with overweening bureaucratic intrusion and control and by
the 1960s were unpopular with Maori.281
Although Ngata and Maori leaders of his era like Pomare and Buck had sought to
regenerate tribalism, their efforts mostly struggled against a prevailing headwind of
governmental hostility. Sir Maui Pomare had pushed for the Native Trustee Act 1920,
which gave the management of Maori reserve land to an independent Native Trustee
who could provide finance for land development. The Minister introducing the Bill
depicted it as furthering the long-standing goal of individualization, saying that it
would take them out, I believe of the communal system, which, in my opinion, is
holding the Maori nation back.282 Ngata, contrariwise, told the House how a sensitive
274 275
Native Land Act 1909, Part XVII. Ibid Part XVIII.
276 277
Kawharu, Maori Land Tenure, 212249. Ibid Part III.
278 279
Butterworth, Maori Land Legislation, at 247. Native Land Act 1909, Part XXIII.
280
From 1953, after the consolidating Maori Affairs Act 1953 they were known as Part XXIV
Development Schemes after their location in the principal Act.
281
PG McHugh, The fragmentation of Maori land (Auckland: Legal Research Foundation, 1980) 2731.
Ngata foresaw some of the difficulties that did in fact eventuate in the administration of the schemes: Maori
Land Settlement, 149150.
282
187 NZPD 967 (Sir WH Herries, the Minister of Native Affairs).
Trustee could provide Maori with finance to develop their land collectively and avoid
those quarrels at which the Pakeha in Maori districts gaze in amazement. Inability to
raise capital on their land to farm it tribally (he wants to herd with his own kind) led
to disputes between members of the same hapu or family. Those, in turn, brought
partitions of land, . . . troublesome litigation, and the frittering away of estates.283 In
this period the legalism of Maori affairs, an area where Ngata towered, concentrated
mostly on land development; however it was the more charismatic spherethe Ratana
Movementthat attracted Maori attention.284
From the 1920s Maori Trust Boards were established on a case-by-case basis to
administer the slight sums of money awarded ostensibly in settlement of historical
claims.285 These Boards were put under a uniform governing parent statute, the Maori
Trust Boards Act 1955. The Act made Trust Boards subject to extensive Ministerial
oversight and audit. Increasing urbanization after World War II, encouraged (though
not necessarily caused) by growing landlessness and impoverishment upon the mar-
ginal, administratively-hampered, remaining freehold land, further complicated
processes of Maori identity and representation.
The war produced an unprecedented effort by Maori, particularly through the
renowned 28th Maori Battalion whose fierce reputation matched that of the Gurkas.
The Battalion was organized on a regional basis that coincided with tribal groupings,
leading to its depiction as a tribalized unit.286 The Ratana MP for Northern Maori,
Paraire Paikea, spearheaded the Maori War Effort Organisation in New Zealand. Under
his leadership a national infrastructure of tribal committees was established. This elab-
orate system of over three hundred committees was not put on a statutory basis and was
all the more effective for that, demonstrating the capacity of Maori to organize and prac-
tise autonomy under traditional leadership and social organization.287 After the war,
however, official attention returned to Maori affairs. Maori urged retention of the struc-
ture they had put in place for the war effort to deliver social and other public services;
however, the Minister indicated that the management of their affairs was returning to
government officials. The Maori Social and Economic Advancement Act 1945 ensued.
283
187 NZPD 974.
284
The church and political movement founded by Tahupotiki Wiremu Ratana had a highly influential
effect on Maori life in the 1920s. Ratana wanted to unite all Maori in one faith, though scholars differ over
the extent to which he was anti-tribal and advocated a pan-Maori movement: Angela Ballara, Ratana,
Tahupotiki Wiremu 18731939, Dictionary of New Zealand Biography, updated 16 December 2003 (online
at http://www.dnzb.govt.nz/).
285
By 1955 the following Trust Boards had been established: Maori Land Amendment and Maori Land
Claims Adjustment Act 1922, section 27 (Arawa District Trust Board); Maori Land Amendment and Maori
Land Claims Adjustment Act 1926, section 16 (Tuwharetoa Maori Trust Board); Maori Purposes Act 1931,
section 49 (Taranaki Maori Trust Board); Waikato-Maniapoto Claims Settlement Act 1946, section 5
(Tainui Maori Trust Board); Ngaitahu Trust Board Act 1946, section 4 (Ngai Tahu Trust Board); Maori
Purposes Act 1949, sections 26 (Whakatohea Maori Trust Board) and 29 (Wairoa Maori Trust Board);
Maori Purposes Act 1950, section 62 (Aorangi Maori Trust Board); Maori Purposes Act 1953, sections 21
(Aupori Maori Trust Board) and 28 (Taitokerau Maori Trust Board).
286
Wira Gardiner, Te Mura O Te Ahi: The Story of the Maori Battalion (Auckland: Reed Books, 1992)
29: It [the Battalion] had little to do with patriotic duty, rather it was the age-old tradition of maintaining the
mana or status of the family, the hapu (subtribe) and the iwi (people).
287
See C Orange, An Exercise in Maori Autonomy: The Rise and Demise of the Maori War Effort
(1987) 21 New Zealand J of History 156172.
The Act established elective local tribal committees and tribal executive committees,
essentially mimicking the war effort structures, but with the government taking a
controlling hand. The tribal executive committee was drawn from representatives at
the local level and given a range of functions, such as the promotion of self-dependence,
thrift, pride of race, and such conduct as shall be conducive to their well-being.288
Interestingly, the executive committee was authorized to control fishing grounds and
to make by-laws for health, sanitation, control of animals, protection of meeting
houses and burial grounds, meetings, trading, and general discipline in their vil-
lages.289 This power was given to Maori villages that had been designated as such by an
executive committee and registered with the Maori Land Court. Maori Wardens were
also established, essentially officers with authority over Maori individuals, particularly
those intoxicated or at the very fringe of sobriety.
The 1945 system was not particularly successful for a variety of reasons but it con-
tinued in force for seventeen years. It replaced an organic and custom-based Maori sys-
tem with a top-down legalistic one vesting controlling authority in officialdom. In
addition, Maori urbanization increased considerably after the war, undermining the
statutory vision of a mainly rural Maori population living in designated villages subject
to a quasi-municipal tribal authority. In 1962, the conservative National Government
established Maori Councils to represent national and regional Maori interests.290 A sys-
tem of national and district councils was put in place, the regions failing to conform to
tribal boundaries. Until this time the only formal pan-Maori organization had been the
Maori Womens Welfare League.
As Maori political activity intensified during the last quarter of the twentieth century,
so did the pulse and profile of these various bodies. Trust Boards led claims for their iwi,
many Maori incorporations flourished (particularly on the East Coast where they had
originated), and the Maori Council became a vigorous defender of pan-Maori interests,
especially in the courts. Those legal entities played inside a complex political world where
whakapapa (genealogy), kaupapa (special purpose), and tikanga (custom) oiled the
dynamics of the iwi and hapu, the extra-legal customary political formations of Maori.
Moreover after 1909 the Maori Land Court became a particularly intensive site
where Pakeha legalism mixed with Maori custom. Before the winds of legal change
started blowing in the era of self-determination, the court took the position that its
