Amy Swiffen, Keith Charry, Hannah Wyile and Kris Millett
This put up is a part of the Indian Act 150 collection
There’s a dangerous provision of the Indian Act that, till lately, has by no means been the item of sustained scholarly scrutiny: Part 141. In drive from 1927 to 1951, this provision made it an offence for Indigenous peoples to boost funds or retain authorized counsel to pursue claims in courtroom with out first looking for written permission from the Superintendent Normal of the Division of Indian Affairs. As a result of little or no is written in regards to the part, it’s typically assumed that it was hardly used. Nonetheless, our analysis reveals that it was utilized in focused methods, and that its historical past gives a window into the broader logic of the Indian Act as an administrative instrument that aimed to manage and diminish Indigenous political authority.
A web page from Canada’s Indian Act displaying Part 141, a provision in drive from 1927 to 1951.
Part 141 was enacted on the finish of March 1927. This was simply previous to a joint committee of the Home of Commons and the Senate issuing its closing report relating to the Allied Tribes of British Columbia’s name for recognition of Indigenous land title.[1] The Allied Tribes, who had been looking for to convey their title claims to the Judicial Committee of the Privy Council,[2] had their claims rejected, with the added suggestion that the federal government impose measures to limit actions that enabled such claims.[3] Each the joint committee’s report and the enactment of Part 141 demonstrated a need to stifle Indigenous peoples’ potential to make use of the Canadian authorized system to problem their dispossession.
Mirroring the joint committee’s language round stopping “mischievous agitation,”[4] Duncan Campbell Scott, the Deputy Superintendent of Indian Affairs on the time, framed the rationale for the supply in fiduciary and paternalistic phrases, presenting it as a measure to guard Indigenous folks from exploitation by leaders and attorneys who had been making the most of them by promising authorized rights that will be not possible to assert.
Archival proof exhibits that, quickly after the legislation was enacted, a Toronto lawyer named Royce McCuaig wrote to Indian Affairs on behalf of Indigenous shoppers looking for readability on the that means of Part 141.[5] What counted as “prosecuting”? Did the legislation apply solely to the graduation of courtroom motion, or additionally to preparatory steps? What info did the federal government require to grant consent? What causes might be used to disclaim permission?
To reply McCuaig’s questions, Scott sought recommendation from Stuart Edwards, the Deputy Minister of Justice. The best way Edwards answered got here to outline the authorized lifetime of the supply, giving the legislation an exceptionally broad scope in 3 ways:[6]
First, Edwards outlined what it meant “to prosecute” a declare as together with any preparatory steps in the direction of a authorized declare. This meant that actions, together with fundraising and gathering proof, would require prior written consent from Indian Affairs. This interpretation departed from the traditional understanding of the time period because the formal graduation of courtroom proceedings, as a Division of Justice staffer famous in a memo on the topic.[7]
Second, Edwards stipulated that these looking for permission beneath Part 141 ought to present a full disclosure of the proposed declare. In observe, this meant laying out the authorized grounds and supporting paperwork earlier than the Division would contemplate consent. This not solely positioned an onerous burden on authorized representatives and anybody looking for to advance a declare, however it additionally gave Indian Affairs advance discover of potential authorized motion and the chance to stop it fully.
Third, Edwards said that the Superintendent Normal of Indian Affairs held absolute discretion to grant or deny consent for any permissions, even when the denial was “unreasonable.”[8] Additional, there was no requirement to offer reasoning, nor was there an avenue for enchantment beneath Part 141. In impact, Indian Affairs grew to become the gatekeeper of Indigenous entry to the courts with out having to justify its choices in any approach.
Letter from Secretary of Indian Affairs to Royce McCuaig, November 8, 1927
In his follow-up letter to McCuaig, Scott justified this distinctive interpretation by presenting the Superintendent Normal of Indian Affairs as a impartial arbiter who may “intelligently” decide which claims had been professional.
On this approach, the Canadian authorities’s interpretation of Part 141 went past regular administrative authority and allowed Indian Affairs the facility to dam Indigenous authorized organizing at its earliest phases. Furthermore, as a result of the supply was framed in fiduciary phrases, this suppression might be represented as benevolent oversight on behalf of Indigenous peoples.
