by Douglas Kemp
at the Metis Historical Conference, Brandon University, 5-6 May 1977
A very objective version of the activity of the federal government in the years before the establishment of the Department of the Interior in 1873 and the problems they had in making the allotments of this land. They made a great many mistakes, mistakes that were involved with the whole process of the opening of western Canada. The Federal Government was faced with a major problem when Manitoba was admitted, and prior to that, the take-over of Rupertsland and the half-breed land grant was simply one of the items within the whole program of land survey, settlement and development of all kinds.
This paper, I have presented it before, has met with a considerable amount of criticism at times. I have a newspaper clipping I happened to come across “Did the half-breeds get a fair deal?” I am taken to task in the newspaper for whitewashing the activities of the federal government. But as you will notice as I go on, I think it is an objective approach; there is nothing subjective to it. I refer here not to Metis at all. I don’t use the term Metis in this chapter. It was all “half-breed” because that was the official title of that particular section of the Act, Section 31 of the Manitoba Act. I got a lot of threatening phone calls. How dare I speak of half-breeds and so on. I kept the doors locked for a week or so; kept looking around to see who was following me. But I mean no disrespect if the term half-breed has an offensive ring of any kind. I am simply using the term because that is the way all the documents of the day read.
The purpose served by the grant of 1,400,000 acres of land to the families of half-breed residents of Manitoba, according to Section 31 of the Manitoba Act was the partial extinction of the Indian title to lands in the province. The grant was therefore directly in accord with and pursuant to the terms of the deed of surrender of Rupertsland by the Hudson’s Bay Company to the crown.
Prime Minister McDonald, when explaining the legislation to the House of Commons, said that the government recognized the half-breeds’ strong claim and consequence of their extraction as well from as their being settlers. The government did not depart from this interpretation of its obligation to the half-breeds. But it was not long after the passage of the Manitoba Act that certain elements of the population, promoters of their own, attacked or defended the grant by imposing their own interpretations on Section 31 and imputing other motives for its inclusion in the act. It is not proposed to examine this aspect of the grant problem but it maybe well to indicate the nature of the arguments which revolved around it in 1873, one of the times when the administration of the grant was faltering rather seriously. The arguments of two Manitoba newspapers in support of their views on the grant question illustrate the perversion by partisan opinion of the principle upon which the legislation was based. The Manitoba Free Press expressed in particularly strong terms the opinion that the grant was made to serve political ends: to soften the debate for the influence and support of the Roman Catholic Church. The Metis, in rebuttal, claimed the grant represented compensation for the loss of control of the public lands as demanded in the Bill of Rights presented by the delegates of the northwest.
There is nothing in the story of the administration of the grant which would indicate that the government regarded the grant as anything but an assumed obligation which was to be discharged as quickly as the demands of justice and fairness to all would permit. The malaise which marked the early course of settlement of the grant were not the result of devious political maneuvers or evasions of the terms of an ill-advised compromise but they were caused by the adoption of an administrative system which had its basis in error and confusion. The grant, it has been noted, was made to satisfy a dual claim by rights of racial extraction and of squatting. The problem which the grant posed for the dominion government was, however, of a nature different from that usually associated with squatters’ claims. In this instance, the extent of compensation was the known factors; the extent and mode of distribution, the unknown factor. It was in the initial resolution of these unknowns that the first mistakes were made. In August 1870 Adams Archibald, the Lieutenant Government of Manitoba, in his added capacity as administrator of crown lands in Manitoba, was instructed to inquire into the land question in Manitoba and to be prepared to suggest a means of regulating both the selection of sufficient land to satisfy the half breed grant and the division of this land among the children of the half-breed heads of family. In addition, the instructions issued for his guidance from the Province of Manitoba required the Lieutenant Governor to have taken a census of the half-breed heads of families and of their children respectively. The terms of these instructions, one will note, were in strict accord with the provisions of Section 31 of the Manitoba Act.