jurisdiction was in the nature of that of a guardian of Maori ownership.291 In that
sense the guardianship duties that the Crown had assumed and held under its unre-
viewable prerogative had, by statute, passed to the court. The role of the court in its
earliest incarnation had been that of title individualization, but from 1909 its role
became more tenurial. Whilst historians tend, not always fairly, to depict the
nineteenth-century land laws and court in a negative light,292 by the early twentieth
century the courts role was considerably less malign.
288
The Maori Social and Economic Advancement Act 1945, section 12(a)(ii).
289
Ibid sections 34 and 35.
290
The Maori Welfare Act 1962, sections 17 (national council) and 1416 (district councils).
291
Aotea District Maori Land Board v State Advances [1927] GLR 557, 560; In re Mangatu Nos. 1, 3, and
4 Blocks [1954] NZLR 624, 627.
292
See the warning against that tendency by Boast, Maori Land Law, 5556.
The legal forms of collective Maori representation added to and interacted with
existing customary forms. They provided more sites for a highly dynamic and
improvizational political culture to propagate and engage the settler-state. None of the
legal forms was ever regarded as a comprehensive vehicle for Maori political expression,
a fact indicated by the fluctuating dynamics inside each of them. Usual Maori political
practice, which varied enormously from group to group and region to region, skated
across these legal structures, dipping in and out as political circumstance required and
allowed. In that sense and by the time of the years of anger, Anglo-settler legalism had
added to the portfolio of group identity available to Maori and in many respects mod-
ified it, but certainly never supplanted custom.293 Urbanization after the war and the
weakening of whakapapa as a means of group identity proved as great a problem for
Maori as the landlessness achieved under colour of law.
(ii) The status of individuals as Maori
Maori received special statutory treatment in a range of areas, most especially those
regarding core civic obligations such as registration of births and deaths, education of
children, qualification as electors, census reporting, jury service, marriage ceremony,
and property assessment. These special rules were established from earliest colonial
days, the raft of provisions indicating the wide extent to which Maori were treated dif-
ferentially. The Native Council Act 1863 established a Council to advise the Governor
on native policy and revealed the philosophy of the colonial law-makers. The Council
was to submit for the consideration of the government such measures as appear to the
Council desirable for promoting the civilisation of the Natives; for establishing law and
order amongst them; for preparing them for the exercise of political power; and gener-
ally for promoting the good government and advancement of the native people.294
The colonial legislature thus assumed the wardship duties previously applied through
the Colonial Office and set about defining the aboriginal person as a legal half-being,
shorn of the usual legal and civic rights of a full British subject. This deprivation of
entitlement also set the agenda for the future, which, as the Native Council Act
contemplated, was oriented about their attainment of those rights.
Early colonial ordinances referred to the aboriginal inhabitants of the colony, but
by the 1850s interbreeding necessitated the more careful identification of those sub-
ject to special treatment. From that time, and in contrast to Australia and Canada, the
definition of Maori status always included half-castes.295 Frequently, though not
293
See Ann Sullivan, The Practice of Tribalism in Postcolonial New Zealand (1995) 9 Cultural Studies
294
4360. The Native Council Act 1860, no 43, section 12(2).
295
For instance: the New Zealand Native Reserves Act 1856, section 19; the Native Districts Regulation
Act 1858, section 11; the Native Schools Act 1858, preamble; the Maori Funds Investment Act 1865,
section 2; the Native Lands Act 1865, section 2; the Maori Representation Act 1867, section 2; the Maori
Real Estate Management Act 1867, section 2; the Native Schools Act 1867, section 3; the Native Districts
Road Boards Act 1871, section 2; the Native Grantees Act 1873, section 3; the Native Land Act 1873,
section 3; the Intestate Native Succession Act 1876, section 2; the Native Land Court Act 1880, section 3;
the West Coast Settlement (North Island) Act 1880, section 2; the Native Lands Frauds Prevention Act
1881, section 2; the West Coast Settlement Reserves Act 1881, section 2; the Crown and Native Lands
Rating Act 1881, section 2; the Native Reserves Act 1882, section 2; the Native Land Laws Amendment Act
1883, section 2; the Native Land Administration Act 1886, section 2; the Native Land Court Act 1886,
section 3; the Native Land Act 1888, section 2; the Maori Real Estate Management Act 1888, section 2.
invariably, these half-castes would only hold Maori status if living as a member of
some Native tribe or community.296 Blood and often lifestyle were thus set as the
basis for status. The Native Land Act 1909 fixed the blood percentage approach. This
statute eliminated the lifestyle component, which had been anyway irregularly used,
and made fifty per cent the strict cut-off for status. This meant, effectively, that those
persons with less than fifty per cent blood would not be recognized at law as Maori,
notwithstanding their lifestyle. This cut-off percentage did not affect ownership of
Maori freehold land, in as much as the legislation did not require owners who had
succeeded to shares to qualify legally as Maori. Such a racial bar would have been
incompatible with the very notion of individualization, which we have seen was
regarded as a de-racinated and de-tribalized form of ownership. Maori were handi-
capped in most civic capacities but not in the capacity to own their individualized
shares in land.
The marriage legislation was unusual in that it did not define the aboriginal
inhabitants exempt from its requirements. Until 1951297 Maori individuals were
exempted from certain marriage requirements. The Half-Caste Disability Removal
Act 1860 had legitimated half-caste children where the parents subsequently
married. Doubts had arisen, however, about the status of half-castes298 under the
marriage laws although Maori and clergical practice had been to regard them as
exempt.299 The principle applied by the courts was that where the paternity of the
individual of mixed blood was established, the child took the fathers status. This prin-
ciple was deliberately borrowed by Justice Salmond from federal American Indian law
and applied to the Marriage Act 1880.300 The Native Land Act that he had drafted
years earlier as Solicitor General clarified the law301 but still recognized customary
marriages for the purpose of succession to Maori land.
Besides establishing the strict requirement of at least fifty per cent blood for Maori
status, the Native Land Act 1909 also conferred jurisdiction upon the Native Land
Court to determine if a person was native or not.302 These statutory provisions were a
response to Hakaraia Te Whenua v Bevan (1907)303 which considered the reference to
a person of the Native race of these islands in Rule 552 of the (then) Code of Civil
Procedure. This rule required every summons to a Maori to be accompanied by a
translation. The judge decided that a half-caste, especially one not competent in
English, came under the Code. A further sign of the concern to establish mechanisms
for identifying an individuals status came with section 17 of the Native Land
Amendment Act 1912. This provision allowed a Maori to be declared European by
296
Statutes setting this requirement of residence included the Registration Act 1858, section 32; the Native
Circuit Courts Act 1858, section 41; the Juries Act 1868, section 3; the Education Act 1877, section 10; the
Qualification of Electors Act 1879, section 7; the Arms Act 1880, section 2; the Juries Act 1880, section 2(3);
