Hi!
I got an A+ in INST 203, and this cheat sheet is what helped me the most for the final. Every term is
marked MUST (know it fully) or SHOULD (know the one line). If you know everything up to the SHOULD
items, you should be in good shape for an A+ on the final.
How I’d use it:
• Cover the right-hand column of each table and try to say the answer before you read it.
• Learn the author table well. On the final, most lost marks come from a missing or wrong author
name, not a wrong idea.
• Read the common mistakes at the end the night before the exam.
Pair this with the answers file. If you can answer all the study questions at the end of each section,
you’re ready for the final.
One more thing: the assignments are marked really hard, especially citations, but the final is marked a
lot more fairly. So don’t get discouraged if your assignment grades aren’t great.
Good luck!
1
,INST 203 Cheat Sheet
Key terms
MUST means learn it completely. SHOULD means know the one-line version. Cover the right-hand
column and try to say the answer before you read it.
Unit 1
Term Meaning
Indian Act (1876) (MUST) The single federal law governing registered Indians since 1876. It gathered earlier
colonial statutes into one act and gave Ottawa control of status, band
membership, reserve land, band elections, wills and schooling. It was amended
repeatedly to ban ceremonies and force enfranchisement. It is still in force today.
Enfranchisement (MUST) The loss of legal Indian status. It happened by application, by earning a degree or
profession, by voting federally before 1960, or automatically when a status woman
married a man without status. The stated purpose was to make Indians into
ordinary citizens. Bill C-31 ended it in 1985.
Status (registered) Indian A person registered, or entitled to be registered, under the Indian Act. Section 2(1)
(MUST) defines an Indian as “a person who pursuant to this Act is registered as an Indian
or is entitled to be registered as an Indian.” It is a legal category, not a cultural or
racial one.
Non-status Indian (MUST) A person of Indian ancestry and culture whom the Crown does not count as an
Indian in law. The category includes people who were enfranchised, women who
married out before 1985, their children, and people removed from the Indian
Register. They keep the identity and lose the rights.
Section 12(1)(b) (MUST) The Indian Act clause that stripped status from any Indian woman who married a
man without status, and from her children. A man who married out kept his status
and passed it to his wife. Lavell and Bedard challenged it in 1973 and lost. Bill C-31
repealed it in 1985.
Bill C-31 (1985) (MUST) The amendment that removed sex discrimination from the Indian Act, ended
enfranchisement, allowed women who married out to be reinstated, and let bands
write their own membership codes. Jamieson warns it did not mean the effects of
117 years of legislative discrimination would magically disappear.
Ethnostatus group (MUST) Waldram’s term for a group whose boundary is drawn by government legislation
rather than by its own members. It is his contrast to Barth’s ethnic group, which is
self-defined. Status Indians and Métis in one northern community can share one
culture and still be two ethnostatus groups.
The colonization process Frideres and Gadacz’s seven-part model: entering another people’s territory;
(MUST) destroying their social and cultural structures; external political control; economic
dependence; poor-quality services; racism; and a colour line. It presents
colonisation as an ongoing process, not a finished historical event.
Collective identity (MUST) The shared sense of belonging a group holds, which individual members draw on
to build a personal identity. Frideres and Gadacz argue the collective must place a
positive value on that identity before an individual can have positive self-esteem.
This is why attacks on the group injure the person.
Victimization (MUST) St. Clair Drake’s concept, quoted by Jamieson. Some people are used as a means
to other people’s ends without their consent, in a system built so it can be
manipulated to their disadvantage. Victims face identity problems, weakened self-
esteem, and a condition that is “essentially one of powerlessness.”
2
,Term Meaning
Apartheid system (MUST) Jenness’s name for the reserve system, which separated Indigenous people from
whites and gave them a special legal status. He calls it “one major cause for
prejudice” and asks what is being done to end a system never intended to endure
more than one or two generations.
Colonialism (Ponting) (MUST) Ponting’s working model, built from Frideres: entry by an outside power,
destruction of the existing culture, external political control, economic
dependence, inferior services, racism, and indirect rule in which non-Indians
govern Indians through “puppet chiefs.” Ponting then tests whether it truly
explains Indian Affairs behaviour.
Declaration of the First Nations The 1980–81 statement that Indigenous rights come from the Creator, not from
(MUST) Canada. It says the Creator gave laws governing all relationships, that those rights
cannot be altered or taken away by any other nation, and that the right to self-
government and self-determination is Creator-given.
Native Women’s Association of The national organisation arguing that sexual equality must come before self-
Canada (MUST) government. Krosenbrink-Gelissen records its position that equality “must
unambiguously and constitutionally stand above Aboriginal self-government.”
Excluded from the First Ministers’ conferences, it lobbied through other
delegations and through provincial and national bodies instead.
Commutation of annuities A one-time cash payment given to a woman who married out, in place of her
(SHOULD) yearly treaty annuity. Before 1951 she could often refuse it and stay on the band
list. From 1951 she was automatically deprived of status and band rights from the
date of the marriage.
Sections 6(1) and 6(2) (SHOULD) The two registration classes created by Bill C-31. A 6(1) person can pass status to a
child on their own. A 6(2) person can pass it only if the other parent also has
status. Two generations of parenting outside the status population ends
registration in that family line.
Treaty Indian (SHOULD) A registered Indian belonging to a band that signed a treaty with the Crown. Not
every status Indian is a treaty Indian, so the categories overlap without matching.
Dyck reports that in Saskatchewan treaty rights are seen as “an essential basis of
their continued survival as Indians.”
White-status Native (SHOULD) Waldram’s name for a person who lives an Indigenous life in an Indigenous
community but has no legal status, so government treats them as white. Their own
community may still count them as members. They lose access to federal services
while sharing the community’s poverty and isolation.
Ethnic group (Barth) (SHOULD) A group whose membership is decided and maintained by the members
themselves through the boundaries they keep. Barth says the identity must be so
basic that “it cannot be disregarded and temporarily set aside by other definitions
of the situation.” Waldram uses it as his contrast case.
Gradual Civilization Act (1857) The pre-Confederation statute that created enfranchisement. A man judged
(SHOULD) educated, free from debt and of good moral character could be awarded land and
“the rights accompanying it” in exchange for his Indian status. Almost nobody
applied, which pushed later governments toward compulsory enfranchisement.
Section 6 of the 1869 Act The post-Confederation clause quoted by Jamieson: “any Indian woman marrying
(SHOULD) any other than an Indian shall cease to be an Indian within the meaning of this
Act.” Responsibility for her simply moved from government to her husband. The
Indian Act kept this rule until 1985.
Section 91(24) (SHOULD) The clause of the British North America Act, 1867 giving Parliament exclusive
power over “Indians, and Lands reserved for the Indians.” It is the constitutional
root of the Indian Act and of federal treaty making, and the reason courts had to
decide whether Inuit fall inside the word.
Re Eskimo (1939) (SHOULD) The Supreme Court reference holding that Inuit are included in “Indians” under
3
,Term Meaning
section 91(24), making them a federal responsibility. It settled a long dispute
between Ottawa and Quebec over who paid for relief. Inuit were never brought
under the Indian Act, and Nunavut was created in 1999.
Lavell and Bedard (1973) Two women who challenged section 12(1)(b) as sex discrimination under the
(SHOULD) Canadian Bill of Rights. The Supreme Court ruled against them, reading equality
before the law narrowly as equal administration of the law. The defeat moved the
campaign to the constitutional and international level.
Duncan Campbell Scott Deputy Superintendent of Indian Affairs and the clearest voice of assimilation
(SHOULD) policy. In 1920 he said the object was to continue “until there is not a single Indian
in Canada that has not been absorbed into the body politic and there is no Indian
question, and no Indian Department.”
