Networks of Colonial Governance: Department of Indian Affairs Legal Aid in Canada, 1870 to 1970

Abstract

This dissertation study is the inaugural history of a Department of Indian Affairs (DIA) legal aid policy to appoint and fund defence counsel for status Indians charged with capital (or non-capital) murder from the 1870s, through the late 1960s. Using over six hundred case files from DIA (RG10) and Department of Justice (DOJ – RG13) records at Library and Archives Canada, this critical settler-colonial legal history explores the role of legal aid in state-formation, arguing that DIA legal aid was a technique of colonial governance co-produced by a network of legal actors within and outside the federal government. These legal actors participated in DIA legal aid in a variety of modes that reflected their positions and interests within administrative, legal, and criminal justice systems; each substantive chapter in this study focuses on these distinctive roles and modes. Three different styles of governance characterized the Department of Indian Affairs’s participation in legal aid, shifting from conciliation in the Duncan Campbell Scott era (until 1932), to a punitive mode in the McGill/MacInnes era (until 1952), and finally a mode that prioritized provincial integration (until 1970). Judges engaged in a ‘protective’ mode of colonial governance when they publicly criticized the DIA in their courts, and when they intervened in DIA policy-making. The Department of Justice engaged in a modality of ‘audit’ governance through its exclusive authority to appoint defence lawyers as ‘Agents of the Minister of Justice,’ and to approve payment of their accounts. Lawyers participated in DIA legal aid via a modality of enrichment, evident via their self-advocacy and reliance on political patronage for appointments as defence counsel. Indian Agents engaged in networked colonial governance as brokers between Indigenous communities, local justice officials, and the central DIA bureaucracy. Finally, two Indigenous legal actors participated in DIA legal aid as intermediaries and advocates through their roles in 1946-1948 Special Joint Committee on the Indian Act, and through defences they provided as lawyer and lay-lawyer. Spanning a century, and the entire geography of Canada, this national-scale study demonstrates the broad and deep relationship between the administration of justice and the administration of Indian affairs.