the Police Offences Act 1884, section 2; the Property Assessment Act 1885, section 2; the Defence Act 1886,
297
section 2; the Juries Act 1908, section 2. The Maori Purposes Act 1951, no 75, section 8.
298
Davies and Stuart v Hickson, Cook and Others (1886) 4 NZLR (CA) 95.
299
Matiu v Monkia Reweti and another (1907) 26 NZLR 642 (SC), 644.
300
Renata Ti Ni v Tuihata Te Awhi and Rotia Hini [1921] NZLR 729 (SC) per Salmond J, citing US v
Ward 42 Fed Rep 320 and Keith v US 58 Pac Rep 507. Federal Indian law was less fixed on this than Salmond
believed: above, text accompanying notes 111116.
301 302
The Native Land Act 1909, sections 190192. Ibid section 24(2).
303
(1907) 27 NZLR 56 (SC in Chambers).
Order in Council. From 1912 to 1931 seventy-six people made that transition, mainly
for conveyancing reasons.304
The fifty per cent blood percentage requirement survived into the early 1950s in the
Birth and Deaths Registration Act 1951 and Electoral Act 1956. The latter statute
divided Maori into three categories distinguished by blood: those more than half
Maori who were required to enrol on the special Maori electorate roll; those less than
half Maori who were to enrol on the general European roll; with the intermediate cat-
egory half-castes being able to choose either. But otherwise from the 1930s onwards
the definition of Maori status had moved away from inflexible percentages to simple
hypodescent. The Maori Housing Act 1935 defined a Maori as a person belonging to
the aboriginal race of New Zealand, and includes a person descended from native.305
This became the favoured statutory definition thereafter306apart from the above
statutes and, inexplicably, the Maori Affairs Act 1953.307 The Hunn Report (1960)
advised retaining the fifty per cent quantum, adding that it might be extended in the
future to three-quarter castes to limit the governments responsibility to Maori. This
was the last, ineffectual gasp of the percentage approach that had truly gone by the time
the 1953 Act was revised in 1993.
By the 1960s most of the civic disabilities that statute had applied to Maori individ-
uals had been removed. Indeed, the political climate after the war was increasingly hos-
tile to any special treatment of aboriginal groups and individuals. That which had been
deniedfull citizenshipwas now shoved aggressively before them. Whereas earlier,
inequality had been used as a stick with which they were legally subdued, in the post-
war climate equality became the new stick with which they were juridically prodded.
By the late 1960s Maorilike aboriginal peoples in the other common law jurisdictions
had had enough.
(d) The legal status of the Australian Aborigine: statutory practice in the
Australian colonies and new federation
Aborigines became objects of specific legal attention during the second half of the nine-
teenth century. Until then the legislation of the Australian colonies had touched upon
matters such as supply of alcohol, firearms, and criminal proceedings,308 but it was not
until the last decades of the century that specific regimes were established that reflected
the distinct policy goals of the colonial legislators. The legal status of Aborigines before
the enactment of those codes was a matter of pure common law, one where the early
nineteenth-century principles of legal disability and Crown protection applied. After
federation and the establishment of the Commonwealth (1901), the former colonies,
reconstituted as States, enacted codes that drew upon the pre-confederation legislation.
304
Toeolesulusulu Salesa, Half-Castes between the Wars: Colonial Categories in New Zealand and
305
Samoa (2000) 34 New Zealand J of History 98. The Maori Housing Act 1935, no 34, section 2.
306
The Maori Purposes Fund Act 193435, no 45, section 2; the Maori Social and Economic
Advancement Act 1945, no 43, section 2; the Maori Soldiers Trust Act 1957, no 29, section 2; the Maori
Trust Boards Act 1955, no 37, section 2.
307
The Maori Affairs Act 1953, no 54, section 2 continued the 1909 definition.
308
An Act to Allow the Aboriginal Natives of New South Wales to be received as Competent Witnesses
in Criminal Cases 1839 (NSW); An Act to Prohibit the Aboriginal Natives of New South Wales from
Having Fire Arms or Ammunition in their Possession without the Permission of a Magistrate 1840 (NSW).
Initially the Commonwealth lacked jurisdiction over Aborigines, and the Australia
Constitution Act (Imp) excluded Aborigines from the reckoning of the numbers of the
population.309 Until 1967 section 52(xxvi) gave the Federal Parliament power to make
laws with respect to the people of any race, other than the aboriginal race in any State,
for whom it is necessary to make special laws. In that year a referendum310 resulted in
the removal of the words other than the aboriginal race in any State, and gave the
Commonwealth competence to pass special laws for Aborigines.311 This meant that the
period with which we are presently concerned involved the legal practice of the various
Australian colonies and, after federation, States rather than the Commonwealth (with
the very important exception of its administration of the Northern Territory after
South Australia handed it over in 1910).
The various statutory codes of the pre-referendum period did not acknowledge any
collective form of Aboriginal organization. None of the statutes recognized the exist-
ence of tribes or chiefs, but took an implicit view of Aborigines as an unorganized
collection of individuals. The sniffy tone of the legislation shows how for over a century
the Australian authorities patronized Aborigines as a very motley and shabby mob,
lacking any political coherence whatsoever. There was never any sustained attempt to
constitute the Aboriginal polity through law even for the purposes of convenience
such as getting their landor control. Thus the tribe of the Chief Justice Marshalls
American Supreme Court, the band of Canadas Indian Act and the re-casting of the
Maori hapu into the tenancy in common of the Native Land Acts had no Australian
counterpart. Aboriginal collectivism was never an issue in Australian law-making in
the way that it was in North America and New Zealand. The Australian Aborigine was
treated legally as a virtual loner and tribalismthe political coherence that made
aboriginal communities such vital forces in nineteenth-century North America and
New Zealandwas never regarded as the great impediment to their civilization. Rather
it was their degraded nature and lifestyle that attracted attention, not the threatening
integrity of their customary political organization, which, so far as colonial eyes could
mostly see, was weak and tenuous.
By the time of Australian federation, Victoria, Queensland, and Western Australia
were the most experienced States so far as special laws for Aborigines were concerned.
These codes were to influence the statutory regimes established in the twentieth century.
(i) Victoria
English people started settling in the Port Phillip region (the vicinity of present-day
Melbourne, then part of New South Wales) in the mid-1830s, an area that was also the
clan gathering site for five distinct language groups of Kooris said to form a confeder-
acy (the Kulin Nation). The adverse effect upon the native population was almost
immediate. In 1835 John Batman and other members of the Port Phillip Association
entered into a treaty with local Dutigalla clans acquiring land, but Governor Bourke
309
Commonwealth of Australia Constitution Act 1900, 63 & 64 Vict cap 12, section 127.
310
Section 128 of the Commonwealth of Australia Act 1900 provides that the Commonwealth
Constitution can only be amended if a proposed alteration is passed by the Federal Parliament and is
approved both by a majority of voters voting and a majority of voters in a majority of States.
311
Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 186 per Gibbs CJ.
disallowed the purchase.312 An Aboriginal Protectorate was established (1838) under

