1 Pre-Confederation

British America and New France were both initially established as trading posts, then as colonies of their mother countries in the late 1500s through the early 1700s with the assistance of Indigenous persons in modern-day northeastern United States and eastern Canada.

In the 1750s, the French and Indian War was a theatre of the Seven Years’ War fought between Great Britain and France. British colonialists led by James Wolfe triumphed over New France led by Montcalm in the Battle of the Plains of Abraham (Eccles, 2021). However, that victory was not achieved without help from the Iroquois Confederacy, also known as the Five Nations: the Mohawk, Onondaga, Oneida, Cayuga, and Seneca (Bleiweis, 2013).

A problem arose in the aftermath of the French and Indian War. Colonials in British America, in search of new land, were travelling west into the continent. On their way, they purchased or stole lands from Indigenous persons, and asked their government to protect their newfound property. This westward expansion by colonialists was characterized by underhanded tactics, including alleged “sales” taking advantage of language disparities. Great Britain, cognizant of the critical assistance of the Iroquois Confederacy during the French and Indian War and the ceaseless expansionism of her colonial subjects, sought to manage the situation. In 1763, King George III issued a Royal Proclamation, which still applies in Canada today:

And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them or any of them, as their Hunting Grounds…

And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments….

And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved without our especial leave and Licence for that Purpose first obtained. (King George III of England, 1763)

While paternalistic in tone, the Royal Proclamation is foundational for Aboriginal title in Canada. Individual British subjects are unable to purchase land directly from an Indigenous group. Instead, only the government (also called “the Crown”) can purchase lands from Indigenous groups. In British Columbia, many of these lands have not been purchased by the Crown, and are therefore unceded.

In 1763, this Royal Proclamation was an outrage to future American revolutionaries in the Thirteen Colonies. Land on the eastern seaboard was becoming more scarce for settlers as the region was populated, and so they started migrating west. When the Royal Proclamation arrived, it was seen as an overstep on the Crown’s power over its colonies. The blowback from colonists was so extreme that the Royal Proclamation became one of the enumerated reasons for the rebellion in the United States Declaration of Independence, penned in 1776 by future U.S. President Thomas Jefferson (Paul, 2018).

After the United States won independence from Great Britain in 1783, the following century saw American expansion over most of the continent with little regard to the original inhabitants of the land. In one case, the state of Georgia was imposing its law on the Cherokee Nation, and the Nation, via a legal technicality, did not have the right to pursue their claim in court. However, two white missionaries who wished to live on Cherokee land did have standing to pursue a legal remedy. In 1832, in the case of Worcester v. Georgia, the Supreme Court of the United States said that the state of Georgia could not impose its law on Cherokee lands. President Andrew Jackson, who did not want to strain the already fragile bond of the Union, refused to enforce the judgment (Paul, 2018). The cost was an immense human tragedy. This series of events led to the heartbreaking Trail of Tears, in which 12,000 people were forcibly marched 1,300 kilometres. Four thousand of those people never made it. Not only was this tragic event permitted in order to avoid a conflict between the national government and the Southern states, but the American Civil War occurred anyway not three decades later (National Park Service, 2020).

In Canada, Great Britain continued to assert its role in governing Canada until the British North America Act, 1867 (the first of Canada’s two constitutions). After, the Government of Canada assumed responsibility for its relationship with First Peoples. To this day, the federal government remains responsible for the Crown’s relationship with Indigenous Peoples, although the provinces have been active partners in guiding the actions of the federal government.