Because population statistics were requisite to the establishment of the machinery of governance, the most pressing need of the community, the enumeration first occupied the Lieutenant Governor’s attention. A plan was devised which was to serve the dual purpose of providing information relating to the half-breeds and population figures to be used in laying off the districts for representation. Archibald spoke with satisfaction of his plan but the attempt to combine objectives had a most unsatisfactory result. The purposes of the half-breed grant were poorly served.
The forms completed by enumerators contained the information required for a land grant system. But in the abstracts prepared from these forms, the information was obscured because of the system of reduction employed. The only significant figure available for proposes of the half-breed land grant was that of 10,000 for the total numbers of half-breed, French and English. Precise information regarding the numbers of half-breed heads of families and of their children respectively, was omitted from this reported census figure, and this omission and the acceptance later of the estimated total as the basis for the half-breed land grant system were causes of much of the confusion and delay which attended this system in practice. In April 1871, an order-in-council introduced regulations concerning the public lands of Manitoba, the mode of distribution of the half-breed grant was embodied in these regulations. Two of its features should be noted here. First, every half-breed resident in Manitoba on 15 July 1870, and every child of every such resident, were declared to be participants in the 1,400,000 acres. Second, it was directed that an accurate census, if not already obtained, should be taken to determine the number of persons eligible to participate in the grant. The two features, whether examined separately or together, give rise to questions which can be answered only by conjecture, if at all.
The first feature contravened the terms of Section 31 of the Manitoba Act by declaring, in effect, that all half-breeds resident in Manitoba at the time of the transfer were eligible to participate in the grant. Was this new designation of eligible participants framed in error or was the contravention intentional? If an error was made, it is possible to understand why there should be doubt as to the existence of a proper census on which to base the plan of distribution. If the change in designation was intentional, the 1870 figures already in hand were adequate for the purposes of the grant.
Other questions obviously are latent in the relationship of these features, but they will not be raised here. Partial answers to those already raised will be indicated. At this point it is sufficient for us to say that the approach to the settlement of the half-breed claims was much disordered. The problem of whether or not a census was to be taken was not resolved in 1871. In fact, no move was made in that year to put the half-breed grant system into effect because the division and allotment of grant land depended upon the existence of completed township surveys. The surveys, halted by the troubles of 1869-1870 began again in 1871 under a revised system; but the prairie fires and the Fenian raid delayed the progress. The half-breeds might have been tolerant of avoidable delays had there not arisen of these delays, circumstances which they did not choose to tolerate.
Settlers were arriving in Manitoba and the Dominion Government found it necessary to allow them to take up homestead entries in advance of the survey. A large number of the settlers took up lands which the half-breeds thought were or would be theirs. In fact, many of the lands so taken up were enclosed later in the half-breed reserve. Thus, there arose a source of grievance for the half-breeds who resented the intrusion upon lands which they regarded as their own and for the settlers who found themselves situated among an alien and often hostile people. Complications were arising before the grant system got underway. The Dominion Government returned to the question of the census of the half-breed population of Manitoba in 1872. An order-in-council passed in January authorized the dominion lands agent in Manitoba to have taken a census of all those entitled to land under section 31 of the Manitoba Act. But again, a conflict in terms marked the grant plans. A qualifying clause designated the eligible participants as the half-breed residents in the province at the time of the transfer. The questions raised by the order-in-council of April of1871 therefore remained unanswered.
The census was not taken, however. The agent reported the extreme necessity of making an early selection of the half-breed lands in order that a clash of interests might be avoided when settlers began arriving in the spring and the government, mindful of the problem created in the previous year, ordered that the selection should begin without further delay. The basis of selection was laid down in an order-in- council of April 15, 1872. The Lieutenant Governor was to select a sufficient number of townships to make up the 1,400,000 acres, taking into account the prior claims on land for the Hudson’s Bay Company and for school purposes in each township. The 1870 census figures of 10,000 for the half-breeds entitled to share in the grant was adopted. With its adoption, the obscurity of the previous order was removed. Whether this course was taken for reasons of expediency or because it coincided with the reading or misreading of the terms of the Manitoba Act is not possible to say. That the course was ill-advised soon was to become apparent.
