by Darren O’Toole
Faculty of Law, University of Ottawa
|
When the District of Assiniboia [1] entered the Canadian federation as the Province of Manitoba, section 31 of the Manitoba Act, 1870 put aside 1.4 million acres of federal Crown lands for “the benefit of Half-Breed families” with the explicit objective of extinguishing the “Indian title” of the Métis and “Half-Breeds.” [2] Political scientist Thomas Flanagan has asserted that there are “difficulties with categorizing the Métis as an Aboriginal people” which are “partly historical and logical questions about the rightness of regarding the Métis as Aboriginal, and partly practical problems arising from any attempt to give legal substance to this concept.” [3] In terms of the historical question, Flanagan claimed the Métis neither “described themselves as an Aboriginal people with special land rights” [4] nor demanded “special treatment as an Aboriginal people” [5] and that the various Lists of Rights they wrote up show that their consistent demand “was not for a land grant to extinguish their aboriginal title but for local control of public lands.” [6] I have endeavoured to show elsewhere that the Métis on both sides of the Canada-US border had previously made claims to Indian title, or at least to a derivative share in Indian title, [7] and that they specifically mandated Reverend Noël-Joseph Ritchot [8] to negotiate a land grant on their behalf as compensation for the surrender of their Indian title. [9] I have also made some initial inroads towards developing a legal doctrine that answers some of “the practical problems arising from any attempt to give legal substance to this concept.” [10]
There are, however, two aspects of the question of historical justification that I was unable to deal with. In the first place, Flanagan claimed Riel “skirted the question of Métis title” during the Resistance. [11] While I endeavoured to demonstrate that there was an implicit demand for a territorial enclave in the various Lists of Rights, I did not attempt to explain why the Métis were not more up front about their land claims during the Resistance. Moreover, to support his claim that the land grant in section 31 was simply “an act of political expediency not based on cogent reasoning,” [12] Flanagan relied on a statement made by Ritchot before the Legislative Assembly of Assiniboia that the “Half-Breed title, on the score of Indian blood, is not quite certain. But in order to make a final and satisfactory solution, it was deemed best to regard it as certain.” [13] The examination of this question is not merely academic, but is all the more timely in that Flanagan’s opinions have recently been adopted in juridical discourse. Flanagan acted as expert witness for the federal Crown in the case Manitoba Métis Federation v. Canada and Manitoba beginning in 1986. [14] The plaintiff claimed inter alia that the federal government had not fulfilled its obligations towards the Métis people under sections 31 and 32 of the Manitoba Act. [15] In his finding against the plaintiff, MacInnes J. explicitly referred to the debate of the Convention of Forty over article 15 of the draft version of the second List of Rights, [16] and concluded that the “sentiment expressed” during the debate “drew clear distinction between the rights and treatment of Indians as compared to the rights of the half-breeds as civilised men and the differentiation of the two.” [17] Further on, MacInnes J. claimed that the Red River delegates, and their principals, knew that the meaning of the reference in the [Manitoba] Act to the land grant being towards the extinguishment of Indian title was not clear” and quoted the aforementioned statement made by Ritchot to the effect that the “half-breed title, on the score of Indian blood, is not quite certain.” [18]
Admittedly, the fact that the Provisional Government mandated Ritchot to negotiate section 31 does not ipso facto render the underlying reasons for the recognition of Métis “Indian” title any more cogent and it certainly does not help matters that the very person who negotiated the surrender of the Indian title of the Métis seemed uncertain whether its logical underpinnings were sound. It is my contention here that by viewing Ritchot’s utterance as a speech-act, [19] “the essential question […] in studying any given text, is what the author, in writing at the time he did write for the audience he intended to address, could in practice have been intending to communicate by the utterance of this given utterance.” [20] This article will first look at the practical political context in the District of Assiniboia in 1869 to see how “political life itself sets the main problems for the political” actors, since it causes “a certain range of issues to appear problematic, and a corresponding range of questions to become the leading subjects of debate.” [21] It will then present the speech-acts of both Métis and Half-Breed spokespersons around the issue of Indian title. To comprehend their respective positions on this subject, one must reconstruct the “general social and intellectual matrix” [22] within which their speech-acts must be situated. [23] One way of understanding their disagreement on the issue is to take into account how the Half-Breeds (re)formulated their identity at the material time. This involves treating “Indian title” as an inter-subjective “convention”, the meaning of which was largely determined within the juridical field. [24] The ambiguity of some of Ritchot’s statements is perhaps better explained by the fact that he had to justify the recognition of Indian title in section 31 to both the Half-Breeds, who accepted the prevailing juridical convention of Indian title, and to the Métis, who contested it.
A group of Metis traders and their families were photographed by the 1872-1874 Boundary Commission photographers.
Source: Archives of Manitoba, Boundary Commission 164, N14100
In 1870, the population of the District of Assiniboia had grown to roughly 12,000 souls, of whom approximately 5500 were Métis and 4500 were Half-Breeds. [25] When Canada negotiated with the Hudson’s Bay Company (HBC) the conditions on which the latter would surrender its rights in Rupert’s Land to the Imperial Crown, neither the Métis nor the Half-Breeds took too kindly to the fact that they had been “sold as chattel.” [26] However, the Resistance to annexation was initially limited to the Métis section of the District, who formed a National Committee composed of twelve representatives using the structure of the bison hunt to form a militia. [27] The main objective of the Committee was to protest the failure of any party to consult them and negotiate the conditions of entry into Canada. As early as 12 October 1869, Governor McTavish [28] wrote that the Métis “consider if the Canadians wish to come here, the terms on which they were to enter should have been arranged with the local government here, as it is acknowledged by the people of the country.” [29] Riel effectively told the Council of Assiniboia on 25 October 1869 that the Métis “would never admit any Governor […] unless delegates were previously sent, with whom they might negotiate as to the terms and conditions under which they would acknowledge him.” [30] Joseph Provencher [31] reported to Lieutenant-Governor designate, William McDougall, [32] on 3 November 1869 that, “if the Canadian Government was willing to do it, they were ready to open negotiations with them, or with any person vested with full powers, in view of settling the terms of their coming into the Dominion of Canada.” [33]
Clearly, the “logic of the situation demanded that the Métis seek the support or at least the benign neutrality of the English Half-breeds and white settlers. There was little hope of gaining concessions from Canada if the Colony was openly divided. Thus his speeches and manifestos were always addressed to the people of Red River or the North West, not to the Métis nation narrowly defined. He spoke for the alleged rights of all settlers.” [34] Not surprisingly, “Riel wanted a broader base for his programme of action, which was nothing less than to negotiate with the government of Canada the “terms and conditions” on which Red River would enter Confederation.” [35] To this end, “Riel, before any rising took place, went about visiting the English settlers, asking them to take some united steps in company with the French, to protest against the policy proposed by the Canadian Government.” [36] In effect, Riel told the Council of Assiniboia that the Métis considered “that they are acting not only for their own good, but for the good of the whole Settlement.” [37]
The main obstacle to cooperation between the Métis and Half-Breeds is said to be “the French and Catholic tinge” of the Resistance, which “made it extremely difficult for Riel to build any settlement-wide consensus.” [38] It is certainly true that “Riel’s people” only extended to “the French-speaking element of the Western half-breeds.” [39] As Jennifer Brown noted, The Collective Writings of Louis Riel [40] “as a whole, lend support to de Tremaudan’s [1984] thesis that the Metisism of Riel was resolutely Catholic and French in orientation.” [41] This would explain why, while there “can be no doubt but that the nationalist feeling” was one of the “cohesive forces which held together the [French] Half-Breeds in the disturbances of 1869–70,” it does not “figure largely in the documents or in Riel’s public utterances.” [42] In effect, “one will not find many public statements by Riel or other Métis leaders reflecting this specific nationalism.” [43] It is said that, if Riel was “reluctant to use nationalist rhetoric,” it was because it “might prove divisive” [44] and can therefore be attributed “to tactical considerations […] so as not to drive away possible support from the English of the Colony.” [45]
In effect, while “Riel did go so far as to name his newspaper The New Nation,” [46] the Métis apparently downplayed their specific nationalism, claiming “to be a nation, already, along with the English half-breeds, whom they claim as their brethren, in possession of this country.” [47] In addition, when the Métis National Committee met the twelve representatives of the protestant parishes during the first Convention of Twenty-Four, they were hesitant to publicly declare their policy. Begg remarked that when the Convention met on 16 November, “there appeared to be an evident desire on the part of Riel to conceal the policy of his party from the English-speaking members.” [48] Again on 17 November, the “French adhered to their seeming desire to conceal their policy.” [49] After the meeting on 22 November, “the French had not declared their policy.” [50] This would seem to support the argument that the Métis avoided making nationalist demands “narrowly defined” that might prove divisive, but continued harbouring them as part of a hidden agenda.