George Augustus Robinson who had recently removed the Tasmanian Aboriginals to
Flinders Island, following a policy (removal) then also popular in the United States and
Canada. At that time there were already three reserves, although they did not last a year
after his appointment. The Protectorate was disbanded on the last day of 1849.
Robinson established five Aboriginal stations, although they did not last beyond 1864.
Victoria, which was separated from New South Wales in 1851, had been the first to
establish a distinct legal regime for its Aborigines. Following the Report of a Select
Committee (1858) the Victorian Parliament appointed a Central Board to Watch over
the Interests of the Aborigines. The first Report of this Board recommended perman-
ent reserves and legislation. That legislation eventuated in 1869 and gave the Board a
statutory basis.313 The Act provided for the appointment of officials to be called local
guardians of aborigines314 and established offences relating to supply of liquor, acquisi-
tion of goods intended for Aborigines, employment, and abduction of Aborigines. It
defined aboriginal to include every aboriginal native of Australia and every aboriginal
half-caste or child of a half-caste, such half-caste habitually associating and living with
aboriginals. The same section added that at the hearing of any case the justice adjudi-
cating may, in the absence of other sufficient evidence, decide on his own view and
judgment whether any person with reference to whom proceedings shall be taken
under this Act is or is not an aboriginal.315
The definition of aboriginal in the 1869 statute incorporated half-castes and their
children leading an Aboriginal lifestyle. The Aborigines Protection Act 1886 (Vic)
took a less encompassing position towards the status of half-castes, becoming known
as the merging the half-castes Act.316 It introduced a programme of protection for
full-blood Aborigines and a vigorous one of assimilation for half-castes. The Act
carefully defined aboriginal as now to exclude half-castes unless they were thirty-
four years of age or older and lived or associated with Aboriginals; if, in the case of a
woman, she was married to an Aboriginal; or, if the individual had been granted a
licence by the Board.317 Those excluded were to be given rations for three years and
the Board took the twilight power to exercise care and oversight in the management
or conditions of half-castes for seven years.318 The expectation was that pure-bred
Aborigines would be kept on stations and reserves where they would die out in a short
time, whilst half-castes would merge into the white community.319 Section 8 was
symptomatic of that rationale, conferring power upon the Board to make regulations
312
He took legal advice from William Burge, barrister, former Attorney-General for Jamaica and a
known expert on colonial law. His opinion (1836), concurred in by Thomas Pemberton and William Follett
can be found in Speech of His Excellency Sir George Gipps, in Council, on Thursday, 9th July, 1840 on the Second
Reading of the Bill for appointing Commissioners to enquire into claims to grants of land in New Zealand
(Sydney: J Tegg and Co, 1840) 1315. The opinion applied the feudal principles of land title identified by
the Marshall Court in Johnson v MIntosh (1823), discussed above, chapter 2.
313
An Act to Provide for the Protection and Management of the Aboriginal Natives of Victoria 1869
(Vic), no 349, section 3, establishing a Board for the protection of aborigines.
314 315 316
Ibid section 4. Ibid section 8. Chester and Galligan, Citizens without rights, 18.
317
Aborigines Protection Act 1886 (Vic), no 912, sections 2 (repealing section 8 of the 1869 statute) and
318
4 (definition). Ibid section 6.
319
Chester and Galligan, Citizens without rights, 1920.
and orders for half-castes, including prescription of the conditions on which half-castes
may obtain . . . under. . . any law now or hereafter to be in force relating to the aliena-
tion or occupation of Crown lands to select acquire hold enjoy and be possessed of
any such Crown lands for any estate or interest therein . . . . As in North America and
New Zealand, it was conceived that the half-caste could be assimilated into the white
community through the experience of individual ownership of land. Unlike the
United States and New Zealand where individualization wreaked havoc with native
tenure, this expectation of the half-castes development did not go beyond mere hope.
It has been argued that this Act with its rigid distinction between the pure Aboriginal
and half-caste was a response to Aboriginal activism, especially on Coranderrk Station
in the 1870s and 1880s where most of the activists had been of mixed descent. It was
also an attempt, the argument runs, to save government money by limiting financial
responsibility to the smaller class of full-blood Aboriginals. However the foundation of
the Boards aggressive policies was laid earlier.320 Whatever its origins, it was certainly
applied with great vehemence and ruthlessness,321 the Board declining responsibility
to the extent of refusing rations to starving half-castes. Mixed race children with
Aboriginal mothers were informed they must leave their community at the age of four-
teen to merge in the outside world. Towards the end of the century half-caste chil-
dren who were orphan or deemed neglected were being removed from their mothers,
a policy that was broadened even further in 1899 when a regulation deleted the previ-
ous requirement of neglect. Regulations set out the conditions upon which half-castes
could be licensed to reside on stations, the precise amount of permissible weekly
rations, the wording of contracts of employment and apprenticeship and marriage.322
However by 1910 the distinction was beginning to collapse as the increasingly impover-
ished and destitute condition of half-castes made official intervention inevitable.
The Aborigines Act 1910 (Vic) empowered the Board to exercise in the case of any
half-caste all or any of the powers conferred on the Board with regard to aboriginals.
Victoria had largely emulated North American aboriginal policy during the nine-
teenth century through a removal and reserves system. By the 1860s there were over
225,000 acres officially reserved for Aborigines. That acreage soon began to shrink con-
siderably, especially after the 1886 merging policy was adopted. When the Board for the
Protection of Aborigines was abolished in 1957 there remained only 4,586 acres at Lake
Tyers and Framlingham. The Aborigines Welfare Board administered Aboriginal affairs
until 1967, when a policy of assimilation was in place. The Ministry of Aboriginal Affairs
administered Aboriginal programmes until 1975. At that time various State functions
were assumed by the relevant departments and responsibility for policy and funding with
respect to Aborigines was transferred by arrangement to the Commonwealth.
(ii) Queensland
In 1876 a Commission of Inquiry was established after reports from Britain of atrocities
against Queensland Aboriginals. The next year, as a result, six reserves were gazetted.
However the Queensland authorities, buckling under white pressure, abolished them
320 321
Ibid. See the discussion ibid 2130.
322
Regulations Relating to Half-Castes of 16 May 1890 (Victorian Government Gazette, 17871788) and
12 September 1890 (Victorian Government Gazette, 37193722).
all by 1885. At that time the pearling industry and Native Police troops were devastating
the Queensland Aboriginal nations, with violence, exploitation, and general lawless-
ness rife. By the end of the century the colonists had effectively appropriated all the
worthwhile coastal and inland territory. At this time Archibald Meston was appointed
Aboriginal Commissioner. He proposed a policy of reserves run preferably by the gov-
ernment (rather than missionaries) in which all the tribal remnants would be gath-
ered. He became the architect of the 1897 Queensland legislation, which rested on his
principles of protection, segregation, and control, combinedat least in the avowal
with self-sufficiency and efficient management. This reflected his fixation with racial
purity,323 although the code he devised was not in its operation324 applied as stringently
to the full-blood/half-caste distinction as the Victorian.325
The Aborigines Protection and Restriction of the Sale of Opium Act 1897 (Qld)
provided a blueprint that was followed in Western Australia (1905), the South
Australia legislation for itself (1911), and the Northern Territory before formal separa-
tion (1910). The Queensland definition of aboriginal gave greater emphasis to
lifestyle than the Victorian code where the sole emphasis had been upon blood. The
Act included in that definition those half-castes living with an aboriginal as wife, hus-
band or child and half-castes otherwise habitually living with or associating with
Aboriginals.326 From 1901 the term aboriginal also included a half-caste child whose
age apparently did not exceed sixteen years.327 Half-castes were defined as being the
offspring of an Aboriginal mother and other than an Aboriginal father.328 The Act pro-
vided for the creation of reserves, appointment of Protectors,329 promulgation of wide-