The order also precluded an extension of the problem associated with the homestead entries on half-breed claims. The townships selected were for the half-breeds were to be reserved for the purposes of the grant exclusively and no further homestead entries were to be allowed. Settlers who found that their land were situated in the half-breed reserves were to be confirmed in their holdings but they might locate at fresh land elsewhere if they desired, provided that they apply for such re-entry within two years. Thus, the source of future grievance was removed and a means of redress for existing grievances was provided.
The government expected that the Lieutenant Governor would implement the instructions at once, but he felt that he needed more accurate information regarding the land situation as a whole in Manitoba before he could proceed with the selection. During the early summer, settlers were arriving and the question of where they might and might not take up lands was unanswered. The half-breeds, anxious to have their lands reserved for them, were fearful that the pattern of the previous summer would be repeated. In consequence the mischief growing out of the delay became increasingly serious and Archibald found it necessary to set aside certain townships on a temporary basis in areas where trouble was not likely to occur.
In July the government pressed Archibald to get on with the job and by the end of August, some 55 townships had been reserved. The plan of distribution, as he called it, had its basis in the calculations of 150 claims of 140 acres per township; allowance having been made for the four sections reserved for the Hudson’s Bay Company and for school. On this basis, 68 intact townships would be required. It was found that in many of the townships prior claims had accrued through purchase or settlement, so the distribution was continued as a temporary arrangement. In making his selections, the Lieutenant Governor did not take the initiative but waited for the parishes to make applications and to express their preferences with regard to particular areas of land. The 55 townships selected represented the satisfaction of the requirements of 19 of the parishes which had made such applications; five parishes did not reply. The division of the reserves into individual allotments was the next problem to be solved and the surveys completed in 1872 marked a sufficient advance in the subdivision of the province to permit plans for such a subdivision being made.
In November, Alexander Morris, for the moment administrator of the province, wrote to Ottawa recommending, in view of the troubled situation arising out of the delay, that he be authorized to announce that such plans had matured and that the division would be made early in 1873. In December, Morris, now Lieutenant Governor, was able to assure a half-breed delegation that the distribution was soon to be made and that an official was on his way from Ottawa to assist in carrying it out. The official, J. S. Dennis, surveyor general arrived on 17 December, with authority to proceed with the drawing of allotments and by the end of the month he was busy making the rounds of the five parishes in which townships had not been selected.
With the release of the news that the drawing would soon begin, a wave of speculative buying of half-breed claims spread quickly over the province. The vendors were half-breed heads of families and the view was expressed in the legislative assembly and in the newspapers that sales of claims by such persons would not be recognized because they were repugnant to the terms of section of 31 of the Manitoba Act. In March 1873 the Manitoba legislature passed an act declaring that no agreement either for or without a money consideration with regard to the transfer of title to half-breed land made before the issue of patents for the same was valid. The purchase price, if paid prior to the passing of the act, was recoverable but any moneys paid subsequent to its enactment and prior to the issue of patents were not recoverable. The protection this legislation provided to the half-breed against speculation was not asked for, nor was it graciously accepted. As a matter of fact, a delegation of half-breeds met with prominent members of the legislature and the Act was repealed. The protection that might have been afforded against speculation was gone.
In the same month Mr. Cunningham, federal member for Marquette, raised the issue of eligible participants in the House of Commons and at first the government affirmed its stand that all half-breeds were entitled to the grant. The question must have led to some statute reading however because 10 days later when Cunningham presented resolutions defining half-breed children as the only eligible claimants to the grant, the government accepted. On April 3rd an order-in-council amended the existing regulations, by declaring that the children of half-breed heads of families alone were entitled to share in the 1,4000,000 acres. On 3 May, the new interpretation of Section 31 of the Manitoba Act received statutory confirmation. Allotments of 140 acres had been made during March but distribution was halted because of the new regulations. The surveyor general, in his last report to the secretary of state, in June of that year, was able to say that plans for a new distribution on the basis of 190 acres per allotment were underway.