Potlatch and Sun Dance bans Indian Act amendments outlawing ceremony: the potlatch from 1884 and the Sun
(SHOULD) Dance from 1895. Later amendments controlled dancing and appearing in
costume, and section 149A in 1927 made it an offence to raise money for land
claims. Law was used against culture and religion, not only land.
Hawthorn Report (1966) The federal survey of Indian conditions. Its most quoted line calls the Indian Affairs
(SHOULD) Branch “a quasi-colonial government dealing with almost the entire life of a
culturally different people who were systematically deprived of opportunities to
influence government.” Dyck uses it to show how total the administration was.
1969 White Paper (SHOULD) The federal proposal to repeal the Indian Act, end separate legal status and treat
treaties as finished business. Indigenous organisations rejected it. Ahenakew
warned that reclassifying status Indians as one more category of “Natives” would
leave “welfare programs, beadwork, powwows and very little else.”
Beothuk (SHOULD) The Indigenous people of Newfoundland, extinct by the early nineteenth century.
Slobodin calls their destruction “one of the recorded cases of literal and total
genocide.” In an essay it is the sharpest single example available of what contact
meant at its most extreme.
“Holding” administration Jenness’s description of Indian administration in the early twentieth century: it
(SHOULD) was “more concerned with preserving the status quo than with improving the
economic and social status of the Indians.” It explains why so little changed, and
why enfranchisements before 1930 were almost nonexistent.
Unit 2, Section 1: Background to treaties
Term Meaning
The doctrine of discovery The rule Europeans invented among themselves that the European who first
(MUST) “discovered” a land unknown to Europeans gained the exclusive right to acquire it
from the people already living there. It was only a claim between European
powers; it did not by itself remove Aboriginal title.
The right of conquest (MUST) The rule that a victorious nation could destroy the government of a conquered
nation and take sovereignty over its people and land. It was tied to the idea that
the Pope could grant non-Christian territory to Christian monarchs, as when
Columbus claimed the Americas for Spain.
Las Casas and Sepúlveda at Charles V called theologians and judges to Valladolid in 1550. Bartolomé de Las
Valladolid, 1550 (MUST) Casas, once an encomendero and later “Defensor of the Indians”, argued they
were rational people with working institutions. Juan Ginés de Sepúlveda argued
natural slavery, and that barbarians needed conquest and Christianising.
Aboriginal rights and treaty Aboriginal rights come from prior occupation and use of the land and exist without
rights (MUST) any treaty — land, self-government, hunting, fishing. Treaty rights are created by a
specific treaty with the Crown. Aboriginal title is the legal recognition of a land
claim.
4
,Term Meaning
The peace and friendship England’s first formal treaty was 11 August 1693 with the Penobscot, Kennebec,
treaties (MUST) Amarascoggin and Saco peoples. Others followed in 1713, 1725 (ratified at
Annapolis 1726), 1749 at Chebucto Bay, and 1752 with Cope’s Shubenacadie
Mi’kmaq. They were treaties of peace, not land surrenders.
The standard provisions of the Obey the Crown and lay down arms; take disputes to the provincial government
peace and friendship treaties rather than private revenge; trade with the English under provincial law and not
(MUST) with the French; guaranteed hunting, fishing and fowling; and English
acknowledgement of lands not already ceded or sold.
Gift-giving and annual presents The English reluctantly kept up the French practice of annual presents. To the
(MUST) Mi’kmaq the gifts were tribute or rent for land the French had built on. The English
found gift-giving repugnant to their mercantile interests but paid it to block a
French–Indian alliance.
Aboriginal diplomacy after 1713 After the Treaty of Utrecht in 1713 Aboriginal peoples played France and England
(MUST) against each other, demanding presents from both for the privilege of occupying
Indian land. The Mi’kmaq and Malecite considered themselves sovereign peoples
who owed fealty to no European monarch.
Colonial Office Indian policy McNab argues that before 1860 Indian policy was set in London by the Colonial
(McNab) (MUST) Office and the colonial governors, not by the Indian Department. Lord Grey,
secretary of state 1846–52, and Herman Merivale, permanent under-secretary
1847–60, built a regional approach to the “native question”.
The four alternatives of 1841 In 1841 Merivale named four ways of dealing with the “native question”:
(Merivale) (MUST) extermination, slavery, insulation, and amalgamation. Humanitarian pressure had
ruled out the first two. Insulation led to loss of land and dependence;
amalgamation meant gradual assimilation and the loss of native culture and
economy.
The commons (Spry) (MUST) In Rupert’s Land, survival rested on shared hunting grounds. Tribal boundaries
were not rigid but were well recognised, sometimes separated by neutral zones
that worked as wildlife reserves. Inside a tribe’s grounds, game was common
property, regulated by band councils, tribal soldiers and strict rules of the hunt.
The three stages: common Spry traces the transition “from common property resources, to open access
property, open access, private resources, and finally to private property”. Open access after 1870 brought over-
property (MUST) use and the destruction of the buffalo. The last stage — homesteads, grazing
leases, timber licences, railway rights of way — shut Indigenous and Métis people
out completely.
The destruction of the buffalo Spry blames a final, fatal combination: the 1871 discovery of a way to tan hides for
(Spry) (MUST) factory belting, long-range repeating rifles, and the transcontinental railroads. The
southern herd was gone by 1875 and the Canadian herds by 1879. In the United
States she says destruction was deliberate policy.
Cornwallis and the Mi’kmaq English settlement in Nova Scotia had spread onto land the Mi’kmaq had never
declaration of war, 1749 (MUST) ceded. Governor Edward Cornwallis asked every tribe to renew the treaty ratified
at Annapolis in 1726, and said any tribe that refused would be regarded as an
enemy. The Passamaquoddy and Chignecto renewed; the Mi’kmaq refused and
formally declared war, on the ground that their lands had been usurped,
demanding that the English leave Halifax if war was to be averted. Cornwallis and
his council denied Mi’kmaq sovereignty and launched a retaliatory campaign of
extermination. A war of resistance followed.
Cope, the truckhouse and the Peregrine Hopson replaced Cornwallis as governor in 1752 and negotiated with
refusal to compensate, 1752 Jean-Baptiste Cope, leader of the Shubenacadie band of Mi’kmaq. Cope asked the
(MUST) English to pay the Mi’kmaq for expropriated land. The Nova Scotia council would
not discuss compensation for land taken for settlement, and offered instead to
open a truckhouse where Cope’s band could trade, plus annual presents to those
5
,Term Meaning
who stayed at peace. In November 1752 the band renewed the 1726 treaty in
return for friendship and protection — presents of blankets, tobacco, and powder
and shot, and guaranteed freedom to hunt and fish. The peace was short lived.
The encomienda (SHOULD) A Spanish system in parts of South America. The king granted a colonist a tract of
land, and the Aboriginal people on it were entrusted to him for conversion to
Christianity. In return the encomendero could demand forced labour from them.
Vitoria and Vattel (SHOULD) Francisco de Vitoria, in De Indis Noviter Inventis (1532), rejected the Pope as
overlord and held that Indigenous people had title, losable only by voluntary
surrender or a just war. Emer de Vattel, in 1758, argued that hunter-gatherers who
did not farm deserved only restricted territory.
Unit 2, Section 2: The Royal Proclamation of 1763 and the unnumbered treaties
Term Meaning
Pontiac’s resistance (MUST) A confederation of Ohio River valley tribes led by the Ottawa chief Pontiac rose
against the British after the fall of New France, encouraged by French traders and
alarmed by settlers crossing the Alleghenies. Though defeated, it showed Britain
that holding the interior by force would be expensive.
The Royal Proclamation of 1763 Issued 7 October 1763 to keep the peace on Indian land west of the Appalachians,
(MUST) on the belief that trouble could be avoided if Indians were reassured their rights,
title and way of life would be protected. Indian territory was open to trade but
closed to settlement.
