From Confederation to the 1927 Amendment
to the Indian Act

he British North America Act, 1867 (now the Constitution Act, 1867) created the Dominion of Canada and, by section 91(24), gave the Parliament of Canada exclusive jurisdiction over "Indians, and Lands reserved for the Indians". In the first important judicial decision involving Indian lands in Canada, St. Catherine's Milling and Lumber Company v. The Queen (1888), 14 App. Cas. 46, the Privy Council in London, England, decided that, while Parliament has exclusive jurisdiction over Indian lands, the underlying title is held by the provinces. Aboriginal title, described by the Privy Council as "a personal and usufructuary right", is a burden on the provincial Crown’s underlying title, which means that the lands are not available as a source of provincial revenue until this burden has been removed. In 1997 in Delgamuukw v. British Columbia [1997] 3 SCR 1010, the Supreme Court of Canada decided that only the federal government has the constitutional authority to remove this burden because it has exclusive jurisdiction over Aboriginal title.

In Re Eskimos, [1939] SCR 104, the Supreme Court decided that the word "Indians" in section 91(24) of the Constitution Act includes the Inuit. In Daniels v. Canada (Indian Affairs and Northern Development), [2016] 1 SCR 99, the Court concluded that this term also includes the Métis. However, the Métis are not "Indians" for the purposes of the Natural Resources Transfer Agreements (1930) in the prairie provinces: R. v. Blais [2003] 2SCR 236.

After the Hudson's Bay Company agreed in 1869 to surrender Rupert's Land back to the Crown and Britain planned to transfer it to Canada, the Red River Métis, who had not been consulted, formed a provisional government under the leadership of Louis Riel. Negotiations between Métis representatives and the Canadian government led to the creation of the province of Manitoba in 1870. However, many Métis did not end up with the land they had been promised (see Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 SCR 623), and many of them moved further west where they could continue to pursue their traditional lifestyle. When Canada again began to assert its authority over them and ignored their land rights, the Métis took up arms at Batoche on the South Saskatchewan River in 1885. This second attempt, under the leadership of Louis Riel and Gabriel Dumont, to protect their lands and way of life was crushed by the Canadian army, which was able to quickly move troops and military equipment to the West by way of the newly constructed Canadian Pacific Railway that had reached the Prairies. Riel was unjustly tried for treason, convicted and hung in Regina.

By 1873, the four original Canadian provinces — Nova Scotia, New Brunswick, Quebec and Ontario — had been joined in Confederation by the creation of Manitoba (1870) and the admission of British Columbia (1871) and Prince Edward Island (1873). The provinces of Saskatchewan and Alberta were created out of the Northwest Territories in 1905.

The Parliament of Canada began to enact legislation relating to Indian affairs in 1869. In 1876 this legislation was consolidated and expanded in the first Indian Act. Among other things, this Act gave the Canadian government the legal authority to replace traditional Indigenous forms of government with elected chiefs and band councils, with limited, delegated powers set out in the Act. However, traditional governments were not abolished, and they continued to exercise the inherent right of self-government in many communities, sometimes covertly.

From 1871 to 1921, the federal government and Indigenous Peoples entered into 11 numbered treaties in what are now the prairie provinces, northeastern British Columbia, northern Ontario and parts of Yukon and the Northwest Territories. These treaties generally dealt with lands, hunting and fishing rights, reserves, annuity payments and other matters. They did not explicitly address the matter of self-government. Nonetheless, the federal government usually applied the Indian Act, including the provisions for elected chiefs and band councils, to First Nations who entered into treatie

In British Columbia, the only treaties were the Douglas Treaties on Vancouver Island in the 1850s and Treaty 8 in the northeastern part of the province in 1899. British Columbia refused to sanction any other treaty-making, and even brought pressure on the federal government that resulted in an amendment the Indian Act in 1927, making it illegal to raise money or pay lawyers for the purpose of pursuing an Indian claim. This effectively ended the period of historical treaty-making. In most of British Columbia, Indigenous lands were taken and tiny reserves were created without Indigenous consent.

Apart from some subsequent adhesions to earlier treaties, the last treaties entered into during this period were the Williams Treaties in Ontario in 1923.