However, in terms of the “French and Catholic tinge”, the Métis openly pushed for official status for the French language in all four Lists of Rights and there is no indication of any opposition to such demands on the part of English-speaking settlers. [51] In terms of religion, Riel tried to assure the English at a public meeting on 26 November 1869 that “the government was not one of religion, as he said had been rumoured.” [52] While this is an indication that the Half-Breeds were concerned about the “Catholic tinge” of the Resistance, Riel’s reassurances were not simply a ploy to conceal his “real” agenda: it quite simply was not part of his agenda. [53] If the demand for denominational schools appeared in the fourth List, it was added at Bishop Taché’s insistence, not Riel’s. [54]
On the other hand, Begg implied that what the Métis were concealing was their land claims when he commented that “there was no word [in the List of Rights] with regard to a land grant to the natives of the country, [but] there was every reason to suppose that it was being held as a point in reserve for a future day.” [55] Contrary to what Ens claims, “Riel’s paradigm of Métis communitas in 1869” in fact included a “paradigm of resistance based on a theory of aboriginal rights.” [56] Yet, as A. S. Morton observed, “the conviction that the land was theirs” does not “figure largely in the documents or in Riel’s public utterances.” [57] W. L. Morton also believed that land claims lurked “in the background of the Resistance, even if it was not in the list.” [58] The question is why the Métis “skirted the question of Métis title” during the Resistance. [59]
It seems all the more curious when one recalls that the Half-Breeds had previously put forward similar claims. Corbett reported that “the people”—undoubtedly the Half-Breeds in Headingley – claimed to be “the original proprietors of the soil.” [60] In 1860, several Half-Breeds, including William Hallett and George Flett, were among those “who warmly advocated the rights of the Half-Breeds to the land.” [61] In 1861, the Half-Breed lawyer, Alexander Isbister, argued that since “every married woman and mother of a family throughout the whole extent of the Hudson’s Bay territories” was of mixed ascendance, she, along “with her children, [was] the heir to all the wealth of the country.” [62] One can see why Ens believed that an opportunity to build a consensus in the Settlement was lost when “the aboriginal-rights paradigm disappeared from public view in Red River.” [63] After all, as Flanagan pointed out, “a land grant […] would apply to English half-breeds as well.” [64] Yet, when Riel finally raised the issue in public during the sitting of the Convention of Forty, it was the Half-Breed spokespersons who emphatically rejected it.
The Reverend George Flett (1817–1897) translated psalms and hymns into Cree and Saulteaux. He also worked as an interpreter, farm instructor, and building foreman.
Source: Archives of Manitoba, Personalities - Flett, George 1.
During the sitting of the Convention of Forty to discuss the second List of Rights, the members opened discussion of clause 15 on 1 February 1870. This clause demanded that “treaties be concluded between the Dominion and the several Indian tribes of the country.” Riel took the floor and asked rhetorically:
Had the Indians the whole claim to the country? […] Are Indians the only parties in the country who have to be settled with for land claims? If so, all right. But if there is some section for which the Half-breeds would have to be dealt with, then the article as it stood was too general. I have heard of Half-breeds having maintained a position of superiority and conquest against the incursions of Indians in some parts of the country. If so, this might possibly be considered to establish the rights of the Half-breeds as against the Indians. [65]
In order to interpret Riel’s speech-act, we must try to recover the historical meaning of his locutionary act, that is, “the sense and reference of the terms included” in the mere act of saying something. [66] While Riel explicitly made a collective land claim here, he did not ground it in Indian title, but instead evoked the doctrine of conquest against Indian title. The locutionary act—what was said—must be distinguished from the illocutionary act—why the utterance was made. In other words, understanding Riel’s act of illocution is equivalent to understanding his primary intentions in issuing this particular utterance. [67] While Riel’s locutionary act emphasizes the justification for a land claim, his colleague’s intervention suggests that his illocutionary act is arguably less concerned with the source of Métis title than compensation for its extinguishment. When Thibert expressed that his “own idea is that reserves of land should be given to Half-breeds for their rights,” [68] he made no attempt to clarify just what those rights were.
In his response to Riel, George Flett completely ignored Riel’s locutionary act, which explicitly referred to the doctrine of conquest, and instead placed Riel’s claim squarely in the traditional Métis doctrine of derivative Indian title:
For my part, I am a Half-breed but far be it from me to press any land claim I might have as against the poor Indian of the country (hear, hear). Let the Indian claims be what they may, they will not detract from our just claims. We have taken the position and ask the rights of civilized men. [69]
Likewise, when James Ross took the floor immediately after Flett, he also understood Riel’s oblique reference to Métis land claims in terms of Indian title and elaborated even more fully on Flett’s evocation of the colonial dichotomy between the “rights of civilized men” and “Indian claims”:
Mr. Ross – As a Halfbreed of this country, I am naturally very anxious to get all rights that properly belong to Half-breeds. I can easily understand that we can secure a certain kind of right by placing ourselves on the same footing as Indians. But in that case, we must decide on giving up our rights as civilised men. The fact is, we must take one side or the other – we must either be Indians and claim the privileges of Indians – certain reserves of land and annual compensation of blankets, powder and tobacco (laughter) – or else we must take the position of civilized men and claim rights accordingly. We cannot expect to enjoy the rights and privileges of both the Indian and the white man. Considering the progress we have made, and the position we occupy, we must claim the rights and privileges which civilized men in other countries claim. [70]
In other words, Flett and Ross did not respond to Riel’s locutionary act, but to its illocutionary force. The “illocutionary force carried by our utterances are mainly determined by their meaning and context.” [71] In other words, a locutionary act can contain meanings that are embedded in the inter-subjective conventions one is wielding and can either exceed or fall short of the author’s illocutionary intention. To be sure, Riel’s reference to the doctrine of “conquest”—or at least of military defence—was in fact a commonplace way of justifying territorial claims among the Métis. As early as 7 November 1851, Governor Ramsey of the Minnesota Territory recorded that the Métis claimed “it was they who possessed the country really and who had long defended and maintained it against encroachment of enemies.” [72] However, the context in which Riel raised Métis territorial claims was precisely that in which the Métis had invariably raised the issue of their title in the past. [73] The matter before the Convention was treaties with Indians and by discussing Métis title in this context, Riel was closely associating it with the surrender and extinguishment of Indian title. It is little wonder that Ross and Flett inferred from Riel’s statement that he was really grounding land claims in the doctrine of derivative Indian title in spite of his explicit reference to the doctrine of conquest.
When Riel once again took the floor, he attempted to side-step Ross’ activation and reinforcement of the application of the principle of the excluded middle to the rights of “civilised men” and “Indian title” as well as the association of Métis claims to the latter. Riel seized on Ross’ reference to “civilized men in other countries” and again invoked the doctrine of conquest to put Métis land claims on par with civilised nations: “The Half-breeds have certain rights which they claim by conquest. […] Great Britain holds most of her possessions by right of conquest.” [74] Riel’s invocation of the doctrine of conquest was arguably due to his focus on his speech-act as a perlocutionary act. [75] That is, Riel’s speech-act was more concerned with the effect or response that he hoped to bring about—Half-Breed support of land claims—than with communicating his innermost thoughts concerning the source of Métis title. That being said, four years later, Thomas Bunn [76] stated in his deposition to a Parliamentary Select Committee that the Métis “claimed that the country belonged to the half-breeds under the same kind of title by which Indians claim, by birth, residence and occupation,” but also insisted that the “English half-breeds do not make this kind of claim.” [77] Of course, some Half-Breeds, such as William Hallett, did continue to claim that the Métis and Half-Breeds, along with the Indians, had better title to the territory than the HBC. [78] Nevertheless, the emphatic rejection of land claims grounded in Indian title on the part of the Half-Breed representatives at the Convention explains why Riel tried to avoid phrasing Métis land claims in terms of derivative Indian title when he finally did raise the issue in public.
Journalist James Ross (1835–1871) returned to the Red River Settlement on the eve of the 1870 uprising. He was the only Anglophone mixed-blood who had the stature and ability to oppose Louis Riel on equal terms, and his equivocal support for the resistance was a crucial factor in its success.
Source: Archives of Manitoba, Personalities - Ross James 4, N4796.