ranging regulations and the issuing of certificates to half-castes by the Minister
exempting them from the Act.330 Particular provision was made for those matters most
affecting white relations with Aborigines, notably labour, inter-racial sex,331 and the
removal of Aborigines from one district to another.332
Once the Act was in place there commenced the large-scale removal of Aboriginal
peoples to the new reserves.333 Several reserves were established into which the already
devastated Aboriginal communities were uprooted and crammed, including Palm
Island, the notorious penal settlement for miscreant Aboriginals from these reserves. In
1937 a Canberra conference of Native Affairs Department directors had moved
towards the policy of assimilation, but the Queensland Government dug deeper into
323
William Thorpe, Archibald Meston and Aboriginal Legislation in Colonial Queensland (1984) 21
Historical Studies 5267.
324
Regina Ganter and Ros Kidd, The Power of Protectors: Conflicts Surrounding Queenslands 1897
Aboriginal Legislation (1993) 25 Australian Historical Studies 536554.
325
Chester and Galligan, Citizens without rights, 4041.
326
The Aboriginal Protection and Restriction of the Sale of Opium Act 1897, section 4.
327
Aboriginals Protection and Restriction of the Sale of Opium Act 1901 (Qld), section 2.
328
Ibid, section 3.
329
By 1907 twenty-four had been appointed, mostly police officers: Chester and Galligan, Citizens without
330
rights, 41. Ibid sections 3, 6, 31, and 33.
331
Section 9 of the 1901 legislation prohibited marriage of female Aborigines to non-Aborigines unless
permission in writing had been granted by a Protector. Few permits were given under this power: Chester
332
and Galligan, Citizens without rights, 48. Ibid, sections 1217.
333
Thomas Blake, Deported . . . at the Sweet Will of the Government: The Removal of Aborigines to
Reserves in Queensland 18971939 (1988) 22 Aboriginal History 5161.
the out of sight approach. It tightened its segregationist policy through the ticket of
exemption system, which confined Aborigines to reserves unless specifically permitted
otherwise.334 This legislative regime of apartheid remained in place until the early
1980s when international pressure and the effect of the Racial Discrimination Act
(Cth) 1975 dragged Queensland kicking and screaming into the modern era. In
Queensland Aboriginal peoples unluckily under officialdoms ken truly experienced a
terrible century of suppression and confinement.
(iii) Western Australia
In Western Australia an Aborigines Protection Board was established in 1886.
Aboriginals were defined as including every Aboriginal half-caste or child of a half-caste,
such half-caste or child habitually associating and living with Aboriginals. The legisla-
tion made lengthy provision for matters such as those already noted in the Victorian and
Queensland codes, including appointment of Protectors, Aboriginal employment,
reserves, supply of liquor, and removal from reserves. In deference to white sensibilities
the Act also allowed justices of the peace to order the removal of Aborigines found loi-
tering or who were not decently clothed in townships.335 An Aborigines Department
under the control of a responsible Minister replaced the Board in 1897.336 Meanwhile the
Western Australia Constitution Act 1889 had given self-government to the colony.
Section 70 of this Act had rankled colonial politicians by requiring an annual contribu-
tion to the Aborigines Protection Board of 5,000 or one per cent of the colonys revenue,
whichever was the greater. From the start the Western Australia authorities sought to and
eventually succeeded in removing this clause (1897).337 The constitutional devotion of
funds to support Aborigines was not welcome.338
In 1905 a comprehensive Act was passed and remained the principal governing
statute for Aboriginal affairs in Western Australia until the Native Welfare Act 1963
(WA). The statute followed the definitions of aboriginal and half-caste already estab-
lished by the Queensland legislation. The Act maintained the policy of protecting
Aborigines and assimilating the half-caste. Section 8 provided that the Chief Protector
was to be the legal guardian of every aboriginal and half-caste child until the child
attained the age of sixteen years. The distinction also appeared in the laws affecting
employment, with special rules applying to aboriginals, male half-castes under the age
of sixteen, and female half-castes.339 As with its legislative antecedents the breadth of
this legislation was wide and set parameters for other States to imitate or adapt.
(iv) New South Wales
The colonial government of New South Wales appointed a Protector of Aborigines in
1881. A Board for the Protection of Aborigines followed soon after (1883) but was not
334
The 1897 Act was strengthened by Amendment Acts in 1899, 1901, 1928, 1934, 1939, and 1946.
New Protection Acts were passed in 1965 and 1971 still based on the original 1897 template.
335
Aborigines Protection Act 1886 (WA), no 25, section 43.
336
An Act for the Better Protection of the Aboriginal Race of Australia, 1897 (WA) no 5, section 12.
337
An Act to further Amend the Constitution Act of 1889, and for the Better Protection of the
Aboriginal Race of Australia, 1897 (reserved and received the royal assent on 3 February 1898).
338
See Peter Johnstone, The Repeal of Section 70 of the Western Australia Constitution Act 1889:
Aborigines and Governmental Breach of Trust (1989) 19 Western Australia L Rev 318.
339
Ibid, sections 22(1) and 27.
put upon a statutory footing until the passage of the first New South Wales Aborigines
Protection Act (1909). For the most part the colonial government had left Aborigines
to the missionaries, who were given land grants for missions which reverted to the
Crown upon failure. Reserves were established in that manner during the nineteenth
century, numbering twenty-five (3,500 acres) by 1882. The Board quickly increased
the number of reserves, an indication of how it regarded and applied its protective
duties. By 1891 there were seventy-eight reserves covering a little over 22,000 acres.
Under the 1909 statute the Board was charged with managing and regulating the
reserves and with exercising a general supervision and care over all matters affecting the
interests and welfare of Aborigines. Title to the reserves vested in the Board and
empowered it to remove Aborigines for misconduct.340 In its early years (190916) the
Board was chaired by the Inspector General of Police, but that was later passed to a civil
servant.
There was an investigation into Aborigines policy and practice in New South Wales
in 193738. The Report of the Public Service Board (1937) started voicing the policy
of assimilation in preference to that of protection. The growing number of half-castes
accentuated the need, the report said, for proper education and training and adequate
supervision and control of Aborigines. The report agreed there was the antipathy of
the white community to those possessing Aboriginal blood to consider, but did not
believe the associated belief in the indolence and absence of a sense of responsibility
was actually inherent in Aboriginal blood. There was not lacking a good deal of evi-
dence to show that, with proper guidance, encouragement and tuition, a considerable
proportion of the Aboriginal population (as understood under the Act) can and do
become efficient workers in various spheres.341 The Select Committee (NSW) agreed
(1938) that in the case of Aborigines the withholding of old age pensions and other
benefits given other citizens was appropriate. Some matters (such as the franchise) were
for the Commonwealth; however the Committee endorsed the Public Service Board
that although there were numerous Aborigines who might with justification be placed
on an equal footing with the general community. . . their education has not yet reached
the stage where the restrictions [could] be lifted as a general policy, without harmful
effects on the majority.342 The net outcome was a slight change in official disposition,
which now tilted more perceptibly towards the language of assimilation and the re-
titling of the Aborigines Protection to Aborigines Welfare Board. Meanwhile, on
Australia Day (26 January) 1938 over three hundred Aboriginals attended a Day of
Protest in Sydney Town Hall, calling for land rights and equal rights of employment
and other citizens benefits.
That flourish of activity before the war was essentially the last burst of official attention
until 1967 when the Joint Committee upon Aborigines Welfare (NSW) recom-
mended the abolition of the Welfare Board and the creation of an Aboriginal Advisory
Council. The Aborigines Act 1969 (NSW) was passed, hailed by the Minister in
340
Aborigines Protection Act 1909 (NSW), sections 7(d) and (e) and 8.
341
The Report is referred to in Report of the Legislative Council and the Legislative Assembly upon
Aborigines Welfare of the NSW Parliament in [19383940] 7 NSWPP 768. Also extracts in Bain Attwood
and Andrew Markus (eds), The Struggle for Aboriginal Rights: A Documentary History (St Leonards: Allen &
342
Unwin, 1999) 150. Ibid 758.
introducing it as ending the smooth-the-dying-pillow era and bringing in the new