The Department of the Interior began its duties on 1 July 1873 and to it fell the complicated problem of the half-breed grant. Administration of the grant regulations had followed a path, torturous enough up to this time, but the Department soon was apprised of new factors which demanded consideration, and which were to put new crooks in the path. Claims under Section 32 of the Manitoba Act still were in the process of being defined. And of these, the rights of cutting hay in the common particularly threatened to overlay claims under the half-breed grant. The right of original settlers, other than half-breeds, to be treated in a manner similar to that accorded the half-breeds was recognized and required settlement.
In addition, a peculiar group of claims, known as staked claims, had intruded upon the scene. The latter were not to become a serious problem for another year or more but their existence was a source of concern. The problem of the hay privilege had taken on a serious aspect shortly after the original selection of the half-breed reservations in 1872. For those of you not familiar with the hay privilege, most of the river lots assigned were two miles in depth. And most of the people, not all, but most, had what was known as a hay privilege in an additional two miles backing on their property. So they could actually work, or make use of, four miles back from the river frontage.
The reservation, in many cases, abutted on the rear line of the settlement belt and protests arose on every side from the belt holders who feared that their rights in the outer two miles were being denied them. Early in 1873 a commission was appointed to investigate these rights and it reported in March that certain rights in the other two miles did exist and that the belt-holders would have to be compensated in some fashion for the loss of them. Compensations in unclaimed crown lands was first recommended, but in September 1873, the government recognized the belt-holders right for compensation in the outer two miles and ordered that this area be withdrawn from the half-breed reserve. The reserves to be extended backward in proportion to the area so withdrawn, a knotty and contentious issue thus was disposed of.
The plans for the re-allotment of the half-breed reserve were completed in the summer of 1873, by which the individual grants were increased to 190 acres; work on the plans apparently progressed very quietly because a member of the press felt the need to bemoan the dirth of news relating to any aspect half-breed grant. That confounded Pacific scandal, he said, seems to have absorbed all of the energies of all of the ministers in all of the departments to the utter exclusion of public business.
The public business of distributing the half-breed grant began in November but was not completed. The unsavory episode of the newsman’s wail resulted in a change of government in Ottawa, and the new Minister of the Interior David Laird ordered the procedure to stop. Henceforth haste was to be made slowly. And the indeterminate features of the grant were to be exposed before an advance was ordered.
Lieutenant Governor Morris, meanwhile, was engaged in correspondence with the Department of the Interior with regard to the establishment of a system whereby claims under the half-breed grant might be investigated. His recommendations embodied features which had been used to advantage in Upper Canada when the problem of the United Empire Loyalists claims to land was before the government of that province. The system had been to record a particular holding in the land office register and by this entry, the land was vested in the holder, subject to such proof of right as was later established. All that would be to required to initiate a like system in Manitoba would be to publish a list for each of the several parishes describing the allotments made and designating as allottees those whose names appeared on the parish census role. Notice might then be given that all claimants to half-breed land were to apply for their patents and the proof of right would be received at the land office. Such a system, he thought, would give at once a marketable value to the holdings thus to protect the half-breed who at the time were receiving paltry sums for their rights to indeterminate lots.
The surveyor general opposed this system on the ground that the examination of claims would place too heavy a burden on the staff of the land office. He saw no need to include in any parish list the description of the lands allotted to each individual and he recommended that a commission be appointed for the special purpose of examining half-breed claims. A solution to the problem by any means would have been welcome in Manitoba but the Department set the issue aside for future reference and turned to the question of what should be done for the half-breed heads of families.