If we now have a fairly good idea why the Métis skirted the issue of derivative Indian title, it shifts the focus of our inquiry to that of the reasons why the Half-Breeds were so opposed to such demands. The trajectory of Flett is all the more curious, since he supported Indian title claims nine years previously. To be sure, a vestige of Flett’s earlier claims might be implied in his reference to “any land claim I might have.” Ultimately, however, what he calls “our just claims” are “the rights of civilized men.” In order to understand Flett’s trajectory, it is important to recall that the use of the term “Half-Breed” as a self-ascription only began in the 1830s when the social mobility of mixed-bloods within the HBC was increasingly limited. [79] By the end of the 1840s these mixed-bloods “no longer saw themselves as English” and when “acting in concert with the Métis they used the term ‘Half-breed’ to refer to their collective interest.” [80] However, the contrast between Flett’s position on Indian title in 1860 as compared to that of 1870 would seem to confirm Pannekoek’s contention that “the Half-breeds had reoriented their identity to Canadian rather than mixed-blood or Métis in 1863-9.” [81] It is certainly true that some leading Half-Breeds, such as Captain William Kennedy and James Ross, had connections in Canada West and actively promoted annexation to Canada West in 1857 and 1859, respectively. [82]
However, Pannekoek’s argument that it was under the influence of Reverend Corbett [83] that the Half-Breeds “were coming to think of themselves as English men rather than as mixed-bloods” and consequently “abandoned much of their mixed blood heritage” in the early 1860s is more problematic. [84] First of all, Alexander Isbister had evoked the possibility of either incorporating the District of Assiniboia into Canada or establishing a distinct Crown colony some ten years before Corbett was to promote Crown colony status in 1858. [85] Second, it is doubtful that men like Ross, who was more educated than most Euro-Canadian settlers of the day with a law and master’s degree from the University of Toronto, or Kennedy, who was educated in Scotland, needed an outsider like Corbett to tell them how and what to think. Third, the fact that it was Hallett, leader of the Half-Breeds’ bison hunt, [86] and a group of thirty Half-Breeds that broke none other than Corbett himself out of prison on 14 April 1863 [87] shows they were perfectly capable of leading and organising themselves without Corbett. Fourth, while Corbett expressed the demands of the Half-Breeds for “representative government in the colony” as early as 1857, [88] he also voiced their land claims as “original proprietors of the soil.” [89] It is not clear that he ever attempted to turn the Half-Breeds away from their mixed-blood heritage or saw it as an obstacle to claiming full political rights.
Even more questionable is Pannekoek’s claim that a leadership vacuum left the Half-Breeds confused and depressed due to the lack of a strong identity and that they consequently resorted to alcohol to assuage their psychic angst. [90] He portrays William Hallett as looking to the Canadian faction “for direction” and suffering from “a personal instability” that resulted in his committing suicide. [91] This depiction of the Half-Breeds as psychologically unstable and incapable of self-direction is a typical example of colonial narratives that can be traced back to Francis de Vitoria. The latter hesitantly asserted that, “if the barbarians were in fact all mad, […] princes would be bound to take charge of them as if they were simply children. In this respect, there is scant difference between the barbarians and madmen; they are little or no more capable of governing themselves than madmen, or indeed than wild beasts.” [92] It was precisely this colonial dichotomy that portrayed the Half-Breeds as inherently incapable of governing themselves that lay behind the HBC’s refusal to allow for the election of the Council of Assiniboia and that consequently led to the disaffection of the Half-Breeds.
More importantly, during the debate between the Métis and Half-Breeds on the score of Indian title, Flett and Ross described themselves neither as Englishmen nor as “Canadians.” Flett clearly stated “I am a Half-Breed,” as did Ross: “As a Halfbreed of this country […].” Furthermore, Ross spoke of being “naturally very anxious to get all rights that properly belong to Half-breeds,” not “that properly belong to us as Englishmen.” Of course, what he meant by “rights that properly belong to Half-Breeds” was “rights as civilised men”. The subtlety that Pannekoek failed to take into account was that the Half-Breeds were not claiming the rights of “Englishmen” or “Canadians”, but those that they share with both groups as British subjects. Much like their Scottish forefathers, who could claim the rights and privileges of British subjects qua Scotsmen, the Half-Breeds were claiming the rights of British subjects qua Half-Breeds. It is important to understand what they meant by the “rights that properly belong to civilised men.”
A. S. Morton was perhaps the first to remark that when twelve delegates from the Protestant parishes met with the Métis National Committee in the first Convention of Twenty-Four, “the necessity of putting forward issues that would bring the English-speaking settlers to the support of the movement.” [93] Now, the priority of the Half-Breeds in 1869—and the principal reason why they were willing to support the Métis—was to fight for an elected assembly, which in turn implies full political rights. During the Convention of Twenty-Four, several delegates of protestant parishes in fact expressed support for the Métis Resistance. On 20 November 1869, Thomas Bunn “avowed his intentions openly today which were to stand up for the rights of the people which in a few words was a full and elective representation at the council board of the country. Maurice Lowman another delegate did the same thing as well as Mr. McKenney, the representative for Winnipeg Town.” [94] On 30 November 1860, William Tait is reported as expressing the same sentiments. [95]
Not surprisingly, the first article in the first List of Rights was that the “people have the right to elect their own Legislature.” [96] Although this was a traditional Métis demand that had been put forward before, during and after the Sayer trial in 1849, their strategy was undoubtedly to appeal to the political aims of the Half-Breeds, who saw this as one of their rights as British subjects. The rest of the first List of Rights was also arguably phrased, at least in part, to pander to Half-Breed interests. Stanley notes that there “was nothing there to cause dissension or destroy Riel’s hopes of solidarity or opinion among the French and English Métis.” [97] Indeed, when on 7 December the surveyor Colonel John Stoughton Dennis [98] “expressed a conviction that some agency was at work which had produced a change in the feelings of the people, and the gentleman present […] remarked that it might probably be accounted for by the distribution through the parishes, during yesterday, of the French ‘List of Rights’ […] some of them proving reasonable in their character.” [99]
One the one hand, the Half-Breeds had themselves put forward claims of derivative Indian title up until the early 1860s and the self-ascription “Half-Breed” showed an unflinching pride in their Indigenous heritage. Yet, they were not simply opposed to the Indian title claims of the Métis in 1869, but were so to the point that the issue risked causing serious division between the two groups. It is here that we must take a closer look at the convention of Indian title as a juridically determined inter-subjective convention.
By determining what the box of “Indian title”, as a linguistic convention, contained at the time, it will be possible to measure the political actors’ speech-acts as a discursive performance. In other words, it becomes possible to determine to what extent they were contesting or reinforcing conventions in order to open up or restrict the horizon of legitimate political action. One of the first pieces of legislation concerning Indigenous peoples passed in United Canada was the Act for the Better Protection of the Lands and Property of the Indians in Lower Canada in 1850. [100] While this act has oft been commented on because it provided the first legal definition of “Indian”, it is important to note the title and purpose of this act: to prevent “encroachments upon and injury to the lands appropriated for the use of the several tribes and bodies of Indians in Lower Canada.” In order to do so, a commissioner of Indian lands was appointed, in whom all Indian lands were to be vested in trust. For this reason, he was to “be held in law to be in the occupation and possession of any lands” despite the fact that they were “actually occupied or possessed by any such tribe or body in common, or by any Chief or member thereof.” [101] Furthermore, the commissioner was “entitled to receive and recover the rents, issues and profits of such lands and property, and shall and may, […] exercise and defend all or any rights lawfully appertaining to the proprietor, possessor or occupant of such land or property.” [102]
What this legislation established is a necessary corollary between claiming Indian title, which was held in trust, and Indian status, or wards of the Crown. The application of the law to the Métis and Half-Breeds would have placed any lands they actually occupied under the trusteeship of a commissioner. It is important to recall that one of the objectives of the Half-Breeds in claiming they were the “original proprietors of the soil” was to undermine the HBC’s title and thereby deny their right to collect payment for leasing the lands. [103] The HBC considered Half-Breeds who occupied land without the Company’s permission to be nothing more than squatters. Passing from the HBC regime to a commissioner would have been like jumping from the proverbial frying pan into the fire. A second effect is that it would not only have deprived the Métis and Half-Breeds of control over “the rents, issues and profits of such lands and property”, but would also have deprived them of the basic civil right to sue for real property damages and left it up to the whims of a commissioner. Finally, since only those having title in real property enjoyed the right to vote at the time, it would have definitively deprived them of the political rights they had been fighting for, albeit unsuccessfully, for the previous twenty years.