policy of assimilation (that was sweeping other jurisdictions at the same time).
(iv) South Australia

Historically most of the nineteenth-century dispossession and corralling of Aboriginal
people occurred in the southern part of this State in areas close to white settlement. The
northern lands of the Pitjantjatjara had no pastoral potential and were mostly left, after
an area of over 56,000 square kilometres was gazetted as a reserve (1921). Adjacent
areas were set aside around that time in Western Australia and Northern Territory.
South Australia gave the Northern Territory a temporary code in 1910, which was
superseded by the Aboriginals Ordinance (1918), and soon after adopted a code for
itself with the Aborigines Act 1911.
Soon after a Royal Commission was appointed (1913) to inquire into and report
upon the control, organisation and management of institutions . . . set aside for the
benefit of Aborigines. Its report favoured assimilation, but this policy was not officially
adopted until 1951. Meanwhile the legal definitions of Aboriginal were extended in
the Aborigines Act Amendment Act 1939 to include anyone descended from the orig-
inal inhabitants of Australia. The Act allowed the Aborigines Protection Board to
exempt anyone who by reason of their character, standard of intelligence, and devel-
opment are considered capable of living in the general community without supervi-
sion. Those Aboriginals able to integrate into settler society were able to obtain an
exemption certificate enabling them to open a bank account, own land, receive social
security, and purchase alcohol. Crucially, however, these certificate holders could not
reside on reserves, and even visiting their relatives required permission. Others
remained legally subject to the Protectors control and if they wanted to receive social
security they had to leave the reserves and their family.
The South Australia and Northern Territory codes were modelled on the Queensland
one and remained substantially intact until the 1950s when the Commonwealth and
States pursued a new, ostensibly colour-blind policy of welfarism. Ten years after the
foundation of the Commonwealth, all the States had comprehensive codes for the man-
agement of Aboriginal affairs, including the Northern Territory recently separated from
South Australia and put under federal administration.
***
Well into the twentieth century the Australian protection regimes were often combined
with missions (as in the American mid-west of the mid-nineteenth century). This
combination was undoubtedly intended to transform Aboriginal life, but there has
been a growing realization that it also alleviated the condition of some Aborigines lives
and actually saved many Aboriginal communities from physical extinction.343 Rather
than being a rigid, conflict-ridden boundary, the frontier was a more negotiable place
where settler and Aborigine communities interacted in a manner that often meshed
(as much as conflicted with) the cultural tendencies of those involved. The interaction
of Christianity, protectionism, and Aboriginal culture was an adaptive as well as an
343
Bain Attwood, The Paradox of Australian Aboriginal History (1994) 38 Thesis Eleven 118, 124.
antagonistic one.344 Further, studies of the administration of the protection regimes outlined
above showed that very few Aborigines were ever actually living under the Act.345 The
laws were more the blueprint of a regime thought desirable by white policy- and law-
makers than a thoroughgoing expression of how Aboriginal life was being led. One
should not apply a form of legal determinism to their actual effect on the ground, par-
ticularly as that would obscure Aboriginal agency in the management of the encounter
with officialdom and experience of the statutory regime. The protection bureaucracies
were constrained financially, undermined by a range of settler interest groups and
thwarted by the Aborigines themselves. Their impact varied considerably from place to
place.346 Although there was a considerable negative experience of these regimes, they
did not blow entirely ill. Seen from a perspective of Aboriginal agency rather than pas-
sivity, the stations and reserves ensured the survival of some groups, however adulterated
by absorption of Christianity and westernization their lifestyle became.
4. Living in the twilight century