Indian Country (MUST) The reserved territory the Proclamation created, with set boundaries, where
Indian people could hunt. It covered land acquired by conquest in Canada, but
expressly not the territory granted to the Hudson’s Bay Company in Rupert’s Land,
nor the land inside the three new governments.
The hunting grounds reserved The Proclamation says the nations or tribes “with whom We are connected, and
to the Indians (MUST) who live under our Protection” must not be “molested or disturbed” in possession
of those parts of the King’s dominions that, “not having been ceded to or
purchased by Us, are reserved to them… as their Hunting Grounds”. The Indian
nations Britain deals with and protects must not be pushed off or bothered on any
land they have not given up or sold to the Crown. That land is kept for them as
their hunting grounds.
Surrender only to the Crown at Because “great Frauds and Abuses” had been committed, no private person could
a public meeting (MUST) buy Indian land. If Indians wished to dispose of land it “shall be Purchased only for
Us, in our Name, at some public Meeting or Assembly of the said Indians”,
convened by the Governor or Commander-in-Chief.
The right of occupancy (MUST) Under the laws of discovery and conquest Britain claimed absolute title to the land
ceded by the Treaty of Paris, so Indians were treated as holding only a right of
occupancy. The Crown could extinguish Indian title by negotiation or by force,
while claiming only limited sovereignty over Indian nations.
The “Magna Carta” of Aboriginal The course reading records that the Proclamation’s Indian provisions are regarded
rights (MUST) by many Aboriginal people as the Magna Carta of Aboriginal rights. The Royal
Commission records Mr Justice Hall calling it the Indian Bill of Rights, whose force
as a statute is analogous to Magna Carta.
The standing of the Courts held in 1926 that the Proclamation has the force of a statute and, so far as
Proclamation in later law Indian rights are concerned, has never been repealed. But in St. Catharine’s Milling
(MUST) in 1888 the Privy Council had already reduced Indian title to a personal and
usufructuary right.
The War of 1812 and the Surtees argues the Indians of Upper Canada came out of the war much weakened.
bargaining position (MUST) They were only about ten per cent of the province’s people by 1812, the Western
6
,Term Meaning
Confederacy was shattered and Tecumseh dead, and Bathurst’s new immigration
policy poured British settlers in.
Land cession after 1815 (MUST) Once friendship with Aboriginal people no longer mattered to British power, policy
turned to acquiring Indian land by formal surrender. Surtees counts seven major
cessions in the first postwar decade, moving some 2.8 million hectares of Indian
land to government control.
The annuity, or treaty money Lieutenant-Governor Maitland proposed selling surrendered land at auction and
(MUST) paying the Indians the annual interest every year in perpetuity, instead of one
lump sum. Surtees says it was done to save money. Indian people across Canada
soon grew used to receiving their annual treaty money.
The Robinson–Huron and Mineral discoveries and mining licences issued from 1846 on the north shores of
Robinson–Superior treaties, Lakes Huron and Superior prompted First Nations leaders, who knew the
1850 (MUST) Proclamation of 1763, to demand that title be settled first. William B. Robinson
negotiated both treaties in 1850.
The Robinson treaty model Six features that became the pattern for the numbered treaties: negotiation at a
(MUST) public meeting; surrendered land purchasable only by the Crown; a schedule of
reserves not saleable without permission; perpetual annuities; no blocking of
mineral exploration on ceded land; and hunting and fishing retained on ceded land
not sold, leased or occupied.
The Métis in the Robinson The chiefs wanted their Métis relatives provided for and asked for a separate
treaties (MUST) agreement. Robinson refused, but let the chiefs include the Métis in the 1850
treaties, so some were officially recognised as Indians. He counted 84 half-breeds
on Lake Superior and 200 on Lake Huron.
Unit 2, Section 3: The meaning of treaties
Term Meaning
The Grundnorm (Little Bear) The basic norm a whole legal system rests on. Little Bear borrows the word from
(MUST) Kelsen: whatever a government can get away with through administrative and
legislative action may be held to be legal, even where it breaks the written
constitution or international law.
The Aboriginal peoples’ Time is cyclical rather than linear; land is owned communally by the whole tribe,
standard (Little Bear) (MUST) including past and future generations, the plants and the animals; and the source
of Indian title “can be traced back to the Creator”. On that standard land is
inalienable and can only be shared.
The British common law Nobody owns land outright, only an estate in it. Possession is a large part of
standard (Little Bear) (MUST) ownership. The largest estate is the fee simple absolute, freely alienable and of
infinite duration. And the grantor of title is almost always the Crown rather than
the Creator.
The international law standard Drawing on Vitoria: Indian nations were the true owners of their land, and
(Little Bear) (MUST) discovery, papal authority and non-Christian status gave Europeans no ownership.
The only lawful route to title was purchase or voluntary transfer from the Indian
nations themselves.
Little Bear’s four points on what FIRST, sharing is not alienation — they shared once they recognised Europeans as
was surrendered (MUST) human beings, but sharing never gave Europeans the rights of a native person and
never meant giving up rights for all eternity. SECOND, they could not give
unconditional fee simple ownership because they never held it; the Creator was
the grantor, and one cannot give an interest greater than one has. THIRD, they
could not give even an equal interest, because it would break the condition the
Creator granted it under, and because they are not the sole owners — past
generations, the yet-to-be-born, the plants and the animals all hold an interest:
“Has the Crown ever received a surrender of title from these others?” FOURTH,
7
,Term Meaning
the only interest they could transfer is a lesser one, since one can always give an
interest smaller than one has. So “the Indians did not surrender very much, if they
surrendered anything at all”.
Section 35 and the word Section 35 of the Constitution Act, 1982: “The existing aboriginal and treaty rights
“existing” (Little Bear) (MUST) of the aboriginal peoples are hereby recognized and affirmed.” Little Bear calls it
an excellent opportunity for Canada to correct its earlier judicial precedents and
rest these rights on concepts of law rather than on perspectives of race, politics
and social class. The word “existing” took it back. The government reads Section
35 to recognise only rights already legally recognised, and not rights Canada says
have ceased because they were extinguished or superseded by its own law. So the
constitution protects only whatever survived the Grundnorm, rather than stopping
it. Henderson’s test: the federal government’s willingness to make restitution “will
be the litmus test”. Little Bear’s conclusion is that Indian nations are more and
more convinced Canada will go on following its own norms.
St. Catharine’s Milling and A timber and boundary dispute between Ontario and Ottawa, not an Indian case.
Lumber Co. v. The Queen (1888) The Privy Council held that the Indian interest was only “a personal and
(MUST) usufructuary right”, a mere burden on the Crown’s underlying title. It set the
standard for Aboriginal title in Canada.
Usufructuary title (MUST) The right to use, occupy and enjoy land and its fruits without owning it in fee
simple. Little Bear and Opekokew both trace the phrase to St. Catharine’s Milling;
Hall J. in Calder defined it as a right to occupy the lands and enjoy the fruits of the
soil.
Calder v. Attorney General of The Nishga case. Its importance is that it recognises prior occupancy from time
British Columbia (1973) (MUST) immemorial as a basis for Aboriginal title, so title can exist independently of the
Royal Proclamation of 1763. With St. Catharine’s it sets out Canada’s rule on title.
The Vienna Convention Green quotes it: “an international agreement concluded between States in written
definition of a treaty (Green) form and governed by international law.” Because Indian nations were not held to
(MUST) be states, he concludes that Crown–First Nations agreements fall outside the
definition and are not treaties in the strict sense.
“As if treaty-like in character” Green’s concession. Government after government and court after court described
(Green) (MUST) these agreements as treaty-like for a hundred years, so the Crown is morally
bound. Terms should be read as both parties understood them, and against the
party that drafted them.
The spirit and intent of the Opekokew’s central claim: “The written treaties do not correspond with the spirit
treaties (Opekokew) (MUST) and intent of the treaties as understood by Indian people.” She lists as a breach
that all future dealings were to rest on that spirit and intent, and that the treaties
were to supersede later legislation.