To follow the Department into this problem it will be necessary to digress to briefly from the main course of the half-breed grant administration. In 1873 the former government, in answer to representations from the Legislature of Manitoba had provided by statute a grant of 49,000 acres of land to be divided among the original Selkirk settlers, or the children, not being half-breeds of the same, then residents in Manitoba. These people, it was felt, were entitled to the same consideration as that being extended to the half-breeds of the province and the additional allotments were to be of the same size as that of the half-breed, that is 140 acres. The legislation, however, was prevented by subsequent events from establishing the principle of equal treatment as between Selkirk settler and half-breed. The half-breed heads of families had been divested of their right to share in the half-breed land grant before the legislation was passed and furthermore the reduction in the number of claimants to the half-breed grants had increased automatically the area of the individual allotments above the 140 acres. Nor was that all. The grant of 49000 acres was to provide 140 acres each for an estimated 350 Selkirk settlers, whereas an accurate census showed that there were some 530 claims. This meant that the allotments would measure just over 92 acres each. Notwithstanding the trouble it caused, the comedy of errors had reached its climax in this situation. A bill introduced by David Laird on 1 May 1874 met the situation adequately. When it was passed in the same month it embodied a modified but nonetheless satisfactory principle of equal treatment.
The legislation provided for a grant of 160 acres of land or scrip for $160 to half-breed heads of families, fathers, mothers or both, as the case might be. By the act also, a grant of scrip of $160 was made to all original white settlers, whether sponsored by Lord Selkirk or otherwise who came to the Red River settlement between the years 1813 and 1835 both inclusive, or to the children of such settlers, not being half-breed. The change in the provisions relating to the original settlers was introduced to satisfy the wishes expressed by such settlers to a joint address of the Manitoba Legislature.
In the early autumn of 1874 David Laird established a desirable and much-appreciated precedent of ministerial visits to the northwest. Much of the criticism of the administration of western affairs was well founded in the claim that Ottawa’s officials acted upon a knowledge of the west derived only from secondary sources. The earnest attention which the minister gave to affairs under the jurisdiction of his department during his visit received grateful response from the inhabitants. The visit afforded the opportunity for all to air their views and grievances. “Since his arrival in the province he has with studious impartiality given audience to all sorts and conditions of men”, the Norwester reported.
Apart of the salutatory effect of the personal interview it is difficult to assess the benefits derived from the Minister’s tour of the west. It did not produce a noticeable quickening of pace in the administration of land matters under the Manitoba Act, but under Laird and his successor David Mills who followed the precedent, the Department of the Interior avoided repeating the gross errors in judgment which had characterized the early administration of these affairs.
To return to the administration of the half-breed grant, the problem of how best to examine the half-breed claims to land, temporarily shelved in 1874 was brought down again for consideration in 1875. Whether the experience gained in seeing the Manitoba land office in operation enabled the minister to come to a decision in the matter is a moot question. But his memorandum to the Privy Council in April followed almost verbatim that of the surveyor general written during the debate with Lieutenant Governor Morris. The minister’s recommended the appointment of a commission with the special purpose of examining the half-breed claims and outlined the terms of reference within which the commission should act. His recommendations were approved by an order-in-council of 26 April 1875. On May 5th a further order authorized J. M. McCarr of Kingston and Matthew Ryan of Montreal to act as commissioners. The latter order instructed the commissioners to examine also the claims of half-breed heads of families to land or scrip and of settlers to scrip under the Act of 1874.
Manitoba welcomed the commission and wished it Godspeed while mildly regretting that the commissioners should have been selected from outside the province. The commissioners worked quickly and carefully and in four months time had completed their task. Some 9,300 claims were examined in this short period to the complete satisfaction of the half-breeds and other claimants. The results of this examination provided for the first time a proper basis for a final settlement of the half-breed grant under the Manitoba Act.