Encirclement by stifling legal regimes was the common experience of aboriginal peo-
ples situation during the twilight century. Assimilation was the settler-states ultimate
goal, but the intensity of its application to particular aboriginal communities was
shaped by a number of factors. At one end of the spectrum the policy of protection
essentially the out of sight, out of mind philosophyshielded the community from
the full brunt of westernization. The isolationist approach was possible so long as there
were great continental interiors that acquisitive white settlers did not eye as their own.
This regime of protection, however, frequently had the same effect as the more aggres-
sive application of assimilation, though like it, the impact and devastation varied from
group to group. The authority of the traditional political structures was undermined,
indeed often replaced, by governmental figures, agents and protectors, whose remit
reached far into everyday life. Inroads into the territorial authority of the tribal nation
compounded that diminishment of tribal authority: treaties in North America (aggrav-
ated by allotment in the United States), usurpation in Australia, and a variety of
processes in New Zealand (purchase, confiscation, and, individualization) left aborig-
inal peoples with considerably reduced land as the nineteenth century closed. As that
happened, law moved in to seal the process begun by the physical marginalization of
tribal peoples. These laws defined their status as aboriginal. It set out the narrow and
stifling compass of their collective capacity, even in the United States where the IRA
forged the inherent sovereignty into boilerplate rigidity.
This legalism was not all-encompassing, for aboriginal groups maintained a cus-
tomary viability notwithstanding the attempt to smooth their dying pillow (to use a
344
The frontier relations model of Henry Reynolds in Frontier: Settlers and Land (Sydney: Allen &
Unwin, 1987), arguing that the conflict was between competing settler (Crown) and Aboriginal sovereignty.
Attwood, ibid, questions this model as too simplistic.
345
Anna Haebich, For Their Own Good: Aborigines and Government in the South West of Western Australia,
19001940 (Nedlands: University of Western Australia Press, 1988), and Andrew Markus, Under the Act
in Bill Gammage and Peter Spearitt (eds), Australians 1938 (Sydney: Fairfax, Syme and Weldon, 1987)
346
4753. Ibid.
phrase frequently applied in that period). Nonetheless most groups perforce found
their customary ways entangled with these legal regimes, making inescapable some
form of engagement and absorption of its demands. Although aboriginal peoples resis-
ted these legal regimes, they could not avoid them either. In all jurisdictionsthough
perhaps Australia to the least extentthis encroaching legalism and governmental
practice under it affected aboriginal identity-practices, the extent and shape varying
from one group to another in jurisdiction, region, and time.347
Moreover these legal regimes were administered in a manner that can only be
described as half-baked. Once the tribal land base was depleted, politicians were
happy to chant the mantra of assimilation, but the under-resourcing of the statutory
schemes and the culture of bureaucratic inertia meant that the much-vaunted policy
goals were not sought with the single-minded fervour that their enshrinement in the
legislation suggested. Sporadic, not sustained, attempts were made to check the abori-
ginal resistance to this intrusive legalism. Some officials were unstintingindividual
agents on particular reserves mostlybut the institutional culture of the settler-state
was predominantly one of indifference. As aboriginal peoples resisted those policies,
officials and lawmakers tinkered, improvised, and shrugged their shoulders. The fact
was that until the period after World War II, assimilation was sought more in the
protestation than the pursuit. For the most part aboriginal peoples were left in a state
of impoverished neglect.
347
For an American discussion see Cornell, The Return of the Native, and for New Zealand see Roger
Maaka, Perceptions, Conceptions and Realities (2003), and Ann Sullivan, The Practice of Tribalism in
Postcolonial New Zealand.