The depth of a plough (MUST) Opekokew reports the Treaty 4 Elders: the Commissioner said the white men
wanted land to farm only to the depth of a plough, most often given as six inches.
Everything below that depth, and land that could not be farmed, was never ceded.
The pipe ceremony (MUST) Opekokew describes the people advancing in a semi-circle at Treaty 6 and
stopping to smoke the pipe — “a very sacred experience for Indian people and an
integral part of Indian religion”. Morris missed the meaning, calling it only a token
of good feeling.
Opekokew’s five principles Retained sovereignty; an ongoing developmental relationship with the Crown; a
guaranteed in perpetuity share of tax revenue; a political protocol of annual treaty reviews; and the rule
(SHOULD) that the Indians’ interpretation supersedes all others.
8
,Unit 2, Section 4: The numbered treaties, 1871–1923
Term Meaning
Section 91(24), British North “Indians and Lands reserved for Indians” are a federal head of power. After
America Act, 1867 (MUST) Confederation only the federal government could make treaties with Indian
people, which is why every numbered treaty from 1871 onward is an agreement
with the Crown in right of Canada.
The Fertile Belt treaties, 1871– Treaties 1 to 7, made to open the prairie Fertile Belt to farming settlement. They
1877 (MUST) promised tools, livestock and seed grain so that Indian people could farm in place
of the vanishing buffalo. The course reading says the aim was preparation for
eventual assimilation.
The northern resource treaties, Treaties 8 to 11, made after prospectors and speculators pushed into northern
1899–1921 (MUST) Alberta, Saskatchewan, British Columbia, the Yukon and the North-West
Territories. Their purpose was the cession of land rich in petroleum — the
Athabasca tar sands — and in silver, copper, iron and gold.
Treaty No. 6 (1876) (MUST) Made near Carlton on 23 and 28 August and near Fort Pitt on 9 September 1876,
between Queen Victoria, through her Commissioner Alexander Morris, and the
Plain and Wood Cree and other tribes. Adhesions ran from 1877 to 1956 by Cree,
Assiniboine and Dene people.
“Cede, release, surrender and The surrender formula in the written treaty. The tribes “do hereby cede, release,
yield up” (MUST) surrender and yield up to the Government of the Dominion of Canada, for Her
Majesty the Queen and Her successors forever, all their rights, titles and privileges,
whatsoever, to the lands” inside the described limits.
The medicine chest clause Unique to Treaty 6: “That a medicine chest shall be kept at the house of each
(MUST) Indian Agent for the use and benefit of the Indians at the direction of such agent.”
It was asked for because European epidemics, above all smallpox, were destroying
plains populations.
The famine and pestilence Also unique to Treaty 6. If the Indians are overtaken by any pestilence or by a
clause (MUST) general famine, the Queen, once satisfied and certified by her Indian Agent, will
grant assistance of such character and extent as the Chief Superintendent of
Indian Affairs thinks enough to relieve the calamity.
The four corners of the The strict approach of reading a treaty only by the words physically inside it,
document (MUST) ignoring oral promises and historical context. Barkwell argues the courts should
soften it by admitting historical evidence, such as Father Scollen’s letter and
testimony about the original Indian understanding.
Dreaver v. The King (1935) The first medicine chest case. In the Exchequer Court, Angers J., relying on Chief
(MUST) Dreaver who was twenty when Treaty 6 was signed, ruled that the clause meant
all medicines, drugs or medical supplies required by the Indians of the Mistawasis
Band were to be supplied free of charge.
R. v. Johnston (1966) (MUST) The trial magistrate read the medicine chest and pestilence clauses together as
entitling Indians to all medical services free. The Saskatchewan Court of Appeal
reversed, Culliton C.J.S. holding that on the plain reading the clause means no
more than the words clearly convey.
Section 88 of the Indian Act Knoll quotes it: subject to the terms of any treaty and any other Act of Parliament,
(MUST) all laws of general application in force in a province apply to Indians. It shields
treaty rights from provincial law, but, per R. v. George, not from federal statutes.
The Natural Resources Transfer Agreements transferring resource ownership to Alberta, Saskatchewan and
Agreements, 1929–1930 (MUST) Manitoba, embodied in the British North America Act, 1930, so they carry
constitutional force. They assure a right of hunting, trapping and fishing for food,
at all seasons, on all unoccupied Crown land.
Indian halfbreeds in Treaty Long shows the commissioners — Duncan Campbell Scott, Samuel Stewart and
No. 9 (1905) (MUST) Daniel MacMartin, the first provincial representative in a post-Confederation
9
,Term Meaning
treaty — went out with no instructions on halfbreed claims. At Fort Albany they
admitted over thirty: “halfbreeds by origin, Indians by decree of the
commissioners.”
The Migratory Birds Convention The Convention of 1916 and the Act of 1917. Knoll treats it, with the Fisheries Act,
Act (SHOULD) as a federal statute that limits the treaty right to hunt, since section 88 of the
Indian Act protects treaty rights from provincial law but not from federal law.
Unit 2, Section 5: First Nations understanding of the treaty terms
Term Meaning
The forked tongue (Cardinal) Cardinal’s title image. The old western-movie line that the white man speaks with
(MUST) a forked tongue still stings because it is true. Where the government now denies
promises it once made, its statements amount to an entire society’s lie — the
betrayal of the Indian people.
Oral tradition against the Indian negotiators spoke Indigenous languages, did not write English, worked
written record (MUST) through interpreters, and did not know that a judicial system existed to arbitrate.
The commissioners knew that written promises carried more legal weight than the
spoken ones they could later disclaim.
“As long as the sun shines and The formula of permanence. Okeymaw recalls the commissioner saying: “This will
the rivers flow” (MUST) be in effect as long as the sun shines and the rivers flow. He used these two oaths
in sincerity.” O’Chiese says the people expected the deal to hold on those terms.
The pipe, the stem, the sweet- Harold Cardinal, in Price, explains that the stem stands for the straight road, the
grass and the fire (MUST) stone pipe for the strength to keep the faith, and the fire for the source of life and
food. So “we do not give you our timber” meant they did not give the pipe stem.
The six inches (MUST) John Buffalo’s grandfather’s account: the commissioners took only land the
settlers could farm — “anything underground would not be given up, only six
inches, enough for the settlers to grow crops” — and if anything were discovered
below the surface, half its value would go to the Indians.
What the Elders say was not Buffalo: the game animals, the timber and the big lakes, kept as the means of
surrendered (MUST) survival; land unfit for farming; and the mountains, never even mentioned. Gibot
adds that gold, minerals and petroleum below the surface were never discussed by
the commissioner at all.
The rewriting in Ottawa (MUST) Buffalo’s charge, and the Elders’ core account of the gap between the spoken deal
and the written treaty: “When they took the papers back to Ottawa, they made
them so that the government could claim all of Canada. They did not ask
permission here to do that.”
Two understandings, one Harold Cardinal, in Price: “He wrote his treaties from his understanding and we
Creator (MUST) wrote ours from our understanding.” Because the same kind Creator made both
original peoples and dealt fairly with both, there is a present responsibility to
reach a settlement that satisfies both sides.
Annuity (MUST) A yearly payment of a fixed amount, given as a right, for life. Under the numbered
treaties it was five dollars per person per year, with larger sums and a suit of
clothing every three years for chiefs and headmen. The Elders cite it as a promise
still owed.
In perpetuity (MUST) Forever. It is the legal counterpart of the Elders’ “as long as the sun shines and the
rivers flow”, and the basis of Cardinal’s argument that the treaties are living
agreements rather than historical relics that can be cancelled when they become
inconvenient.
