Anti-miscegenation laws in Canada and the US, and the Canadian Indian Act

March 19, 2013

Anti-miscegenation legislation was frequently assigned to prohibit and control interracial sex and marriage, making it a prime example of states regulation of interracial intimacies. The term ‘miscegenation’ was not coined until 1863, but the West’s concern with the morality and consequences of interracial mixing is documented at least two centuries prior.
In the United States, the historical prohibition of interracial relationships exempliﬁes the state’s regulation of intimate life. Anti-miscegenation laws prohibiting interracial sex and marriage predate the Declaration of Independence by more than a century. At one time or other 41 of the 50 states have enacted such legislation, encompassing restrictions not simply against Blacks, but also Asians, Native Americans, ‘Orientals’, ‘Malays’, Native Hawaiians, and in some cases, simply all non-Whites. These laws were universally declared unconstitutional in the landmark civil rights case of Loving v Virginia (1967). Anti-miscegenation laws named as such were not enacted in Canada, though an informal and extra-legal regime ensured that the social taboo of racial intermixing was kept to a minimum. However, it is arguable that Canada’s various manifestations of the federal Indian Act were designed to regulate interracial (in this circumstance, Aboriginal and non-Aboriginal) marital relations and the categorization of mixed-race offspring.
Of particular interest is the former Section 12.1.b, ﬁnally amended by Bill C-31 in 1985, which stipulated that Aboriginal women who married non-Aboriginal men and the progeny of these interracial relationships would be denied Indian legal status, while Aboriginal men who married non-Aboriginal women would retain the status that would also be given to their wives and children. Both anti-miscegenation laws and the Indian Act are, in short, striking examples of the state’s regulation of the intimate sphere.
The Indian Act, with all its variations, clearly restricted and provided penalties for interracial sex and marriages, providing criteria against which the category of ‘Indian’ is to be measured, just as was the case in US anti-miscegenation regulations. During the colonial era, intermarriage was encouraged and seen as vital both by European fur traders and Aboriginal groups. Once the frontier came under the control of the British colonial power, however, this trend became condemnable. Though the ﬁrst Indian Act was passed in 1876, the ﬁrst of the legal instruments designed to regulate the classiﬁcation of Aboriginal peoples can be dated to 1850 when the legislatures of Upper and Lower Canada passed parallel acts that provided the ﬁrst deﬁnition of who was an Indian. This early legislation, which formed the template for all future manifestations of the federal Indian Act, provided a characterization of ‘Indian and none other’ based on having Indian blood, descent from Indians, and women married to those who met the ﬁrst two criteria.
This deﬁnition of ‘Indian’, with an emphasis on ‘Indian blood’ that would last until 1951, strongly resembles anti-miscegenation regimes in the United States which were always enacted and enforced in tandem with classiﬁcatory rules principled on the fractionalization of racial identities – that is, the determination of legal racial identity based on the amount of non-white blood a person has as represented by a fraction (1 /4, 1/8, 1/16).
In contrast to the anti-miscegenation laws in the United States, the Indian Acts were designed to remove Indian status, called ‘enfranchisement’ by the legislation itself. However, much like the United States, this was not an attempt by the state to ensure the equal treatment of Aboriginal people in Canadian society. Rather, the federal government was compelled by legal precedent, constitutional convention and colonial legacy to administer ‘Indians and lands reserved for Indians’, as per the Constitution Act of 1867. The legal category of ‘status Indian’, after all, ‘is the only category to whom a historic nation-to-nation relationship between the Canadian and Indigenous people eis recognized’. The removal of Indian status, therefore, was a two-fold strategy: it removed the constitutional Indian status of individuals, and therefore diminished the collective claim of underlying Aboriginal title to the land, and simultaneously alleviated the burden of Indian administration on the Crown.
Several provisions of the Indian Act also reveal the gendered nature of the retention or loss of Indian status. Under what would become the infamous Section 12.1.b of the 1876 Indian Act, Indian women who married non-Indian men would lose status, as would their offspring. Indian men who married non-Indian women, however, would not only retain status for themselves and their progeny, but their wives would gain status as well. […] In considering this, it’s important to note that white women were constructed in Canada as the guardians of morality and the vessels through which white civilization would continue. For a white woman to marry an Aboriginal man, she would be required to commit the sin of crossing racial boundaries and stepping beyond the societal norms of acceptable behaviour for the moral, chaste, proper and civilized ideal of femininity. Racialization and the provision of status to white wives, therefore, could be interpreted as a punishment for white women, who, while subjugated on the basis of gender were at least white, and would now have their positions on the racial hierarchy slide down to its lowest rung – that of a (legal) woman of colour.
Debra Thompson called “Nation and Miscegenation: Comparing Anti-Miscegenation Regulations in North America”
Academia.edu | “Racial Ideas and Gendered Intimacies: the Regulation of Interracial Relationships in North America.” Social and Legal Studies 18, 3 (2009): 353-371. | Debra Thompson
I’ve highlighted excerpts of this article in a way, so that, hopefully, the passage might be understood without reading the full article. While it’s quite “academic,” I think that the article is well written enough so that someone unfamiliar with the jargon might be able grasp what Thompson is trying to say. Thompson highlights the underpinnings of Canada’s horrid Indian Act, while detailing the history of anti-miscegenation laws in North America. If you’d like to learn more about the history of multiraciality in North America and whiteness, racism in the legal system and how colonial white men were threatened by just about everything, I would recommend clicking on the link to read the full article.
See more about the one drop rule here @ fuckyeahethnicwomen
BTW if the link doesn’t work for you, let me know.