The staked claims problem also came up for review in 1875. The government first heard of these claims early in 1873 when Surveyor General J. S. Dennis wrote to Ottawa that he had been waited on by a large delegation of half-breeds who claimed that they had the right to certain lands which they had marked off on the Rat; LaSalle and Seine Rivers. The generally well-sheltered banks of those rivers afforded good wintering grounds for stock owned by the half-breeds and used for this purpose since about 1862. When these people learned of the government’s intention to allow pre-exemption rights to land peacefully held at the time of the transfer to Canada, they lost no time is staking claims to it. In most cases, there was no attempt to improve the land: a few posts to mark the limits along the river banks, piled up poles to represent the walls of the house; trees blazes or a small plowed patch were among the usual bases right of claims by peaceable possession. The question of staked claims was referred to the Minister of Justice for a decision as to their legality under the Manitoba Act and in July 1874, he informed the Minister of the Interior that such claims could not be recognized.
The half-breed would not be put off, however, by legal arguments which they could not or did not choose to understand and so the Minister of the Interior was forced to appeal again to the department of Justice. In March 1875, he was advised not to have any legislation with regard to staked claims, but to examine and deal with each case upon its own merit. The advice was accepted and although the recognition of a new class of claims complicated the problem of the half-breed grant, it also exposed the last of the undetermined factors which had previously delayed a settlement.
From 1876 the history of the settlement of the half-breed grant was one of progress. Remedial legislation had removed the inconsistencies of previous enactments and investigations had revealed the obstacles yet to be overcome. The Department of the Interior had committed itself to the creation of an extension of this land-lot already created by the half-breed reserve under the provision of the act which granted land or scrip to the half-breed heads of families. Action in this direction was in no way desirable and when the investigation of the half-breed grant commission disclosed that an issue of scrip would be satisfactory to the claimants, an order-in-council was passed in March 1876 which provided for the settlement of all such claims by this means. As a protection to the recipients of scrip it was provided also that no assignment of a right to scrip would be recognized by the department.
In June 1876, the department moved to do justice to those half-breeds who had left the province to reside in the Northwest Territories previous to the sittings of the half-breed grant commission. Matthew Ryan, lately appointed as magistrate for the territories was authorized to continue to act as a commissioner, and take the evidence of such claimants that might come before him; such commission to continue for two years. The stage was now set for the final act. By an order-in-council of 7 September 1876 the department issued regulations for the distribution of the half-breed land grant. The half-breed grant commission had reported 5088 persons as entitled. But the rights of an additional 226 persons had been verified subsequent to the commission’s sitting. To provide for future claims which might be verified, the total number of claimants was placed at 5883 which when divided into the grant area of 1,400,000 acres, allowed 240 acres for each claimant. The 240 acre allotment, in contrast to the previous allotments of 140 and 190 acres was easy of description under the survey subdivision system and therefore presented no obstacle to distribution. All previous allotments were cancelled and Lieutenant Governor Morris was requested to proceed with the new. The drawing of allotments of the lands began on October 30, 1876 under Morris’ supervision. In a letter to Ottawa reporting the beginning of the drawing, the Lieutenant Governor reopened the discussion as to the advisability of publishing lists containing a description of the allotments and the names of the allottees as soon as possible after the distribution had been approved by the Privy Council and recommended again that the land so allotted should vest in the allottee, pending the issue of patents. The Department of the Interior in this instance either viewed the suggestions with favour or had already decided on some such practice because lists began to issue early in 1877 which described the allotments; designated the allottees and stated that the claims of the allottees had been approved.
All but seven of the parish allotments were completed in 1877 under Lieutenant Governor Morris’ supervision and 1115 patents were issued in that year. Joseph Cochon succeeded Morris at the Lieutenant Governor of Manitoba on December, 1877. Although he was asked to proceed at once with the allotments in the remaining parishes, he declined to do so because of representations that were made to him concerning disputed claims which existed in some of the parishes. The Department of the Interior was forced to investigate these claims and as a result, allotments in two parishes only were made in 1878. In that year, however, the Minister in order to facilitate the final disposal of the half-breed grants, received authority to issue to all claimants, irrespective of age or sex. Allotments were made during 1879 and the early months of 1880 in the five remaining parishes. The patent issue was practically completed in 1880. It may be said that within that year the half-breed land grant of Manitoba was settled.
Page revised: 27 November 2022