Usufruct (MUST) The right to enjoy or use the fruits of something belonging to another, without
destroying or wasting it. It is the concept Canadian courts use to describe Indian
land rights, and the reason Indian title is treated as occupancy rather than
10
I got an A+ in INST 203, and this cheat sheet is what helped me the most for the final. Every term is
marked MUST (know it fully) or SHOULD (know the one line). If you know everything up to the SHOULD
items, you should be in good shape for an A+ on the final.
How I’d use it:
• Cover the right-hand column of each table and try to say the answer before you read it.
• Learn the author table well. On the final, most lost marks come from a missing or wrong author
name, not a wrong idea.
• Read the common mistakes at the end the night before the exam.
Pair this with the answers file. If you can answer all the study questions at the end of each section,
you’re ready for the final.
One more thing: the assignments are marked really hard, especially citations, but the final is marked a
lot more fairly. So don’t get discouraged if your assignment grades aren’t great.
Good luck!
1
,INST 203 Cheat Sheet
Key terms
MUST means learn it completely. SHOULD means know the one-line version. Cover the right-hand
column and try to say the answer before you read it.
Unit 1
Term Meaning
Indian Act (1876) (MUST) The single federal law governing registered Indians since 1876. It gathered earlier
colonial statutes into one act and gave Ottawa control of status, band
membership, reserve land, band elections, wills and schooling. It was amended
repeatedly to ban ceremonies and force enfranchisement. It is still in force today.
Enfranchisement (MUST) The loss of legal Indian status. It happened by application, by earning a degree or
profession, by voting federally before 1960, or automatically when a status woman
married a man without status. The stated purpose was to make Indians into
ordinary citizens. Bill C-31 ended it in 1985.
Status (registered) Indian A person registered, or entitled to be registered, under the Indian Act. Section 2(1)
(MUST) defines an Indian as “a person who pursuant to this Act is registered as an Indian
or is entitled to be registered as an Indian.” It is a legal category, not a cultural or
racial one.
Non-status Indian (MUST) A person of Indian ancestry and culture whom the Crown does not count as an
Indian in law. The category includes people who were enfranchised, women who
married out before 1985, their children, and people removed from the Indian
Register. They keep the identity and lose the rights.
Section 12(1)(b) (MUST) The Indian Act clause that stripped status from any Indian woman who married a
man without status, and from her children. A man who married out kept his status
and passed it to his wife. Lavell and Bedard challenged it in 1973 and lost. Bill C-31
repealed it in 1985.
Bill C-31 (1985) (MUST) The amendment that removed sex discrimination from the Indian Act, ended
enfranchisement, allowed women who married out to be reinstated, and let bands
write their own membership codes. Jamieson warns it did not mean the effects of
117 years of legislative discrimination would magically disappear.
Ethnostatus group (MUST) Waldram’s term for a group whose boundary is drawn by government legislation
rather than by its own members. It is his contrast to Barth’s ethnic group, which is
self-defined. Status Indians and Métis in one northern community can share one
culture and still be two ethnostatus groups.
The colonization process Frideres and Gadacz’s seven-part model: entering another people’s territory;
(MUST) destroying their social and cultural structures; external political control; economic
dependence; poor-quality services; racism; and a colour line. It presents
colonisation as an ongoing process, not a finished historical event.
Collective identity (MUST) The shared sense of belonging a group holds, which individual members draw on
to build a personal identity. Frideres and Gadacz argue the collective must place a
positive value on that identity before an individual can have positive self-esteem.
This is why attacks on the group injure the person.
Victimization (MUST) St. Clair Drake’s concept, quoted by Jamieson. Some people are used as a means
to other people’s ends without their consent, in a system built so it can be
manipulated to their disadvantage. Victims face identity problems, weakened self-
esteem, and a condition that is “essentially one of powerlessness.”
2
,Term Meaning
Apartheid system (MUST) Jenness’s name for the reserve system, which separated Indigenous people from
whites and gave them a special legal status. He calls it “one major cause for
prejudice” and asks what is being done to end a system never intended to endure
more than one or two generations.
Colonialism (Ponting) (MUST) Ponting’s working model, built from Frideres: entry by an outside power,
destruction of the existing culture, external political control, economic
dependence, inferior services, racism, and indirect rule in which non-Indians
govern Indians through “puppet chiefs.” Ponting then tests whether it truly
explains Indian Affairs behaviour.
Declaration of the First Nations The 1980–81 statement that Indigenous rights come from the Creator, not from
(MUST) Canada. It says the Creator gave laws governing all relationships, that those rights
cannot be altered or taken away by any other nation, and that the right to self-
government and self-determination is Creator-given.
Native Women’s Association of The national organisation arguing that sexual equality must come before self-
Canada (MUST) government. Krosenbrink-Gelissen records its position that equality “must
unambiguously and constitutionally stand above Aboriginal self-government.”
Excluded from the First Ministers’ conferences, it lobbied through other
delegations and through provincial and national bodies instead.
Commutation of annuities A one-time cash payment given to a woman who married out, in place of her
(SHOULD) yearly treaty annuity. Before 1951 she could often refuse it and stay on the band
list. From 1951 she was automatically deprived of status and band rights from the
date of the marriage.
Sections 6(1) and 6(2) (SHOULD) The two registration classes created by Bill C-31. A 6(1) person can pass status to a
child on their own. A 6(2) person can pass it only if the other parent also has
status. Two generations of parenting outside the status population ends
registration in that family line.
Treaty Indian (SHOULD) A registered Indian belonging to a band that signed a treaty with the Crown. Not
every status Indian is a treaty Indian, so the categories overlap without matching.
Dyck reports that in Saskatchewan treaty rights are seen as “an essential basis of
their continued survival as Indians.”
White-status Native (SHOULD) Waldram’s name for a person who lives an Indigenous life in an Indigenous
community but has no legal status, so government treats them as white. Their own
community may still count them as members. They lose access to federal services
while sharing the community’s poverty and isolation.
Ethnic group (Barth) (SHOULD) A group whose membership is decided and maintained by the members
themselves through the boundaries they keep. Barth says the identity must be so
basic that “it cannot be disregarded and temporarily set aside by other definitions
of the situation.” Waldram uses it as his contrast case.
Gradual Civilization Act (1857) The pre-Confederation statute that created enfranchisement. A man judged
(SHOULD) educated, free from debt and of good moral character could be awarded land and
“the rights accompanying it” in exchange for his Indian status. Almost nobody
applied, which pushed later governments toward compulsory enfranchisement.
Section 6 of the 1869 Act The post-Confederation clause quoted by Jamieson: “any Indian woman marrying
(SHOULD) any other than an Indian shall cease to be an Indian within the meaning of this
Act.” Responsibility for her simply moved from government to her husband. The
Indian Act kept this rule until 1985.
Section 91(24) (SHOULD) The clause of the British North America Act, 1867 giving Parliament exclusive
power over “Indians, and Lands reserved for the Indians.” It is the constitutional
root of the Indian Act and of federal treaty making, and the reason courts had to
decide whether Inuit fall inside the word.
Re Eskimo (1939) (SHOULD) The Supreme Court reference holding that Inuit are included in “Indians” under
3
,Term Meaning
section 91(24), making them a federal responsibility. It settled a long dispute
between Ottawa and Quebec over who paid for relief. Inuit were never brought
under the Indian Act, and Nunavut was created in 1999.
Lavell and Bedard (1973) Two women who challenged section 12(1)(b) as sex discrimination under the
(SHOULD) Canadian Bill of Rights. The Supreme Court ruled against them, reading equality
before the law narrowly as equal administration of the law. The defeat moved the
campaign to the constitutional and international level.
Duncan Campbell Scott Deputy Superintendent of Indian Affairs and the clearest voice of assimilation
(SHOULD) policy. In 1920 he said the object was to continue “until there is not a single Indian
in Canada that has not been absorbed into the body politic and there is no Indian
question, and no Indian Department.”
