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Mapping the Legal Consciousness of First Nations Voters: Understanding Voting Rights Mobilization

A Brief History of First Nations Voting Rights

A brief history of the evolution of First Nations voting rights provides the key to situating the legal consciousness of First Nations voters. The standard Canadian history of voting rights over the past 150 years is one of the gradual expansion of the suffrage from a very small elite to working class men to women to young adults. This is the history Chief Justice McLachlin makes reference to in the opening epithet of this paper, when she refers to "Canada's steady march to universal suffrage". An examination of the history of Aboriginal voting rights suggests, however, that for First Nations the march has not been "steady" but rather looped and weaved.

From Confederation until 1920, First Nations had no right to vote in federal or provincial elections. The right to vote during this period was regulated by the Indian Act, which held that "registered Indians" were not permitted to vote in federal elections. (The terms First Nations and Indian – status and non-status – are used interchangeably here, although the latter is used principally because of its frequent usage in legislation and policy statements.) The Indian Act viewed Indians as wards of the state, incapable of managing their own affairs, and the appropriate subjects of paternalistic measures designed to serve their own best interests, even if Indians themselves contested that such measures genuinely were in their own best interests. The point is that during this period, Indians were judged as unworthy and not deserving of the right to vote.Footnote 18

The Indian Act, 1876, introduced the idea of 'voluntary enfranchisement'.Footnote 19 As Larry Gilbert explains it,

Enfranchisement was the surrender of Indian status and band membership in return for Canadian citizenship and the right to hold land in fee simple. It was based on the theory that aboriginal peoples in their natural state were uncivilized. Once an aboriginal person acquired the skills, the knowledge and the behavior valued by the civilized society, the aboriginal person might qualify for citizenship.Footnote 20

The Indian Act, 1876, allowed Indians to apply for enfranchisement. Applicants who were doctors, lawyers, a Notary Public, minister or priest, or completed a university degree automatically had their applications approved, giving them the right to vote and enabling them to take their share of the land out of the reserve and own it privately. Other Indians who applied for enfranchisement were subject to a review where upon approval they would be "converted" into a "probationary Indian" for three years. After three years, they would then be able to vote and take their share of land out of the reserve.Footnote 21 From 1876 until 1920, only 250 Indians successfully applied for enfranchisement.Footnote 22

The significance of enfranchisement is that legally an individual could either be an Indian or a voter. There is nothing comparable in Canada in the history of the "steady march to universal suffrage". The granting of the right to vote to women, for example, was not conditional on them ceasing to be women. Nor was there an analogous requirement for those in mental institutions or prisons or between the ages of 18 and twenty-one years. For these marginal groups, inclusion in the suffrage was genuinely an achievement. For First Nations, there was nothing to celebrate.

In 1920, the Indian Act was amended to allow for a process of 'involuntary enfranchisement' for men from First Nations communities. In effect, rather than having individuals initiate the application for enfranchisement, this process involved identifying individual Indian males who were "deserving" of enfranchisement and pressuring them to apply for enfranchisement.Footnote 23 The impetus for this amendment was the low number of individuals who opted for voluntary enfranchisement. After two years, objections from First Nations communities lead to the repeal of this amendment, although the route to voluntary enfranchisement was preserved.

However, it is important to recognize that for women and children from First Nations communities, involuntary enfranchisement was an inherent feature of the enfranchisement provisions of the Indian Act until 1951. The reason for this is that when men applied for enfranchisement, their wife and children were automatically considered enfranchised, even if they were not specified in the application. Beginning in 1951, male applicants applying for enfranchisement were required to include reference to women and children in order for them to also be enfranchised, although of course until 1985 Aboriginal women were losing their Indian status when they married someone who did not have Indian status.Footnote 24

In 1960, Parliament enacted the Canada Elections Act which granted all "registered Indians" the right to vote. The relevant context for this legislation was three-fold. The first important factor was the negative international attention that the American South was receiving for its denial of voting rights to African Americans. Second was the passage of the Canadian Bill of Rights in 1960, which made reference to equality and non-discrimination but did not include an explicit right to vote (in contrast to the 1982 Charter of Rights and Freedoms). Finally, this development was part of the main theme of the government's Indian policy since 1945 which involved a shift from traditional protection and paternalism towards "self-government for the Indian people" and "a policy of decolonization."Footnote 25

In 1948, a Special Joint Committee of the Senate and House of Commons proposed revisions to the Indian Act, "designed to make possible the gradual transition of Indians from wardship to citizenship and to help them to advance themselves… it be the duty and responsibility of all officials dealing with Indians to assist them to attain the full rights and to assume the responsibilities of Canadian citizenship."Footnote 26 Granting all Indians the right to vote in 1960 was part of that gradual transition.

What it actually meant in 1960 to grant all Indians the right to vote without condition remains contested. In the 1960s, two views emerged which to a large extent, nearly fifty years later, continue to frame the issue. One view was expressed clearly by another parliamentary committee in 1967. The Hawthorn Committee held, "Integration or assimilation are not objectives which anyone else can properly hold for the Indian…Indians should be regarded as 'citizens plus'; in addition to the normal rights and duties of citizenship, Indians possess certain additional rights as charter members of the Canadian community."Footnote 27 The identification of Indians as citizens plus by the Hawthorn Committee was intended to express the idea that Indians should enjoy the right to vote and other rights of citizenship as a complement to their distinctive identity and special status as Canada's First Nations.