In terms of divisive issues, it is important to recall that the Convention of Twenty-Four actually broke up over the questions of allowing the Lieutenant-Governor to enter the territory and forming a provisional government. However, the Métis set up a roadblock on 17 October and Riel publicly announced the intention of the Métis to form a provisional government to the Convention on 24 November, [104] so it can hardly be said that they skirted these issues. What the Half-Breeds feared was that such acts would be construed as acts of rebellion against the Imperial Crown, that they would be branded traitors and consequently not only stripped of their political and civil rights, but also have their property confiscated. [105] Their opposition to Indian status was for precisely the same reasons: it would have stripped them of their political and civil rights and transferred the common law title of their property to the Crown. Again, it was immediately after Ross identified himself as a Half-Breed that he stated: “I can easily understand that we can secure a certain kind of right by placing ourselves on the same footing as Indians.” He then invoked what the Half-Breeds feared most: “in that case, we must decide on giving up our rights as civilised men. […] We cannot expect to enjoy the rights and privileges of both the Indian and the white man.” [106]
Now that the reasons underlying the disagreement between Riel and Ross are clear, it is much easier to understand Ritchot’s speech to the Legislative Assembly of Assiniboia. As a first step, Ritchot’s speech-act must be placed in the immediate context. Before he left Ottawa, Ritchot had sent a dispatch dated 14 May 1870 informing the Provisional Government that a military expedition was being sent to the Settlement [107] and an article on the cost of the expedition appeared in the New Nation as well as an excerpt of the Governor-General’s speech proroguing Parliament which referred to it. [108] As the latter article indicated that these were “Her Majesty’s troops” and therefore under British command, everyone in the Settlement would have known that any further armed resistance would no longer simply be resistance to unilateral annexation to Canada, but rebellion against the British Crown.
After negotiating the Manitoba Act in Ottawa, Ritchot arrived in the Settlement on 17 June 1870. On 23 June 1870, he received an official letter from the secretary of the executive of the Provisional Government, Thomas Bunn, informing him that the President summoned him to either submit a written or oral report to the Legislative Assembly. [109] The New Nation had published the Manitoba Act on 27 May 1870, so it is likely that all the members of the Legislative Assembly would have been aware of its contents a month before Ritchot’s speech. [110] It is important to recall just what was at stake. Ritchot’s instructions from the secretary had informed him that “you are not empowered to conclude finally any arrangement with the Canadian Government; but that any negotiations, entered into between you and the said Government, must first have the approval of, and be ratified by, the Provisional Government, before Assiniboia will become a province of the Confederation.” [111] According to his diary, Ritchot had also warned the ministers several times that it is not so much the delegates that must approve of the Act, but the people of the North-West. [112] When President Riel presented Ritchot to the Assembly on 24 June, Riel stated that “after reporting the results of his mission”, the members “would have an opportunity of judging of the issue [113] of their delegation to Ottawa.” [114] It was to these instructions that Ritchot was referring when he stated in his address that, “as delegates, we could not say if the people of the North-West would accept it.” [115]
As Flanagan has astutely observed, Ritchot skipped “most of the difficulties in the negotiations” and “gave a version of events calculated to win support for the act.” [116] During his speech, Ritchot’s perlocutionary act was therefore aimed at obtaining support for the Manitoba Act from both sections of the population and thereby guaranteeing its legitimacy. The worst possible scenario was one where troops would arrive in a divided Settlement to enforce an Act that half the population saw as being illegitimate. This perlocutionary act of maintaining unity is apparent after the Legislative Assembly’s unanimous vote in favour of the Manitoba Act. In his closing statements, Ritchot urged the members to put aside past differences: “Nor must we at this time think harshly of those who did not dare to come with us and demand rights; for it was a very risky and imprudent thing.” [117] He even conceded that, “if there were some among us who did not dare to oppose McDougall, they were, perhaps, right.” Finally, he noted that, “We have succeeded—but we have seen how difficult the task was. Why? Because we were divided. But now that we are united, we will be a strong people.” [118] Furthermore, Ritchot not only had to maintain unity, but also present himself as a credible figure of unity. To this end, he professed that he had “never tried to work against any part of the people. As one of the delegates, I brought the bill [of Rights] to Canada, and on that bill worked for the people of the country as a whole, without distinction.” [119]
To come back to the beginning of Ritchot’s speech, secretary Bunn had informed Ritchot that he “hardly needed to say that [the Members] are exceedingly anxious to hear the result of your mission to Canada.” [120] One would expect that the source of this anxiety was the silence of the Act concerning the amnesty question for those who had participated in the Provisional Government, and notably in Scott’s execution. But as we have seen in the debate between Riel and Ross, it was the question of Indian title that was a wedge issue. Indeed, the clause that took up a large part of Ritchot’s speech, and with which the members of the Assembly seemed far more concerned, was section 31, especially the reference to “Indian title.” Ritchot had to somehow assure the Métis that their birthright had indeed been recognised and a “reserve” obtained for future generations, all the while assuring the Half-Breeds that they would not lose any of their political and civil rights and liberties as a result. Ritchot began by lowering expectations, stressing the fact that the Act, such as it existed, was the result of a compromise between the List of Rights and several lists drawn up by the ministers. [121] He again insisted on this point at the end of his address when he drew attention to the fact that the Act “differed from our Bill of Rights.” [122] The main difference between the List of Rights and the Manitoba Act was the absence of local control of public lands and the presence of a land grant to compensate extinction of Indian title.
What is curious about Ritchot’s performance is that, when it came to section 31, his version of its genesis varies with what is to be found in his diary. [123] First, Ritchot claimed that it was the ministers who had offered 100,000 acres, “to be given to the Half-Breeds of the country for their children,” a statement that corresponds to both his own and to Northcote’s diary. [124] However, Macdonald and Cartier apparently offered 100,000 acres for each section, to which Ritchot reportedly replied tersely that he “didn’t care for” the Scots Half-Breeds. [125] This is certainly in keeping with the fact that Ritchot was appointed to represent “the French.” [126] His fellow delegate, John Black, apparently remarked that Ritchot, as the representative of the Métis, was duty-bound to negotiate “land matters” only. [127] Furthermore, the ministers made the offer of 100,000 acres on 27 April, only after a “long debate over Métis rights” on 26 April and after Ritchot had insisted they could not surrender the Métis’ “national and personal” rights as descendants of Indians without compensation. [128] In other words, Ritchot initially attempted to negotiate a land grant for the “Métis nation narrowly defined”, something he carefully avoided mentioning in his speech.