Potlatch and Sun Dance bans Indian Act amendments outlawing ceremony: the potlatch from 1884 and the Sun
(SHOULD) Dance from 1895. Later amendments controlled dancing and appearing in
costume, and section 149A in 1927 made it an offence to raise money for land
claims. Law was used against culture and religion, not only land.
Hawthorn Report (1966) The federal survey of Indian conditions. Its most quoted line calls the Indian Affairs
(SHOULD) Branch “a quasi-colonial government dealing with almost the entire life of a
culturally different people who were systematically deprived of opportunities to
influence government.” Dyck uses it to show how total the administration was.
1969 White Paper (SHOULD) The federal proposal to repeal the Indian Act, end separate legal status and treat
treaties as finished business. Indigenous organisations rejected it. Ahenakew
warned that reclassifying status Indians as one more category of “Natives” would
leave “welfare programs, beadwork, powwows and very little else.”
Beothuk (SHOULD) The Indigenous people of Newfoundland, extinct by the early nineteenth century.
Slobodin calls their destruction “one of the recorded cases of literal and total
genocide.” In an essay it is the sharpest single example available of what contact
meant at its most extreme.
“Holding” administration Jenness’s description of Indian administration in the early twentieth century: it
(SHOULD) was “more concerned with preserving the status quo than with improving the
economic and social status of the Indians.” It explains why so little changed, and
why enfranchisements before 1930 were almost nonexistent.
Unit 2, Section 1: Background to treaties
Term Meaning
The doctrine of discovery The rule Europeans invented among themselves that the European who first
(MUST) “discovered” a land unknown to Europeans gained the exclusive right to acquire it
from the people already living there. It was only a claim between European
powers; it did not by itself remove Aboriginal title.
The right of conquest (MUST) The rule that a victorious nation could destroy the government of a conquered
nation and take sovereignty over its people and land. It was tied to the idea that
the Pope could grant non-Christian territory to Christian monarchs, as when
Columbus claimed the Americas for Spain.
Las Casas and Sepúlveda at Charles V called theologians and judges to Valladolid in 1550. Bartolomé de Las
Valladolid, 1550 (MUST) Casas, once an encomendero and later “Defensor of the Indians”, argued they
were rational people with working institutions. Juan Ginés de Sepúlveda argued
natural slavery, and that barbarians needed conquest and Christianising.
Aboriginal rights and treaty Aboriginal rights come from prior occupation and use of the land and exist without
rights (MUST) any treaty — land, self-government, hunting, fishing. Treaty rights are created by a
specific treaty with the Crown. Aboriginal title is the legal recognition of a land
claim.
4
,Term Meaning
The peace and friendship England’s first formal treaty was 11 August 1693 with the Penobscot, Kennebec,
treaties (MUST) Amarascoggin and Saco peoples. Others followed in 1713, 1725 (ratified at
Annapolis 1726), 1749 at Chebucto Bay, and 1752 with Cope’s Shubenacadie
Mi’kmaq. They were treaties of peace, not land surrenders.
The standard provisions of the Obey the Crown and lay down arms; take disputes to the provincial government
peace and friendship treaties rather than private revenge; trade with the English under provincial law and not
(MUST) with the French; guaranteed hunting, fishing and fowling; and English
acknowledgement of lands not already ceded or sold.
Gift-giving and annual presents The English reluctantly kept up the French practice of annual presents. To the
(MUST) Mi’kmaq the gifts were tribute or rent for land the French had built on. The English
found gift-giving repugnant to their mercantile interests but paid it to block a
French–Indian alliance.
Aboriginal diplomacy after 1713 After the Treaty of Utrecht in 1713 Aboriginal peoples played France and England
(MUST) against each other, demanding presents from both for the privilege of occupying
Indian land. The Mi’kmaq and Malecite considered themselves sovereign peoples
who owed fealty to no European monarch.
Colonial Office Indian policy McNab argues that before 1860 Indian policy was set in London by the Colonial
(McNab) (MUST) Office and the colonial governors, not by the Indian Department. Lord Grey,
secretary of state 1846–52, and Herman Merivale, permanent under-secretary
1847–60, built a regional approach to the “native question”.
The four alternatives of 1841 In 1841 Merivale named four ways of dealing with the “native question”:
(Merivale) (MUST) extermination, slavery, insulation, and amalgamation. Humanitarian pressure had
ruled out the first two. Insulation led to loss of land and dependence;
amalgamation meant gradual assimilation and the loss of native culture and
economy.
The commons (Spry) (MUST) In Rupert’s Land, survival rested on shared hunting grounds. Tribal boundaries
were not rigid but were well recognised, sometimes separated by neutral zones
that worked as wildlife reserves. Inside a tribe’s grounds, game was common
property, regulated by band councils, tribal soldiers and strict rules of the hunt.
The three stages: common Spry traces the transition “from common property resources, to open access
property, open access, private resources, and finally to private property”. Open access after 1870 brought over-
property (MUST) use and the destruction of the buffalo. The last stage — homesteads, grazing
leases, timber licences, railway rights of way — shut Indigenous and Métis people
out completely.
The destruction of the buffalo Spry blames a final, fatal combination: the 1871 discovery of a way to tan hides for
(Spry) (MUST) factory belting, long-range repeating rifles, and the transcontinental railroads. The
southern herd was gone by 1875 and the Canadian herds by 1879. In the United
States she says destruction was deliberate policy.
Cornwallis and the Mi’kmaq English settlement in Nova Scotia had spread onto land the Mi’kmaq had never
declaration of war, 1749 (MUST) ceded. Governor Edward Cornwallis asked every tribe to renew the treaty ratified
at Annapolis in 1726, and said any tribe that refused would be regarded as an
enemy. The Passamaquoddy and Chignecto renewed; the Mi’kmaq refused and
formally declared war, on the ground that their lands had been usurped,
demanding that the English leave Halifax if war was to be averted. Cornwallis and
his council denied Mi’kmaq sovereignty and launched a retaliatory campaign of
extermination. A war of resistance followed.
Cope, the truckhouse and the Peregrine Hopson replaced Cornwallis as governor in 1752 and negotiated with
refusal to compensate, 1752 Jean-Baptiste Cope, leader of the Shubenacadie band of Mi’kmaq. Cope asked the
(MUST) English to pay the Mi’kmaq for expropriated land. The Nova Scotia council would
not discuss compensation for land taken for settlement, and offered instead to
open a truckhouse where Cope’s band could trade, plus annual presents to those
5
,Term Meaning
who stayed at peace. In November 1752 the band renewed the 1726 treaty in
return for friendship and protection — presents of blankets, tobacco, and powder
and shot, and guaranteed freedom to hunt and fish. The peace was short lived.
The encomienda (SHOULD) A Spanish system in parts of South America. The king granted a colonist a tract of
land, and the Aboriginal people on it were entrusted to him for conversion to
Christianity. In return the encomendero could demand forced labour from them.
Vitoria and Vattel (SHOULD) Francisco de Vitoria, in De Indis Noviter Inventis (1532), rejected the Pope as
overlord and held that Indigenous people had title, losable only by voluntary
surrender or a just war. Emer de Vattel, in 1758, argued that hunter-gatherers who
did not farm deserved only restricted territory.
Unit 2, Section 2: The Royal Proclamation of 1763 and the unnumbered treaties
Term Meaning
Pontiac’s resistance (MUST) A confederation of Ohio River valley tribes led by the Ottawa chief Pontiac rose
against the British after the fall of New France, encouraged by French traders and
alarmed by settlers crossing the Alleghenies. Though defeated, it showed Britain
that holding the interior by force would be expensive.
The Royal Proclamation of 1763 Issued 7 October 1763 to keep the peace on Indian land west of the Appalachians,
(MUST) on the belief that trouble could be avoided if Indians were reassured their rights,
title and way of life would be protected. Indian territory was open to trade but
closed to settlement.