The results of this interpretation could be seen in archival information involving people who had been charged or investigated beneath Part 141. Within the circumstances we’ve discovered thus far, officers focused Indigenous leaders who had been distinguished of their communities and labored to unite completely different nations to help authorized claims, significantly land claims. The division actively characterised such leaders as “agitators,” looking for to discredit organizing efforts as harmful or disingenuous “adventurers who attempt to make a dwelling out of their fellows.”[9]
One attention-grabbing characteristic of the circumstances now we have come throughout is that formal prosecutions had been uncommon, maybe as a result of the division feared the draconian provision wouldn’t face up to authorized scrutiny. In no less than one occasion, the Secretary of Indian Affairs expressed concern that laying costs beneath the supply would possibly backfire, warning {that a} decide “might imagine that the mentioned part places an unwarranted restraint upon the Indians.”[10]
Letter from Secretary of Indian Affairs to Inspector of Indian Companies for Manitoba, April 12, 1935
Because of this, we’ve discovered solely two circumstances the place costs had been laid, and just one by which a conviction was obtained. On the identical time, the archival information present that formal prosecution wasn’t essentially the purpose. Indian Affairs relied on Part 141 to activate surveillance, police, intimidation, and intervention even when it was acknowledged that prosecution wasn’t viable.[11]
Thus, the supply participates in a protracted historical past of surveillance, counterintelligence, and oppression of Indigenous actions—significantly land claims—with out a sturdy authorized foundation. Just like the surveillance of the Pink Energy motion within the Seventies[12] or the suppression of useful resource protests within the 2000s,[13] the first goal of Part 141 was to not prosecute particular felony acts, however somewhat to discourage political organizing outdoors of settler-imposed frameworks by subjecting neighborhood leaders to a regime of surveillance and intimidation, all whereas avoiding the authorized scrutiny of an precise courtroom listening to.
In observe, due to this fact, the message of Part 141 was clear: attempting to handle grievances outdoors of the constrained channels created by the Indian Act would draw the ire of the colonial state.
This historical past reveals that the Indian Act not solely aimed to manipulate Indigenous peoples by means of administration. It additionally sought to manage the circumstances beneath which Indigenous communities may search authorized recommendation and press their very own claims with the last word purpose of chilling and stopping land-based advocacy. In that sense, Part 141 was one expression of a broader settler colonial system, the results of which didn’t finish with its repeal.
Amy Swiffen is a Professor within the Division of Sociology and Anthropology at Concordia College, Monreal, QC.
Keith Cherry is a Postdoctoral Fellow within the College of Regulation at McGill College, Montreal, QC.
Hannah Wyile is an Assistant Professor within the Division of Political Science and World Growth Research at Saint Mary’s College, Halifax, NS.
Kris Millett is an Assistant Professor within the Division of Sociology and Anthropology at Mount Saint Vincent College, Halifax, NS.
This collection was produced throughout the venture Historicizing Our Occasions: Histories of Migration and Local weather within the Digital House, which is supported partially by funding from the Social Sciences and Humanities Analysis Council.
[1] Hamar Foster, “Letting Go the Bone: The Thought of Indian Title in British Columbia, 1849-1927,” in Essays within the Historical past of Canadian Regulation: British Columbia and the Yukon, ed. Hamar Foster and John McLaren (College of Toronto Press for the Osgoode Society for Canadian Authorized Historical past, 1995), 70n15.
[2] Hamar Foster, “‘We wish a robust promise’: The Opposition to Indian Treaties in British Columbia, 1850-1990,” Native Research Evaluate 18, no. 1 (2009): 127.
[3] Canada, Particular Joint Committee of the Senate and the Home of Commons Appointed to Inquire into the Claims
of the Allied Indian Tribes of British Columbia, Report and Proof (King’s Printer, 1927), ix.
[4] Canada, Particular Joint Committee of the Senate and the Home of Commons Appointed to Inquire into the Claims
of the Allied Indian Tribes of British Columbia, Report and Proof (King’s Printer, 1927), ix.
[5] LAC, RG10, quantity 6810, file 470-2-3, Letters from JA Royce McCuaig of Toronto relating to the interpretation of Part 149A on September 7 and September 22, 1927.
[6] LAC, RG10, quantity 6810, file 0470-2-3 v 8, Letter from Secretary of Indian Affairs to Royce McCuaig, November 8, 1927.
[7] LAC, RG13, quantity 2192, file 1927-1501, Memo to Edwards, October 25, 1927.
[8] LAC, RG10, Vol 6810, file 0470-2-3 v 8, Letter from Secretary of Indian Affairs to Royce McCuaig, November 8, 1927.
[9] LAC, RG10, quantity 3211, file 527, 787 Secretary of Indian Affairs to Inspector of Indian Companies for Manitoba A.G. Hamilton, April 12, 1935.
[10] LAC, RG10, quantity 3211, file 527, 787 Secretary of Indian Affairs to Inspector of Indian Companies for Manitoba A.G. Hamilton, April 12, 1935.
[11] For instance, in 1943, the Division of Indian Affairs investigated Wendat Chief Jules Sioui for soliciting funds to pay for journey linked to political advocacy. It concluded that his actions didn’t technically violate Part 141 since they weren’t associated to creating a authorized declare. Nonetheless, the division nonetheless investigated Sioui and tried to discredit him. See LAC, RG10, quantity 3201, File 527,787-4, memo from the Director of Indian Affairs to the Deputy Minister of Justice September 25, 1943
[12] Brett Forester, Ka’nhehsí:io Deer, Marnie Luke & Dave Seglins, “How RCMP spies infiltrated the Seventies Indigenous rights motion,” CBC Information (24 March 2026), on-line https://www.cbc.ca/information/indigenous/rcmp-spies-Seventies-indigenous-rights-9.7134112
[13] Andrew Crosby and Jeffrey Monaghan, Policing indigenous actions: Dissent and the safety state (Fernwood Publishing, 2018).
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