Ritchot also told the Assembly further on in his speech that when he and the other delegates made a counter-proposal of three million acres, they were “anxious to secure the land reserve for the benefit of all the children of the country, white and Half-breed alike.” [129] However, according to his diary, Ritchot clearly made a counter-offer of three million acres as compensation for the extinguishment of the Métis and Half-Breed share of Indian title, [130] not “for the benefit of all the children of the country, white and Half-breed alike.” Assertions that he “worked for the people of the country as a whole, without distinction” ring hollow in this regard. [131]
To justify the mention of Indian title in section 31, which restricted the land grant to the children of the Métis and Half-Breeds, Ritchot stated to the Assembly that the ministers would not give in to this demand. He claimed: “We were told by the Ministry that this could not be granted as the only ground on which the land could be given was for the extinguishment of the Indian title. [132] It was reasonable that in extinguishing the Indian title, such of the children as had Indian blood in their veins should receive grants of land; but that was the only ground on which Ministers could ask Parliament for the reserve.” [133] On this point, Ritchot actually contradicts himself later in the very same speech. Suddenly the ministers, far from proposing Indian title as a rationalization of a land grant, “at first fought very hard against us in this matter.” [134] The ministers told him: “You are claiming for the Half-breeds the rights and liberties of civilized people, while at the same time you want for them certain rights as Indians. We cannot recognize these two claims.” [135] This latter version is almost a verbatim extract from his diary. [136]
It is important to note in this regard that, at the material time, the convention among the Métis surrounding their notion of title to the land was generally one of derivative Indian title. [137] The ministers undoubtedly found this idea hard to accept in light of the terms of section 6 of the recently adopted Act for Gradual Enfranchisement, 1869, [138] which amended section 15 the Act Providing for the Management of Indian Lands, 1868, so as to read that “any Indian woman marrying any other than an Indian, shall cease to be an Indian within the meaning of this Act, nor shall the children issue of such marriage be considered as Indians within the meaning of this Act.” The “half-breed” descendants of such marriages were not to receive a land grant carved out of the common lands of the “body of Indians” to which their mothers belonged. [139] In other words, they were to inherit no share in Indian title through their mothers. [140]
In any event, that the contradictions in Ritchot’s speech are due to a desire on his part to reassure the Half-Breeds on the subject of their political rights is apparent when O’Donoghue brought to Ritchot’s attention that “some gentlemen present do not, I find, understand clearly Article 31 of the Manitoba Act, that having reference to the extinguishing of the Indian title by a land grant.” [141] Ritchot immediately seized the opportunity, answering that the “reservation does not in the least conflict with [subsection 91(24) of the Constitution Act, 1867], where it is provided that certain tracts of land are to be reserved for, and owned by, Indians.” [142] To clarify this latter point, O’Donoghue then shared with the Assembly that an “honourable member near me” wondered “whether Half-breeds taking these lands are to be held as minors” under subsection 91(24). [143] In other words, by accepting land under section 31, would their children be treated like “Indians” (i.e., would they become wards of the Crown and consequently lose their political and civil rights and liberties)? Ritchot answered a simple “No.” He further tried to dispel these concerns by specifying that the grant was “to be reserved for minors, with Indian blood—but not for adults, for the latter are allowed every liberty of self-government and all the rights of white people.” [144] Ritchot further explained that, because they already had land as well as “the rights and liberties of white people, adults, even with Indian blood, were allowed no special privileges.” [145]
At this point, Riel intervened, stating that, apart from section 31, “the general Indian title has to be extinguished by being dealt with separately.” That he was not simply referring to treaties with the First Nations here is evident when he specified that “[a]ll those having Indian blood have a title which must be extinguished as well as the general Indian claim.” [146] Here then, perhaps emboldened by the official recognition of Métis derivative Indian title, Riel stated in no uncertain terms, and for perhaps the first time in such clear terms in public, what he had been “skirting around” for the last year: that the Métis and Half-Breeds had a derivative share of Indian title. Confronted with Riel’s bold assertion which could have potentially upset the proverbial apple cart after Ritchot had taken such pains to reassure the Half-Breeds that they would not be treated like Indians, the priest suddenly backtracked, expressing doubt about derivative Indian title as grounds for the land grant. It was in this context that he stated that the “Half-breed title, on the score of Indian blood, is not quite certain. But in order to make a final and satisfactory arrangement, it was deemed best to regard it as certain, and to extinguish the right of the minority as Indians.” [147]
Again, Ritchot’s claims are not only at odds with his journal, but also with what he would state later in the same speech. According to Ritchot’s diary, he initially tried to claim 200 acres for each adult Métis during the negotiations as compensation for the extinction of their derivative Indian title. [148] Moreover, Ritchot added later in his speech that the land grant was to extinguish the children’s “admitted right as Half-breeds” rather than an “uncertain right.” [149] Further on, he took up the traditional Métis refusal to be boxed into the dichotomy of colonial conventions of Indian title and seemed to believe that all Métis, both children and adults, had Indian title. He claimed that he had “argued again, that though the Half-breeds asked to be recognised as civilized people, they had not therefore lost the claims derived from their Indian blood.” [150]
Again, this confirms that the ministers of the Crown, far from having insisted that Indian title was the only way a grant could be justified and pushed through the House, had in fact initially opposed the idea. Ritchot also seemed to suggest that adult Métis did indeed have Indian title when he stated that although “by their energy in hunting and cultivation the Half-breeds have raised themselves to a higher position than the Indians,” their “claims are none the less good.” [151] Logically, the only Métis and Half-Breeds that could have “raised themselves, as hunters and cultivators, from a state of ‘savagery’ to that of ‘half-civilised’ are adults. [152] Finally, far from finding Métis title “not quite certain on the score of Indian blood”, Ritchot confidently asserted that “England is fully prepared to pay all the respect due to the Indian title; and, in doing so, it will not overlook the claims of Half-breeds to their rights derived in this way.” [153] Here, Ritchot took up the traditional Métis position of refusing the colonial paradigm that constructed Indigenous rights as those of “uncivilized” peoples.
What I have tried to demonstrate here is that to understand Ritchot’s statement, one must appreciate it as a performative speech-act and place it in its proper practical and ideological context. While the Métis clearly believed they held derivative Indian title at the very least, they did so while contesting the prevailing convention of Indian title at the time. The Half-Breeds, however, feared that Indian title claims would compromise their political rights and were far more reluctant to challenge standing conventions of Indian title. In any event, since the practical political context necessitated the building of a coalition with the Half-Breeds, the Métis had to downplay their land claims or attempt to ground them in conventions that would be more acceptable to the Half-Breeds. Furthermore, the fragility of the coalition between the Métis and Half-Breeds forced Ritchot to concentrate on his speech-acts as perlocutionary rather than illocutionary acts. On the one hand, his responses were geared to addressing the concerns on the part of the Half-Breeds that the recognition of their Indian title in s. 31 of the Manitoba Act, 1870, would compromise their political rights in such a way as to ensure their support of the Act and the maintenance of the coalition. One the other hand, he had to reassure the Métis that their claims to Indian title had been recognised by the Act. The impossible situation produced illocutionary acts that varied according to whether he had the concerns of the Métis or the Half-Breeds foremost in mind. As such, his statements were not meant to reveal his innermost thoughts on the validity of Métis claims to Indian title, whether for or against, and cannot be taken as such.
To understand the respective positions of both the Half-Breeds and Métis on the question of their share in Indian title, it can be argued that it is “the power of contemporary nation-states within which Indigenous societies (necessarily) remain embedded [that] has constitutively shaped the taxonomies we use to make sense of ourselves and the world around us.” [154] In other words, “the fundamental power of modernity/colonialism is not that as Indigenous people we live in it, but rather, that it lives in us.” [155] This is because Indigenous peoples have internalised “the symbolic violence of race upon which the ‘colonial divide’ between Europeans and Indigenous peoples rests.” [156] Métis scholar Chris Andersen explains the notion of symbolic violence “to mean the power through which elements of social reality come to be seen as real or true, despite their socially constructed and thus arbitrary character,” [157] but that this perception of things being “just the way they are” conceals what is in fact an act of political oppression that seeks to impose and maintain a certain hierarchy. As Andersen has commented, “part of the juridical field’s legitimacy lies in its nearly unparalleled ability to name and to have such naming recognized in the perceptions and practices of actors other than its own.” [158]
While Andersen’s focus is the power of juridical discourse to shape contemporary Métis identity, his analysis is entirely applicable to our Métis and Half-Breed ancestors in the nineteenth century. On the one hand, the Half-Breeds seemed to have simply accepted the colonial dichotomy between “Indians” and “whites” and chose to voice their distinct identity within the available convention of “British subjects”, which had the advantage of providing access to equal civil and political rights while allowing for national distinctions (English, Welsh, Scottish, and Irish). On the other hand, if the Métis rejected the colonial conceptions of Indian status as inferior and grounded their claims within the conventions of the law of nations, they nevertheless perpetuated the legal underpinnings of colonialism by relying on the doctrine of conquest. To paraphrase Andersen, that they did so is an effect both of the internalisation of colonial categories of perception and the conditions of possibility left open to them by Imperial and Canadian law and policy. [159]
1. The boundaries of the District of Assiniboia consisted of a 50-mile circumference around Upper Fort Garry. The original “postage stamp” province of Manitoba was slightly larger than the District of Assiniboia.
2. For the historical distinction between Métis and Half-Breeds, see Darren O’Toole, “From Entity to Identity to Nation: The Ethnogenesis of the Wiisakodewininiwag (Bois-Brûlés) Reconsidered,” in The Métis in Canada, Christopher Adams, ed. Gregg Dahl and Ian Peach, Edmonton: University of Alberta Press, 2013 (forthcoming). While the term “Half-Breed” is considered by some to be derogatory today, contemporaneous Scots Half-Breeds proudly used it as a self-ascription at the material time. In their minds, it undoubtedly simply meant something like “of partially Indian and partially European descent.”
3. Thomas Flanagan, “Métis Aboriginal Rights: Some Historical and Contemporary Problems.” In The Quest for Justice: Aboriginal Peoples and Aboriginal Rights, ed. Menno Boldt et al. Toronto: University of Toronto Press, 1985, p. 230.
4. R. v. Blais, [1996] M.J. No. 391, p. 160.
5. Thomas Flanagan, “The history of Métis Aboriginal Rights: Politics, Principles and Policy,” Canadian Journal of Law and Society 5: 73, 1990.
6. Thomas Flanagan, “The Case Against Métis Aboriginal Rights,” Canadian Policy Analysis 9(3): 316, 1983; Flanagan, “Historical and Contemporary Problems,” p. 231.