Indian Country (MUST) The reserved territory the Proclamation created, with set boundaries, where
Indian people could hunt. It covered land acquired by conquest in Canada, but
expressly not the territory granted to the Hudson’s Bay Company in Rupert’s Land,
nor the land inside the three new governments.
The hunting grounds reserved The Proclamation says the nations or tribes “with whom We are connected, and
to the Indians (MUST) who live under our Protection” must not be “molested or disturbed” in possession
of those parts of the King’s dominions that, “not having been ceded to or
purchased by Us, are reserved to them… as their Hunting Grounds”. The Indian
nations Britain deals with and protects must not be pushed off or bothered on any
land they have not given up or sold to the Crown. That land is kept for them as
their hunting grounds.
Surrender only to the Crown at Because “great Frauds and Abuses” had been committed, no private person could
a public meeting (MUST) buy Indian land. If Indians wished to dispose of land it “shall be Purchased only for
Us, in our Name, at some public Meeting or Assembly of the said Indians”,
convened by the Governor or Commander-in-Chief.
The right of occupancy (MUST) Under the laws of discovery and conquest Britain claimed absolute title to the land
ceded by the Treaty of Paris, so Indians were treated as holding only a right of
occupancy. The Crown could extinguish Indian title by negotiation or by force,
while claiming only limited sovereignty over Indian nations.
The “Magna Carta” of Aboriginal The course reading records that the Proclamation’s Indian provisions are regarded
rights (MUST) by many Aboriginal people as the Magna Carta of Aboriginal rights. The Royal
Commission records Mr Justice Hall calling it the Indian Bill of Rights, whose force
as a statute is analogous to Magna Carta.
The standing of the Courts held in 1926 that the Proclamation has the force of a statute and, so far as
Proclamation in later law Indian rights are concerned, has never been repealed. But in St. Catharine’s Milling
(MUST) in 1888 the Privy Council had already reduced Indian title to a personal and
usufructuary right.
The War of 1812 and the Surtees argues the Indians of Upper Canada came out of the war much weakened.
bargaining position (MUST) They were only about ten per cent of the province’s people by 1812, the Western
6
,Term Meaning
Confederacy was shattered and Tecumseh dead, and Bathurst’s new immigration
policy poured British settlers in.
Land cession after 1815 (MUST) Once friendship with Aboriginal people no longer mattered to British power, policy
turned to acquiring Indian land by formal surrender. Surtees counts seven major
cessions in the first postwar decade, moving some 2.8 million hectares of Indian
land to government control.
The annuity, or treaty money Lieutenant-Governor Maitland proposed selling surrendered land at auction and
(MUST) paying the Indians the annual interest every year in perpetuity, instead of one
lump sum. Surtees says it was done to save money. Indian people across Canada
soon grew used to receiving their annual treaty money.
The Robinson–Huron and Mineral discoveries and mining licences issued from 1846 on the north shores of
Robinson–Superior treaties, Lakes Huron and Superior prompted First Nations leaders, who knew the
1850 (MUST) Proclamation of 1763, to demand that title be settled first. William B. Robinson
negotiated both treaties in 1850.
The Robinson treaty model Six features that became the pattern for the numbered treaties: negotiation at a
(MUST) public meeting; surrendered land purchasable only by the Crown; a schedule of
reserves not saleable without permission; perpetual annuities; no blocking of
mineral exploration on ceded land; and hunting and fishing retained on ceded land
not sold, leased or occupied.
The Métis in the Robinson The chiefs wanted their Métis relatives provided for and asked for a separate
treaties (MUST) agreement. Robinson refused, but let the chiefs include the Métis in the 1850
treaties, so some were officially recognised as Indians. He counted 84 half-breeds
on Lake Superior and 200 on Lake Huron.
Unit 2, Section 3: The meaning of treaties
Term Meaning
The Grundnorm (Little Bear) The basic norm a whole legal system rests on. Little Bear borrows the word from
(MUST) Kelsen: whatever a government can get away with through administrative and
legislative action may be held to be legal, even where it breaks the written
constitution or international law.
The Aboriginal peoples’ Time is cyclical rather than linear; land is owned communally by the whole tribe,
standard (Little Bear) (MUST) including past and future generations, the plants and the animals; and the source
of Indian title “can be traced back to the Creator”. On that standard land is
inalienable and can only be shared.
The British common law Nobody owns land outright, only an estate in it. Possession is a large part of
standard (Little Bear) (MUST) ownership. The largest estate is the fee simple absolute, freely alienable and of
infinite duration. And the grantor of title is almost always the Crown rather than
the Creator.
The international law standard Drawing on Vitoria: Indian nations were the true owners of their land, and
(Little Bear) (MUST) discovery, papal authority and non-Christian status gave Europeans no ownership.
The only lawful route to title was purchase or voluntary transfer from the Indian
nations themselves.
Little Bear’s four points on what FIRST, sharing is not alienation — they shared once they recognised Europeans as
was surrendered (MUST) human beings, but sharing never gave Europeans the rights of a native person and
never meant giving up rights for all eternity. SECOND, they could not give
unconditional fee simple ownership because they never held it; the Creator was
the grantor, and one cannot give an interest greater than one has. THIRD, they
could not give even an equal interest, because it would break the condition the
Creator granted it under, and because they are not the sole owners — past
generations, the yet-to-be-born, the plants and the animals all hold an interest:
“Has the Crown ever received a surrender of title from these others?” FOURTH,
7
,Term Meaning
the only interest they could transfer is a lesser one, since one can always give an
interest smaller than one has. So “the Indians did not surrender very much, if they
surrendered anything at all”.
Section 35 and the word Section 35 of the Constitution Act, 1982: “The existing aboriginal and treaty rights
“existing” (Little Bear) (MUST) of the aboriginal peoples are hereby recognized and affirmed.” Little Bear calls it
an excellent opportunity for Canada to correct its earlier judicial precedents and
rest these rights on concepts of law rather than on perspectives of race, politics
and social class. The word “existing” took it back. The government reads Section
35 to recognise only rights already legally recognised, and not rights Canada says
have ceased because they were extinguished or superseded by its own law. So the
constitution protects only whatever survived the Grundnorm, rather than stopping
it. Henderson’s test: the federal government’s willingness to make restitution “will
be the litmus test”. Little Bear’s conclusion is that Indian nations are more and
more convinced Canada will go on following its own norms.
St. Catharine’s Milling and A timber and boundary dispute between Ontario and Ottawa, not an Indian case.
Lumber Co. v. The Queen (1888) The Privy Council held that the Indian interest was only “a personal and
(MUST) usufructuary right”, a mere burden on the Crown’s underlying title. It set the
standard for Aboriginal title in Canada.
Usufructuary title (MUST) The right to use, occupy and enjoy land and its fruits without owning it in fee
simple. Little Bear and Opekokew both trace the phrase to St. Catharine’s Milling;
Hall J. in Calder defined it as a right to occupy the lands and enjoy the fruits of the
soil.
Calder v. Attorney General of The Nishga case. Its importance is that it recognises prior occupancy from time
British Columbia (1973) (MUST) immemorial as a basis for Aboriginal title, so title can exist independently of the
Royal Proclamation of 1763. With St. Catharine’s it sets out Canada’s rule on title.
The Vienna Convention Green quotes it: “an international agreement concluded between States in written
definition of a treaty (Green) form and governed by international law.” Because Indian nations were not held to
(MUST) be states, he concludes that Crown–First Nations agreements fall outside the
definition and are not treaties in the strict sense.
“As if treaty-like in character” Green’s concession. Government after government and court after court described
(Green) (MUST) these agreements as treaty-like for a hundred years, so the Crown is morally
bound. Terms should be read as both parties understood them, and against the
party that drafted them.
The spirit and intent of the Opekokew’s central claim: “The written treaties do not correspond with the spirit
treaties (Opekokew) (MUST) and intent of the treaties as understood by Indian people.” She lists as a breach
that all future dealings were to rest on that spirit and intent, and that the treaties
were to supersede later legislation.
