Kirkby on Canada's First Nations and the Vote

Coel Kirkby, University of Sydney Law School, has posted Reconstituting Canada: The Enfranchisement and Disenfranchisement of ‘Indians’, c. 1837-1900, which is forthcoming in the University of Toronto Law Journal 69 (2019):

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.