7. Darren O’Toole, “Métis Claims to Indian Title in Manitoba, 1860-1870.” Canadian Journal of Native Studies 28(2): 241-270, 2008. The “doctrine of derivative aboriginal rights” essentially “traces Métis rights to the ancient rights of the peoples from whom Métis people derive their Aboriginal ancestry.” Canada, Report of the Royal Commission on Aboriginal Peoples, vol. 4. Ottawa: Department of Supply and Services, 1996, p. 280.
8. Noël-Joseph Ritchot (1825-1905) came to Red River in 1862 and became priest at the Métis parish of St. Norbert. See J. M. Bumsted, The Red River Rebellion, Winnipeg: Watson and Dwyer Publishing, 1996, p. 318.
9. Darren O’Toole, “Thomas Flanagan on the Stand: Revisiting Métis Land Claims and the Lists of Rights in Manitoba,” International Journal of Canadian Studies 41(1): 137-177, 2010.
10. Darren O’Toole, “Blais et Powley : les doctrines des droits aborigènes des Métis sous la loupe,” Ottawa Law Review 41(1): 59-98, 2010.
11. Thomas Flanagan, “Louis Riel and Aboriginal Rights.” In As Long as the Sun Shines and Water Flows: A Reader in Canadian Native Studies, ed. Ian A. L. Getty and Antoine S. Lussier. Vancouver: University of British Columbia Press, 1983, p. 251.
12. Flanagan, “The Case Against,” p. 315.
13. Thomas Flanagan, Métis Lands in Manitoba, Calgary: University of Calgary, 1991, p. 34.
14. Ibid., p. vii.
15. Manitoba Métis Federation v. Canada (2007), [2007] M.J. No. 448 (Manitoba Court of Queen’s Bench), par. 5.
16. Ibid., par. 607.
17. Ibid., par. 608.
18. Ibid., par. 649.
19. I am referring here to the “Cambridge School” method of textual interpretation that requires putting “ideas in context.” These scholars—notably John Pocock, Quentin Skinner and John Dunn—draw inspiration from Ludwig von Wittgenstein’s anti-analytical linguistic approach in his later work (notably Philosophical Investigations) as well as the theories of speech-acts of John Langshaw Austin, John P. Searle and Herbert Paul Grice.
20. Quentin Skinner, “Meaning and Understanding in the History of Ideas.” In Meaning and Context. Quentin Skinner and his Critics, ed. James Tully, Cambridge/Oxford: Polity Press, 1988 [1969], p. 63.
21. Quentin Skinner, The Foundations of Modern Political Thought, vol. 1, Cambridge: Cambridge University Press, 1998 [1978], p. xi.
22. Ibid., p. x.
23. Ibid., p. xi.
24. This is diametrically opposed to Flanagan’s “originalism” whereby he maintains that the word “aboriginal” must necessarily mean “uncivilized” and “cannot be stripped of these connotations.” See Thomas Flanagan “From Indian Title to Aboriginal Rights.” In Law and Justice in a New Land. Essays in Western Canadian Legal History, ed. Louis A. Knafla, Toronto: Carswell, 1986, pp. 82-83. In doing so, Flanagan is reifying “Indian title” so as to make it “be seen as real or true, despite [its] socially constructed and thus arbitrary character.” Chris Andersen, “From nation to population: the racialisation of ‘Métis’ in the Canadian census,” Nations and Nationalism 14, 2 (2008): 29.
25. Canada, “Return: Instructions to the Honourable A. Archibald,” in Sessional Papers, 34 Vic., No. 20, Ottawa: I. B. Taylor, 1871, p. 91.
26. New Nation, “Imperial Responsibility,” 16 March 1870: 1. Chris Andersen, “Moya ‘Tipimsook (“The People Who Aren’t Their Own Bosses”): Racialization and the Misrecognition of Métis in Upper Great Lakes,” Ethnohistory 58(1): 37-67, 2011.
27. George F. G. Stanley, The Birth of Western Canada: A History of the Riel Rebellions, Toronto: University of Toronto Press, 1961 [1936], p. 69; W. L. Morton, “The Red River Parish: Its Place in the Development of Manitoba,” in Manitoba Essays, ed. R. C. Lodge, Toronto: MacMillan Company of Canada Ltd., 1937, p. 98.
28. William Mactavish (1815-1870) came to Canada in 1833 as an apprentice with the HBC. In 1857 he moved to Red River in charge of Upper Fort Garry. He was appointed Governor of Assiniboia in 1858.
29. Canada, “Correspondence and Papers Connected with Recent Occurrences in the North-West Territories,” in Sessional Papers, 33 Vic., Vol. V, No. 12 (Ottawa: I.B. Taylor, 1870), p. 47.
30. Ibid., p. 136.
31. Joseph Alfred Norbert Provencher (1843-1887) was a nephew of Bishop Taché’s predecessor, J. N. Provencher. He had articled in the law office of William McDougall and in 1869 was appointed secretary to McDougall and tried to negotiate with the insurgents before being turned back. Bumsted, Red River Rebellion, p. 317.
32. William McDougall (1822–1905), an advocate of westward expansion, went to London with Sir George Étienne Cartier in 1868 to negotiate the transfer of Rupert’s Land from the HBC to Canada, and as minister of public works he began road construction in the West under John Snow. Bumsted, Red River Rebellion, p. 298.
33. Canada, “Recent Occurrences in the North-West,” p. 28.
34. Thomas Flanagan, “The Political Thought of Louis Riel,” in Riel and the Métis, ed. Antoine S. Lussier, Winnipeg, Manitoba Métis Federation Press, 1979, p. 139.
35. George F. G. Stanley, “Confederation 1870—A Métis Achievement” in The Other Natives: The–Les Métis, vol. 1., ed. Antoine S. Lussier and D. Bruce Sealey, Winnipeg: Manitoba Métis Federation Press and Éditions Bois-Brûlés, 1978, p. 80.
36. A. Begg, The Creation of Manitoba, Toronto: A. H. Hovey, 1871, p. 78.
37. Canada, “Recent Occurrences in the North-West Territories,” p. 136.
38. Gerhard J. Ens, “Prologue to the Red River Resistance: Pre-liminal Politics and the Triumph of Riel,” Journal of the Canadian Historical Association 5: 122, 1994.
39. Flanagan, “Political Thought of Louis Riel,” p. 137.
40. Louis Riel, The Collected Writings of Louis Riel/Les écrits complets de Louis Riel, 5 vols., ed. George F. G. Stanley, Edmonton: University of Alberta Press, 1985.
41. Jennifer Brown, “People of Myth, People of History: A Look at Recent Writing on the Metis.” Acadiensis 17: 152, 1987.
42. Arthur S. Morton, “The New Nation, The Métis,” in The Other Natives: The–Les Métis, vol. 1, 1700-1885, ed. Antoine S. Lussier and D. Bruce Sealey, Winnipeg: Manitoba Métis Federation Press and Éditions Bois-Brûlés, 1978 [1939], p. 35.
43. Flanagan, “Political Thought of Louis Riel,” p. 139.
44. Stanley, “Confederation: a Métis Achievement,” p. 80.
45. Thomas Flanagan, “Political Theory of the Red River Resistance: The Declaration of December 8, 1869,” Canadian Journal of Political Science 9(1): 161, 1978.
46. Flanagan, “Political Thought of Louis Riel,” p. 139.
47. W. L. Morton, ed., Alexander Begg’s Red River Journal and Other Papers Relative to the Red River Resistance of 1869–1870, New York: Greenwood Press & Publishers, 1969 [1956], p. 416. Emphasis added.
48. Begg, Creation of Manitoba, p. 66.
49. Ibid., p. 78.
50. Ibid., p. 94.
51. Art. 10 in the first List, which demanded that “the French and English language to be common in the Legislature and Council, and all public documents and acts of Legislature to be published in both languages,” was adopted by the Convention of Twenty-Four. Louis Riel, The Collected Writings of Louis Riel/Les écrits complets de Louis Riel. Vol. 1., ed. George F. G. Stanley and Raymond Huel, Edmonton: University of Alberta Press, 1985, p. 31. According to Begg, all the articles were “severally discussed by the French and English Representatives without a dissenting voice.” W. L. Morton, Papers Relative to the Red River Resistance, p. 210. Later, when the Convention of Forty arrived at article 13, which demanded that “the English and French languages be common in the Legislature and Courts, and that all public documents and acts of the Legislature be published in both languages” and article 14, which demanded that “the Judge of the Supreme Court speak the French and English languages,” both were adopted without discussion. New Nation, “Convention at Fort Garry,” 4 February 1870: 6.
