Reconstituting Canada: The Enfranchisement and Disenfranchisement of ‘Indians’, c. 1837-1900

University of Toronto Law Journal, Vol. 69 (4), 2019. (Forthcoming)

Sydney Law School Research Paper No. 18/78

36 Pages Posted: 5 Dec 2018

See all articles by Coel Kirkby

Coel Kirkby

University of Sydney Law School

Date Written: November 26, 2018

Abstract

The constitutional history of Canada and First Nations is often told as the promise fulfilled of Aboriginal rights and treaties. I will challenge this dominant story by recovering the story of the enfranchisement and disenfranchisement of ‘Indian’ subjects in the first three decades of Canadian confederation. Far from forgotten actors in a foretold play, ‘Indian’ voters were crucial to determining the outcome of three closely-contested federal elections and challenging settler ideas of the nascent Canadian nation. The question of the ‘Indian’ franchise was always embedded in competing constitutional visions for Confederation. The Canadian dream of transforming and assimilating Indigenous peoples would give way to a cynical idea of segregation under the permanent regime of the Indian Act. If the Indian franchise was the apotheosis of assimilation, its revocation marked the start of racial segregation. I juxtapose these Canadian constitutional visions with two alternative possibilities. The Anishinaabe-dominated Grand General Council accepted the franchise as part of its vision of reconciling membership in both their treaty-recognized nations and the Canadian state. The Confederacy Council of the Six Nations, in contrast, rejected the franchise as an existential threat to Haudenosaunee self-rule mediated by a treaty relationship with the Canadian and imperial governments. Recovering the constitutional contests driving Indian enfranchisement and disenfranchisement shows us of how the successful imposition of a single vision of a white democracy silenced alternative visions of a multi-national coexistence. It also reminds us of the multiplicity of constitutional possibilities for a common constitutional future.

Keywords: Canada, Anishinaabe, Haudenosaunee, Indian, Indian Act, enfranchisement, franchise, right to vote, representation, legal history, constitutional law, Aboriginal law, Indigenous law, history

JEL Classification: K10, K30

Suggested Citation

Kirkby, Coel, Reconstituting Canada: The Enfranchisement and Disenfranchisement of ‘Indians’, c. 1837-1900 (November 26, 2018). University of Toronto Law Journal, Vol. 69 (4), 2019. (Forthcoming); Sydney Law School Research Paper No. 18/78. Available at SSRN: https://ssrn.com/abstract=3290933

Coel Kirkby (Contact Author)

University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

HOME PAGE: http://https://sydney.edu.au/law/about/people/profiles/coel.kirkby.php

Register to save articles to
your library

Register

Paper statistics

Downloads
32
Abstract Views
161
PlumX Metrics