The depth of a plough (MUST) Opekokew reports the Treaty 4 Elders: the Commissioner said the white men
wanted land to farm only to the depth of a plough, most often given as six inches.
Everything below that depth, and land that could not be farmed, was never ceded.
The pipe ceremony (MUST) Opekokew describes the people advancing in a semi-circle at Treaty 6 and
stopping to smoke the pipe — “a very sacred experience for Indian people and an
integral part of Indian religion”. Morris missed the meaning, calling it only a token
of good feeling.
Opekokew’s five principles Retained sovereignty; an ongoing developmental relationship with the Crown; a
guaranteed in perpetuity share of tax revenue; a political protocol of annual treaty reviews; and the rule
(SHOULD) that the Indians’ interpretation supersedes all others.
8
,Unit 2, Section 4: The numbered treaties, 1871–1923
Term Meaning
Section 91(24), British North “Indians and Lands reserved for Indians” are a federal head of power. After
America Act, 1867 (MUST) Confederation only the federal government could make treaties with Indian
people, which is why every numbered treaty from 1871 onward is an agreement
with the Crown in right of Canada.
The Fertile Belt treaties, 1871– Treaties 1 to 7, made to open the prairie Fertile Belt to farming settlement. They
1877 (MUST) promised tools, livestock and seed grain so that Indian people could farm in place
of the vanishing buffalo. The course reading says the aim was preparation for
eventual assimilation.
The northern resource treaties, Treaties 8 to 11, made after prospectors and speculators pushed into northern
1899–1921 (MUST) Alberta, Saskatchewan, British Columbia, the Yukon and the North-West
Territories. Their purpose was the cession of land rich in petroleum — the
Athabasca tar sands — and in silver, copper, iron and gold.
Treaty No. 6 (1876) (MUST) Made near Carlton on 23 and 28 August and near Fort Pitt on 9 September 1876,
between Queen Victoria, through her Commissioner Alexander Morris, and the
Plain and Wood Cree and other tribes. Adhesions ran from 1877 to 1956 by Cree,
Assiniboine and Dene people.
“Cede, release, surrender and The surrender formula in the written treaty. The tribes “do hereby cede, release,
yield up” (MUST) surrender and yield up to the Government of the Dominion of Canada, for Her
Majesty the Queen and Her successors forever, all their rights, titles and privileges,
whatsoever, to the lands” inside the described limits.
The medicine chest clause Unique to Treaty 6: “That a medicine chest shall be kept at the house of each
(MUST) Indian Agent for the use and benefit of the Indians at the direction of such agent.”
It was asked for because European epidemics, above all smallpox, were destroying
plains populations.
The famine and pestilence Also unique to Treaty 6. If the Indians are overtaken by any pestilence or by a
clause (MUST) general famine, the Queen, once satisfied and certified by her Indian Agent, will
grant assistance of such character and extent as the Chief Superintendent of
Indian Affairs thinks enough to relieve the calamity.
The four corners of the The strict approach of reading a treaty only by the words physically inside it,
document (MUST) ignoring oral promises and historical context. Barkwell argues the courts should
soften it by admitting historical evidence, such as Father Scollen’s letter and
testimony about the original Indian understanding.
Dreaver v. The King (1935) The first medicine chest case. In the Exchequer Court, Angers J., relying on Chief
(MUST) Dreaver who was twenty when Treaty 6 was signed, ruled that the clause meant
all medicines, drugs or medical supplies required by the Indians of the Mistawasis
Band were to be supplied free of charge.
R. v. Johnston (1966) (MUST) The trial magistrate read the medicine chest and pestilence clauses together as
entitling Indians to all medical services free. The Saskatchewan Court of Appeal
reversed, Culliton C.J.S. holding that on the plain reading the clause means no
more than the words clearly convey.
Section 88 of the Indian Act Knoll quotes it: subject to the terms of any treaty and any other Act of Parliament,
(MUST) all laws of general application in force in a province apply to Indians. It shields
treaty rights from provincial law, but, per R. v. George, not from federal statutes.
The Natural Resources Transfer Agreements transferring resource ownership to Alberta, Saskatchewan and
Agreements, 1929–1930 (MUST) Manitoba, embodied in the British North America Act, 1930, so they carry
constitutional force. They assure a right of hunting, trapping and fishing for food,
at all seasons, on all unoccupied Crown land.
Indian halfbreeds in Treaty Long shows the commissioners — Duncan Campbell Scott, Samuel Stewart and
No. 9 (1905) (MUST) Daniel MacMartin, the first provincial representative in a post-Confederation
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,Term Meaning
treaty — went out with no instructions on halfbreed claims. At Fort Albany they
admitted over thirty: “halfbreeds by origin, Indians by decree of the
commissioners.”
The Migratory Birds Convention The Convention of 1916 and the Act of 1917. Knoll treats it, with the Fisheries Act,
Act (SHOULD) as a federal statute that limits the treaty right to hunt, since section 88 of the
Indian Act protects treaty rights from provincial law but not from federal law.
Unit 2, Section 5: First Nations understanding of the treaty terms
Term Meaning
The forked tongue (Cardinal) Cardinal’s title image. The old western-movie line that the white man speaks with
(MUST) a forked tongue still stings because it is true. Where the government now denies
promises it once made, its statements amount to an entire society’s lie — the
betrayal of the Indian people.
Oral tradition against the Indian negotiators spoke Indigenous languages, did not write English, worked
written record (MUST) through interpreters, and did not know that a judicial system existed to arbitrate.
The commissioners knew that written promises carried more legal weight than the
spoken ones they could later disclaim.
“As long as the sun shines and The formula of permanence. Okeymaw recalls the commissioner saying: “This will
the rivers flow” (MUST) be in effect as long as the sun shines and the rivers flow. He used these two oaths
in sincerity.” O’Chiese says the people expected the deal to hold on those terms.
The pipe, the stem, the sweet- Harold Cardinal, in Price, explains that the stem stands for the straight road, the
grass and the fire (MUST) stone pipe for the strength to keep the faith, and the fire for the source of life and
food. So “we do not give you our timber” meant they did not give the pipe stem.
The six inches (MUST) John Buffalo’s grandfather’s account: the commissioners took only land the
settlers could farm — “anything underground would not be given up, only six
inches, enough for the settlers to grow crops” — and if anything were discovered
below the surface, half its value would go to the Indians.
What the Elders say was not Buffalo: the game animals, the timber and the big lakes, kept as the means of
surrendered (MUST) survival; land unfit for farming; and the mountains, never even mentioned. Gibot
adds that gold, minerals and petroleum below the surface were never discussed by
the commissioner at all.
The rewriting in Ottawa (MUST) Buffalo’s charge, and the Elders’ core account of the gap between the spoken deal
and the written treaty: “When they took the papers back to Ottawa, they made
them so that the government could claim all of Canada. They did not ask
permission here to do that.”
Two understandings, one Harold Cardinal, in Price: “He wrote his treaties from his understanding and we
Creator (MUST) wrote ours from our understanding.” Because the same kind Creator made both
original peoples and dealt fairly with both, there is a present responsibility to
reach a settlement that satisfies both sides.
Annuity (MUST) A yearly payment of a fixed amount, given as a right, for life. Under the numbered
treaties it was five dollars per person per year, with larger sums and a suit of
clothing every three years for chiefs and headmen. The Elders cite it as a promise
still owed.
In perpetuity (MUST) Forever. It is the legal counterpart of the Elders’ “as long as the sun shines and the
rivers flow”, and the basis of Cardinal’s argument that the treaties are living
agreements rather than historical relics that can be cancelled when they become
inconvenient.
Usufruct (MUST) The right to enjoy or use the fruits of something belonging to another, without
destroying or wasting it. It is the concept Canadian courts use to describe Indian
land rights, and the reason Indian title is treated as occupancy rather than
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