52. J. M. Bumsted, Trials and Tribulations: The Red River Settlement and the Emergence of Manitoba, 1811–1870, Winnipeg: Great Plains Publications, 2003, p. 130.
53. There is perhaps an oblique reference to them in the first List of Rights in art. 6, which demanded that a “portion of public lands be appropriated to the benefit of schools, […] and parish buildings” and in art. 12, “that all privileges, customs and usages existing at the time of the transfer be respected.” But this did not seem to have caused any concern among the Half-Breeds, which is hardly surprising as it simply pursued “existing privileges” in the District and applied as much to Protestant parishes and schools as to Catholic.
54. Morton, Papers Relative to the Red River Resistance, p. 121. Bishop A.-A. Taché (1823-1894) was born in Rivière-du-Loup, Lower Canada and sent to Red River in 1845, becoming Bishop of St. Boniface in 1853. Taché was in Rome when the Resistance broke out. Returning to Red River in March 1870 with instructions from the Canadian government, he stated that Canada had in general accepted the List of Rights passed by the Convention of Forty. Bumsted, Red River Rebellion, p. 329.
55. Begg, Creation of Manitoba, p. 113. Emphasis added. Not that land was not an issue. The first List of Rights explicitly demanded a Homestead Act and pre-emption rights. Note Begg’s language, with the simultaneous use of the terms “the French” and “the natives” to designate the Métis.
56. Ens, “Pre-liminal Politics,” pp.122-123.
57. A. S. Morton, “The New Nation,” p. 35.
58. W. L. Morton, Papers Relative to the Red River Resistance, p. 136.
59. Flanagan, “Riel and Aboriginal Rights,” p. 251.
60. United Kingdom, Report from the Select Committee on the Hudson’s Bay Company (London, 1857), p. 139.
61. Nor’Wester, “The Land Question,” 14 March 1860: p. 2.
62. W. L. Morton, Manitoba: A History. Toronto: University of Toronto Press, 1967 [1957], p. 91.
63. Ens, “Pre-liminal Politics,” p. 123.
64. Flanagan, “Political Thought of Louis Riel,” pp. 139–140.
65. New Nation, “Convention at Fort Garry,” 4 February 1870: 6. Emphasis added.
66. James Tully, “The Pen is a Mighty Sword: Quentin Skinner’s Analysis of Politics.” In Meaning and Context: Quentin Skinner and his Critics, ed. James Tully, Cambridge/Oxford: Polity Press, 1988, p. 9.
67. Quentin Skinner, “Motives, Intentions and the Interpretation of Texts.” In Meaning and Context: Quentin Skinner and his Critics, ed. James Tully, Cambridge/Oxford: Polity Press, 1988 [1976], p. 74.
68. Ibid.
69. New Nation, “Convention at Fort Garry,” 4 February 1870: 6.
70. Ibid. Emphasis added. According to Bumsted, a series of articles published in the Nor’Wester in 1861 that criticised and rejected the doctrine of derivative Indian title were written by Ross. See Bumsted, Trials and Tribulations, p. 141.
71. Quentin Skinner, “A Reply to my Critics.” In Meaning and Context: Quentin Skinner and his Critics, ed. James Tully, Cambridge/Oxford: Polity Press, 1988, p. 266.
72. B. M. White, “The Power of Whiteness, or the Life and Times of Joseph Rolette Jr.” In Making Minnesota Territory, 1849-1858, ed. A. R. Kaplan and M. Ziebarth, St. Paul: Minnesota Historical Society Press, 1999, p. 38.
73. See O’Toole, “Métis Claims to Indian Title,” pp. 249-251.
74. New Nation, “Convention at Fort Garry,” 4 February 1870: 6.
75. Skinner, “Motives, Intentions and Interpretations,” p. 74.
76. Thomas Bunn (1830-1875) was a Half-Breed born in Red River who served as clerk of the Council of Assiniboia and the General Quarterly Court from 1865-1870. In January 1868, he was appointed to the Council of Assiniboia. He was elected delegate for St. Clement’s to the Convention of Twenty-Four, the Convention of Forty and councillor to the Provisional Government, which he served as Secretary of State. Bumsted, Red River Rebellion, pp. 263-264.
77. Canada, “Report of the Select Committee of the House of Commons on the Causes and Difficulties in the North-West Territories in 1869-1870,” House of Commons Papers, 37 Vic., vol. VIII, App. 6 (Ottawa: I.B. Taylor, 1874), p. 115.
78. Begg, Creation of Manitoba, p. 87.
79. Sylvia Van Kirk, Many Tender Ties: Women in Fur-Trade Society, 1670–1870, Winnipeg: Watson & Dwyer Publishing, 1980, pp. 150–151.
80. John Foster “The Métis: the People and the Term,” in Patrick C. Douaud, ed. The Western Métis: Profile of a People, Regina: Canadian Plains Research Center, 2007 [1978], pp. 28–29.
81. Frits Pannekoek, A Snug Little Flock: The Social Origins of the Riel Resistance of 1869–1870, Winnipeg: Watson & Dwyer Publishing, 1991, p. 13. This obviously does not preclude the possibility that they subsequently emphasised their mixed-blood heritage after 1870, notably in reaction to the bigotry of the Upper Canadians that arrived in the new Province.
82. United Kingdom, Report on the HBC, pp. 437–439; Pannekoek, A Snug Little Flock, pp. 148–150.
83. Rev. Griffith Owen Corbett (c1823–1909) was sent to Rupert’s Land in 1852 and ordained in 1853. He returned to England in 1855 to study medicine and came back to Rupert’s Land in 1857. He established the first printing press in 1858 so he could publish arguments in favour of a Crown colony, gaining the support of English-speaking mixed-bloods. Bumsted, Red River Rebellion, p. 269.
84. Pannekoek, Snug Little Flock, p. 176.
85. J. M. Bumsted, Thomas Scott’s Body and Other Essays on Early Manitoba History, Winnipeg: University of Manitoba Press, 2000, p. 112.
86. J. M. Bumsted, Dictionary of Manitoba Biography, Winnipeg: University of Manitoba Press, 1999.
87. Pannekoek, Snug Little Flock, p. 155.
88. United Kingdom, Report on the HBC, p. 145.
89. Ibid., p. 139.
90. Pannekoek, Snug Little Flock, p. 144.
91. Ibid., p. 183. Hallett committed suicide on 27 December 1873 but it was apparently due to health problems that resulted from his imprisonment during the reign of the Provisional Government. George Eliott and Edwin Brokovski, Preliminary Investigation and Trial of Ambroise Lépine, Montréal: Burland-Desbarats, 1874, p. 49.
92. Francis de Vitoria, Political Writings, Cambridge: Cambridge University Press, 1991, pp. 290-291.
93. A. S. Morton, “The New Nation,” p. 35.
94. Morton, Papers Relative to the Red River Resistance, p. 174.
95. Ibid., p. 191.
96. Begg, Creation of Manitoba, p. 157.
97. Stanley, “Confederation: a Métis Achievement,” p. 81.
98. John Stoughton Dennis (1820–1885) was born in Kingston, Upper Canada, and educated at Victoria College, Cobourg where he qualified as a land surveyor in 1842. One of his classmates was William McDougall. In 1869, he was sent to Red River to survey lots in advance of the transfer of Rupert’s Land to Canada. The Métis obstructed one of his survey teams on 11 October 1869. He attempted to raise a volunteer force to bring down the Provisional Government, but fled the Settlement on 11 December 1869. Bumsted, Red River Rebellion, p. 274.
99. Canada, “Recent Occurrences in the North-West,” p. 111.
100. Act for the Better Protection of the Lands and Property of the Indians in Lower Canada, 1850, (S.C.), 13 & 14 Vic., cap. 42.
101. Emphasis added. Note that under the guise of protecting Indian lands, the Legislative Assembly of United Canada in effect deprived Indigenous peoples of common law title to their lands and thereby of their corresponding civil rights as property holders.
102. Shortly after Confederation, the Federal Parliament passed An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, 1868, 31 Vic. cap. 42. This Act essentially gave force of law to the Act for the Better Protection of the Lands and Property of the Indians in Lower Canada, 1850, within the provinces outside Lower Canada.
103. United Kingdom, Report on the HBC, p. 139.
104. Riel, Collected Writings, p. 30. It may be because it was not until the early hours of 24 November that Riel convinced the National Committee to adopt it. Ibid., pp. 29–30. When he succeeded in doing so, Begg seemed to believe that this was the policy the Métis had been concealing when he commented the “French members declar[ed] their intention to form a Provisional Government for the purpose of treating with Canada.” Begg, Creation of Manitoba, p. 97. In any event, if the Half-Breeds initially refused, they eventually accepted a provisional government with the Métis the following February.
