It’s hard to see why abolishing the Indian Act, as the Conservative leadership hopeful Kellie Leitch has suggested, would threaten Indigenous identity claims.

The recent comments by Conservative leadership candidate Kellie Leitch, explicitly stating that she would abolish the Indian Act, raised a number of eyebrows within the Indigenous community, including my own. We have heard this proposition numerous times before. Rarely, however, does this tired red herring of political rhetoric come from the potential leader of Her Majesty’s Loyal Opposition — the leader of the “government in waiting.” Not even the last leader of the Conservative Party and previous prime minister, Stephen Harper, was interested in repealing the Indian Act; he favoured some incremental amendments to modernize existing provisions.

There is no surprise, then, that interest would intensify and commentary would swell. In Policy Options, Robert Jago revisits historical attempts to essential eliminate political, social and cultural differences between Indigenous people and the rest of Canadians, and to absorb them into the body politic, to cite the early-20th-century federal bureaucrat Duncan Campbell Scott’s oft-quoted objective for assimilation. As Jago sees it, Leitch’s pronouncement on abolishing the Indian Act falls squarely within this assimilatory tradition, threatening Indigenous identity and autonomy.

These observations are consistent with some of the sentiments in many Indigenous circles. Jago, like many other Indigenous people, is no fan of the Indian Act but recognizes its emblematic value. That is, Indigenous peoples reluctantly embrace the distinction that the Indian Act bestows on them. And given the importance of identity to Indigenous peoples, any threat to their distinctiveness will invariably evoke some anxiety. But the anxiety in Jago’s synopsis is further amplified, taking it beyond what the circumstances could possibly engender, and he likens the potential outcome to something akin to what developed in the Balkans in the 1990s. This is where Jago overextends his argument, drawing a particularly unsettling conclusion.

If Jago is correct, Kellie Leitch’s position on Indigenous peoples will take us to civil war, just as such a conflict unfolded after the dissolution of Yugoslavia. But this outcome is not at all likely. Granted, repealing the Indian Act will chafe many Indigenous activists and there will be civil agitation. Yet the gravity of abolishing the Act pales in contrast to the events that led to the atrocities witnessed in the Balkans. Indeed, the civil war and genocide that ensued in the Yugoslav wars of the 1990s were precipitated by political conditions that do not resemble what we see in Canada today or what would necessarily emerge from anything Leitch has proposed.

Civil war and the attendant atrocities — ethnic cleansing and genocide — that took place in the Balkans in the 1990s did not arise easily. Howard Adelman, York University professor emeritus, has done extensive work in this area. Whereas many studies point to the failure of outsiders or bystanders to intervene, the contribution Adelman has made that is most helpful here concerns the conditions and predisposition of the perpetrators of the horrors seen in Serbia in the late 1990s. There is nothing in what Kellie Leitch said that demonstrates a propensity for violence against Indigenous peoples.

There is nothing to suggest, either, that Leitch values the existence of Indigenous peoples any less than she values any other racialized group or national minority, nor do her remarks have any dehumanizing undertones. In the comments Jago refers to, Leitch’s motivation for abolishing the Indian Act is equality. Her statement advocating abolition was followed immediately by “Every Canadian should be treated the same.” While noticeably assimilatory, Leitch’s position cannot be characterized as anything resembling xenophobia, a crucial factor for instigating civil war and barbarity along the lines of ethnic cleansing.

There is a sharp distinction between Serbia in the 1990s — Jago’s analogue — and Canada today that calls into question the possibility for conflict between Indigenous and non-Indigenous peoples. In their landmark study, Stanford scholars David Laitin and James Fearon found that extreme poverty and new or failed states are significant determinants for civil conflict. In 1995, Serbia was ripe for civil war: GDP per capita was $3,153 — less than one-tenth of Canada’s $37,568 (stated in 2010 US dollars) — and it had emerged as a new state from the breakup of Yugoslavia only three years prior. Today, Canada is the 10th-largest economy in the world and enjoys considerable political stability as it enters its 150th year.

So, the conditions for civil war and the motives behind Kellie Leitch’s comments appear to diminish the likelihood of Indigenous insurgency. But is it possible that repealing the Indian Act would generate sentiments that would get the better of these countervailing forces? Again, this seems unlikely. The contours of the legislative terrain governing Indigenous affairs have shifted considerably in recent decades. Today the Indian Act is just one piece of law in an expansive statutory regime that includes dozens of laws specifically for First Nations. It’s true that abolishing the Indian Act could be the thin edge of the wedge. But untangling the complex of Indigenous policy at the federal level is not a task that can be completed simply by repealing reams of legislation.

In some places, the Indian Act simply no longer applies to First Nations and their citizens. A number of First Nations have already opted out of it, having entered into self-government agreements with the Crown. Today, there are 22 such agreements involving 36 First Nations. While these agreements are far from complete independence and sovereignty, they demonstrate that Indigenous nations are shedding the constraints of the Indian Act and moving toward greater autonomy in their internal political affairs. In other places, Indigenous identity falls outside the ambit of the Indian Act. Almost 230 bands that are not self-governing have availed themselves of section 10 of the Act, which gives them control over membership, since it came into force in 1987.

Above all — and likely out of the reach of a prime minister, even one who has a majority in Parliament — the constitutional recognition of the special status of Indigenous peoples in Canada and the federal government’s responsibility under section 91(24) of the Constitution Act, 1982 for “Indians, and Lands reserved for the Indians” would remain untouched. In the event that Leitch becomes prime minister and repeals the Indian Act, sections 25 and 35 of the Constitution would similarly live on to recognize Aboriginal peoples and protect Aboriginal rights of the “Indian, Inuit and Métis peoples of Canada.”

It is hard to see why abolishing the Indian Act would threaten Indigenous identity claims, though admittedly some utility can be found in the nostalgia for difference that it confers. In the same way, it is difficult to conclude that the first step on the long road to civil war and genocide can be taken by repealing the Indian Act. In any case, Indigenous identity continues to be determined by First Nations themselves, in the ways in which they constitute themselves as nations with national identities. What should alarm all Indigenous peoples, however, is how their identities can be objectified and marshalled as a lightning rod to shore up Kellie Leitch’s leadership ambitions.

Photo: Andrew Scheer is flanked by Erin O’Toole, left, and Kellie Leitch at the Conservative leadership candidates’ bilingual debate in Moncton, N.B. on Tuesday, Dec. 6, 2016. The Canadian Press/Andrew Vaugha


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