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A Sovereignty of Aboriginal Statusthe Legal Recognition of The Individual and The Group in The Apparent Twilight

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4

A History of Aboriginal Statusthe Legal

Aboriginal Societies and the Common Law. P.G. McHugh.

of customary identity-practices. Yet aboriginal resistance to legal categorization and

implementation of self-determination, yet that emphasis also re-channelled practices

2. Aboriginal status during the apparent twilight

(a) Indian status in the United States

This new complexity in Indian relations was compounded by unilateral Congressional

Reorganisation Act (1936) established criteria for determining the recognition of

(iii) Individual status as an Indian citizen and an American citizen

the breakdown (and reconfiguration) of the religious (Catholic in particular) and

of a civilized lifestyle. The absolute right of an Indian as well as a mixed-blood to leave

(b) The legal status of Canadian Indians

(ii) The Indian Acts and the new laws of status

non-aboriginal men married to aboriginal women and residing on reserves. As in the

(iii) Indian women marrying non-Indians

(iv) The Mtis

Clifford Sifton,165 although he conceded it probably exceeded . . . instructions. It was

the rule: there remained a substantial number of self-identifying Mtis people in

(vi) Canadian Indians and the right to vote

unenfranchised Indians. Indians themselves were ambivalent to hostile, fearing the

(c) The legal status of Maori

disallowed the purchase.312 An Aboriginal Protectorate was established (1838) under

introducing it as ending the smooth-the-dying-pillow era and bringing in the new

(iv) South Australia

4. Living in the twilight century

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