The other view received its best known expression in the 1969 White Paper issued by the Trudeau Government, Statement of the Government of Canada on Indian Policy, 1969. A. D. Doerr provides a comprehensive summary of The White Paper 1969:

In substantive terms, the objective of the 1969 proposals was to promote the full and equal participation of Indian people in the social, cultural, economic and political life of Canada. Indians were to be given the same freedoms, rights and opportunities as other Canadians in addition to the recognition of their cultural heritage and identity as a vital element of a multi-cultural society. The basic assumption upon which the proposals were based was the principle of equality… It was the Department's [of Indian Affairs and Northern Development] view that the existing legislation institutionalized a system of apartheid and oppression… Land was the only area in which the federal government felt it had an obligation to continue to provide for special legislative protection to the Indian people… For all other intents and purposes, Indians were to become subject to the same laws which applied to other Canadians.Footnote 28

In practical terms, whereas the citizens plus view embraced special status for Indians, the alternative view advanced the idea of equal status for Indians.

Much of the criticism, especially by Indian organizations, of the equal status view was, and continues to be, that the effect would be the eventual assimilation. The reaction of the National Indian Brotherhood to the Trudeau Government's White Paper 1969 was, "If we accept this policy, and in the process lose our rights and lands, we become willing partners in cultural genocide. This we cannot do."Footnote 29 The irony is that a policy of equal status would ensue the same consequences as the enfranchisement provisions of the 1876 Indian Act: being ascribed the right to vote and other rights of citizenship excluded the possibility of continuing to be Indian. Special status, not equal status, was viewed as the policy route to avoid assimilation and cultural genocide.

Although all Indians gained the right to vote in 1960, the actual change in governance brought about by this development was minimal. In very few federal ridings are the number of registered Indian voters significant enough to affect who is ultimately elected. And in the past fifty years very few First Nations candidates have been successful.Footnote 30 By the time the Royal Commission on Aboriginal Peoples issued its final report in 1996, the whole issue of individuals from First Nations communities being included in the suffrage was a marginal concern in those communities. The right to vote was seen as neither a major achievement nor a vehicle for change.Footnote 31

Footnote 18 Canada. Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy: Final Report, vol. 4 (Ottawa: Canada. Royal Commission on Electoral Reform and Party Financing, 1991), 235–236; Jennifer Dalton, "Alienation and Nationalism: Is it Possible to Increase First Nation Voter Turnout in Ontario?" Canadian Journal of Native Studies 27, no. 2 (2007): 251–252.

Footnote 19 The distinction between voluntary and involuntary enfranchisement comes from Larry Gilbert, Entitlement to Indian Status and Membership Codes in Canada (Toronto: Carswell, 1996), p. 24.

Footnote 20 Ibid., 23.

Footnote 21 Ibid., 23–24.

Footnote 22 Joseph Carens, Culture, Citizenship, and Community: a Contextual Exploration of Justice as Evenhandedness. (Oxford: Oxford University Press, 2000), p. 186.

Footnote 23 Larry Gilbert, Entitlement to Indian Status and Membership Codes in Canada (Toronto: Carswell, 1996), p. 24.

Footnote 24 Ibid., 25. Clearly, there is scope here for considering the provisions of the 1869 Indian Act, which stripped Indian women who married non-Indians of their Indian status, as likewise de facto involuntary enfranchisement.

Footnote 25 G. Bruce Doern and V. Seymour Wilson, Issues in Canadian Public Policy (Toronto: MacMillan of Canada, 1974), 37.

Footnote 26 Richard H. Bartlett, The Indian Act of Canada, Second Edition (Saskatoon: University of Saskatchewan. Native Law Centre), 6, 21. The 1967 phrase "citizen plus" has been retrieved by Alan Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State (Vancouver: UBC Press, 2000).

Footnote 27 Henry B. Hawthorn, ed., A Survey of the Contemporary Indians of Canada: A Report on Economic, Political, Educational Needs and Policies, Vol. I (Ottawa: Department of Indian Affairs and Northern Development, 1966–1967), p. 13.

Footnote 28 A. D. Doerr, "Indian Policy," in Issues in Canadian Public Policy, ed. G. Bruce Doern and Seymour Wilson (Toronto: MacMillan of Canada, 1974).

Footnote 29 Ibid., 41.

Footnote 30 Jennifer Dalton, "Alienation and Nationalism: Is it Possible to Increase First Nation Voter Turnout in Ontario?" Canadian Journal of Native Studies 27, no. 2 (2007): 254–256.

Footnote 31 See Alan Cairns, "Aboriginal People's Electoral Participation in the Canadian Community," Electoral Insight 5, no. 3 (November 2003), While the Royal Commission on Electoral Reform and Party Financing (for which Cairns was the Director of Research) recommended the establishment of Aboriginal electoral districts with corresponding seats in Parliament, the Royal Commission on Aboriginal People recommended a separate Aboriginal legislative assembly.