105. After being found guilty for the murder of Thomas Scott, Ambroise-Dydime Lépine was pardoned but stripped of his political rights.
106. To be sure, it was not simply a question of legal status. The Half-Breeds had already suffered from the negative symbolic capital attached to their Indigenous ancestry when their social mobility was reduced within the HBC trade system in the 1830s and 1840s. Understandably, they were not overjoyed about the idea of being subjected to the social stigma that went along with being identified as “Indian” in settler society.
107. Riel, Collected Writings, p. 119, note 12.
108. The New Nation, “Manitoba. The Nor’West Bill. Representation, Legislation and Constitution of the New Province,” 27 May 1870: 1, 2.
109. Canada, 1874: 80-81.
110. New Nation, “Manitoba. The Nor’West Bill. Representation, Legislation and Constitution of the New Province,” 27 May 1870: 2.
111. Begg, Creation of Manitoba, p. 234.
112. Morton, Birth of a Province, p. 140.
113. Probably issue in French, meaning “outcome.”
114. New Nation, “Legislative Assembly of Assiniboia. Third Session,” 1 July 1870: 2.
115. Ibid.
116. Flanagan, Métis Land in Manitoba, p. 46.
117. New Nation, “Legislative Assembly of Assiniboia. Third Session,” 1 July 1870: 2
118. Ibid., p. 3. Emphasis added.
119. Ibid.
120. Canada, “Causes and Difficulties in the North-West,” p. 81.
121. New Nation, “Legislative Assembly of Assiniboia. Third Session,” 1 July 1870: 2.
122. Ibid., p. 3.
123. Compare ibid., pp. 2-3 and William Lewis Morton, ed. Manitoba: The Birth of a Province, Winnipeg: Manitoba Record Society Publications, 1965, pp. 142-143.
124. According to Ritchot, the “ministers […] offered one hundred thousand acres to be bestowed on the children of the métis.” Morton, Birth of a Province, p. 142. Northcote wrote that “Sir John A. had proposed 100,000 acres, with which Ritchot was not satisfied.” Ibid., pp. 90-91.
125. Morton, Birth of a Province, p. 91. Ritchot mentions that the “ministers offered 150,000 acres, 200,000 acres to be divided among heads of families to be held for their children”, but makes no mention of 100,000 for each section of the population, Ibid., p. 142.
126. That is, the “French Half-Breeds.” See Begg, Creation of Manitoba, p. 274 and Morton, Birth of a Province, p. 153.
127. Morton, Birth of a Province, p. 153.
128. Ibid., p. 141.
129. New Nation, “Legislative Assembly of Assiniboia. Third Session,” 1 July 1870: 3.
130. Morton, Birth of a Province, p. 143.
131. That being said, according to Ritchot, his fellow delegate’s sister, Miss Black, told Ritchot that she would “long remember the generous effort that I have made for the people of Red River in general without distinction of origin or belief.” Ibid. p. 153. However, in the preceding paragraph, Ritchot relates that the Convention charged him with the business of the French-Canadian Métis.
132. Ritchot related a “further argument against a grant of land to all the children in the colony”, being that it would “give rise to trouble” in the other provinces. New Nation, “Legislative Assembly of Assiniboia. Third Session,” 1 July 1870: 3. Curiously, Parliament would effectively do precisely that in 1874. Flanagan remarks that Ritchot’s diary “contains no evidence that Macdonald and Cartier […] accepted Ritchot’s theory of a Métis aboriginal title inherited from Indian ancestors.” Flanagan, “The Case Against,” p. 318. Yet, Ritchot’s diary makes clear that they accepted to negotiate a land base on this basis. Morton, Birth of a Province, p. 142. In any case, Flanagan himself quotes Macdonald on the same page in the next column as asserting in Parliament on 2 May 1870 that the Métis “had a strong claim to the lands, in consequence of their extraction.” Whatever their misgivings, Macdonald and Cartier ultimately justified the section 31 land grant in terms of the “Indian” title of the Métis and Half-Breeds.
133. New Nation, “Legislative Assembly of Assiniboia. Third Session,” 1 July 1870: 2. Cartier did use this argument on 9 May 1870. Canada, House of Commons Debates (3rd Session, 1st Parliament, 1870), p. 1447. However, according to Ritchot’s diary, the ministers did not so much insist on Indian title to get the Bill through the House as on federal, instead of provincial, control of s. 31 lands. Morton, Birth of a Province, pp. 147–148. In fact, it was the reference to Indian title that made s. 31 difficult to get through the House (Canada, House of Commons Debates, pp. 1306, 1436, 1447, 1449, 1450-1451, 1501), namely because it was perceived as implying a “restrictive policy” (Ibid. pp. 1307, 1329, 1387, 1420, 1426, 1438, 1449, 1459-1460. While a land grant per se was not the issue, as both McDougall (ibid., pp. 1448, 1454) and Mackenzie (ibid. pp. 1449, 1459) tried to replace s. 31 with a homestead law or grants of 200 acres to all settlers. Again, this contradicts Ritchot’s claim that reference to Indian title was necessary to get a land grant through the House.
134. New Nation, “Legislative Assembly of Assiniboia. Third Session,” 1 July 1870: 2.
135. Ibid.
136. “The ministers make the observation that the settlers of the North West claiming and having obtained a form of government fitting for civilized men ought not to claim also the privileges granted to the Indians.” Morton, Birth of a Province, p. 141.
137. See note 7.
138. An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, 1869, 32 Vic. cap. 42.
139. Pierre Delorme’s curious demand that, “Indian status be extended to their wives, thus allowing the Métis to benefit from any Indian land settlement.” Pannekoek, Snug Little Flock, p. 192. This can be seen as a clever, albeit sexist, attempt to manipulate the convention of Indian title in such a way as to overcome the opposition of the Half-Breeds to Indian title claims. As all married women, both Indigenous and settler, were legally minors at the time, the recognition of the derivative Indian title of Métis women would not entail a loss of political and civil rights and liberties as it would for Métis men. At the same time, as marriage resulted in the transfer of any property the wife enjoyed being passed to the husband, the wife’s share of Indian title would end up in the hands of Métis men. In other words, Delorme’s manoeuvre would allow Métis men to enjoy all the benefits of an Indian title claim without having to give up any of their civil or political rights.
140. However, the legislation also essentially confirmed most of the clauses of An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians, 1857, 20 Vic., cap. 26 (Province of Canada). Insofar as Half-Breeds qualified as “enfranchised Indians” under the terms of this Act, it may have been seen as reassuring. Its purpose was “the gradual removal of all legal distinctions between them and Her Majesty’s other Canadian Subjects, and to facilitate the acquisition of property and of the rights accompanying it.” If the application of the Act to them would have resulted in a mere life estate in the lands they occupied, it was an improvement on the HBC leases, and such lands would pass on to their descendants in fee simple.
141. New Nation, “Legislative Assembly of Assiniboia. Third Session,” 1 July 1870: 2.
142. Ibid.
143. Ibid. Notice that on both occasions, O’Donoghue raises the concerns of other members and not his own.
144. Ibid.
145. Ibid.
146. Ibid., p. 2. Riel’s position was ultimately vindicated when Parliament adopted legislation to extinguish the derivative Indian title of Métis adults in An Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1874, 37 Vic., cap. 20.
147. Ibid., p. 2.
148. Morton, Birth of a Province, p. 142.
149. New Nation, “Legislative Assembly of Assiniboia. Third Session,” 1 July 1870: 2.
150. Ibid. In his diary, Ritchot wrote: “[…] because these settlers wish to be treated like other subjects of Her Majesty does it follow that those among them that have a right as descendants of Indians should be obliged to lose those rights. I don’t believe it; thus in asking control of the lands of the province, they have no intention of causing the loss of the rights that those of the North West have as the descendants of Indians.” Morton, Birth of a Province, p. 141.
151. Ibid., p. 2.
152. The argument also seems like a reply to Ross’ earlier objection that due to “the progress we have made, and the position we occupy, we must claim the rights and privileges which civilized men in other countries claim.” New Nation, “Convention at Fort Garry,” 4 February 1870: 6.
153. Ibid., p. 2.
154. Andersen, “From Nation to Population,” p. 35.
155. Ibid., p. 25.
156. Ibid., pp. 25-26.
157. Ibid., p. 29.
158. Andersen, “Moya ‘Tipimsook,” p. 49.
159. Andersen, “From Nation to Population,” p. 36.
Page revised: 14 January 2017
