Section 1: The BNA Act Amid the Redistribution of Imperial Sovereignty

Promulgation of the BNA Act on July 1, 1867, has routinely been marked by both the state and public as the genesis of a distinctly Canadian polity. In spite of this, Canadianist scholars are often rightly skeptical of repackaging 1867 as a radically transformative moment. Peter H Russell, for instance, narrates the BNA Act's federating several of Britain's North American colonies as only part three in his six-part odyssey of Canadian constitutional development. Moreover, Russell insists that Confederation “did not create Canada” (Reference Russell2017: 9). As he details in the first two parts of his history, much of what defines contemporary Canadian constitutionalism predates Confederation by as much as a century. This includes the Royal Proclamation (1763), the Quebec Act (1774), the Act of Union (1841) and the practice of responsible government. Vital contemporary constitutional arguments have been developed, and serious legal victories won by recourse to these pre-Confederation principles. The continued existence of Aboriginal rights and title being chief among these victories and part of what John Borrows (Reference Borrows2002) describes as a process of “recovering” constitutionalisms (see also: Cardinal, Reference Cardinal1969; Ladner, Reference Ladner2005). Similarly, ample evidence exists to argue that Confederation left much constitutional work undone. Clear examples include: the continuation of the Judicial Committee of the Privy Council (JCPC) as the court of last resort until 1949 (Cairns, Reference Cairns1971); the fact that, relative to today, Confederation was quite confined in both geography and cognate jurisdictions (Laxer, Reference Laxer2016); and that the power to amend written elements of the constitution remained in London until 1982 (Scott, Reference Scott1932), to say nothing of the ever-deepening constitutional entrenchment of the Crown/monarchy.

Despite the much-needed deflation of national self-aggrandizement, minimizing the significance of 1867 does risk obscuring how the important shifts toward a distinctly settler imperialism in British North America—already well underway through the pre-Confederation constitutional developments just alluded to—coagulatedFootnote ³ in and through the institutions produced by Confederation with the aim of actualizing continental conquest. Moreover, the shifts that Confederation engendered were of truly global significance. This is particularly true regarding the invention of Dominion status, as it solidified imperatives toward what Canadian constitutionalist Frank R Scott calls the “redistribution of Imperial sovereignty” toward white settler elites throughout the British Empire (Reference Scott1977: 246).

Scott's phrasing is key to my own argument. Confederation must be understood not as a radical transformation, and certainly not as even tending toward decolonization, but as a redistribution or devolution of the exercise of Crown sovereignty in North America (and later in the world writ large). John Borrows pithily argues that asserting Crown sovereignty on the territories of Indigenous peoples amounts to “magic crystals being sprinkled on the land as a justification for the diminution of Aboriginal occupation and possession” (Reference Borrows2002: 96). Confederation transferred responsibility for directing the scattering of those crystals in North America from the imperial parliament in London to settler government(s). With recourse to debates in both the imperial parliament and the legislature of the united provinces of Canada, I draw out below how these redistributions coagulated into a distinctly Canadian settler imperialism. Albeit, one that remained partially within the ambit of the British Empire until the mid-twentieth century. Moreover, I suggest that this Canadian model of redistributing imperial sovereignty—rather than America's example of settler revolt—became a defining feature of the early twentieth-century recomposition of the British Empire through the further extension of Dominion status to other jurisdictions in the empire dominated by white settlers.

It has become a truism of Canadian political science and history to assert that the Dominion government lacked jurisdictional competency in “foreign” affairs from Confederation until the ratification of the Statute of Westminster (1931). The sixth edition of Stephen Brooks’ introductory textbook, Canadian Democracy, suggests that in 1867 the “power to enter into foreign treaties” was retained by London (Reference Brooks2009: 95). But such an account can stand only if we continue refusing to see Indigenous peoples as nations. By effacing the significance of treaty-making in Upper Canada prior to Confederation and the proliferation of the Numbered Treaties from 1871 to 1921, dominant accounts of Canadian “foreign” policy reproduce the racialist conceits of the imperial worldview embedded within the BNA Act itself. The realm of the “foreign” becomes constituted through an implicitly racialized understanding of nationhood and through the retrospective, transhistorical projection of Canada's contemporary claims to continental territorial jurisdiction. Repetition of the claim that Confederation withheld from the Dominion government jurisdictional competency in matters of “foreign” relations reveals that Canadianists continue to write as if properly “foreign” relations were only between states in which whiteness (or something sufficiently analogous) unified the ruling classes (Massad, Reference Massad2018).

It may be helpful, therefore, to consider how the BNA Act, in order to redistribute imperial sovereignty, required and performed a substantial reduction of what James Tully (Reference Tully1995) calls the “strange multiplicity” of political subjects and sources of authority recognized within the constitutional documents of British North America prior to 1867. For instance, while the extent and depth of the recognition is contested, the Royal Proclamation (1763) and the Treaty of Niagara (1764) functioned jointly as constitutional recognition of the political autonomy of Indigenous peoples alongside or within the ambit of the British Empire (Beaulieu, Reference Beaulieu2017). Notably, this recognition was extracted from the Crown through concerted, armed internationalist struggle by Indigenous nations throughout the Great Lakes region (Middleton, Reference Middleton2007). By even the most reductively black-letter interpretation of British North America's pre-1867 constitution, the “Nations or Tribes of Indians” were considered to be “connected” to the Crown. Perhaps this recognized their autonomous authority, but at a minimum, they were “under [the Crown's] Protection” and therefore were not to be “molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them” (Hanover, Reference Hanover1763). A proscription aimed against encroaching settlers. In short, these documents construct Indigenous peoples as constitutionally recognized actors within the empire, imbued with certain affirmed rights exercisable against settlers.

As gestured to above, even this ambiguous degree of constitutional subjecthood, recognized by the Crown out of the perceived necessity of maintaining an imperial balance of power, was a catalytic factor in the American Revolution. That the imperial order could countenance Indigenous constitutional subjecthood provoked anxiety, animus and eventually revolt amongst land-hungry settlers. They perceived themselves as hemmed in by a distant imperial government that sought to balance a broad ledger in which the perceived needs of settlers had to be weighed in the balance against other allies of the Crown, some with diametrically opposed interests. America's westward invasions following independence should be read in this light: as the fulfillment of the settler revolt for an empire of their own (Horne, Reference Horne2014; Rana, Reference Rana2010).

Without recourse to revolutionary means, Canadian settler imperialism was also brought into being through the de facto abrogation of the Royal Proclamation. As late as 1837, the Parliamentary Select Committee on “Aboriginal Tribes” in London warned against devolving jurisdiction over relations with Indigenous peoples to settler governments, as it correctly feared the consequences if influential land speculators drove local policy. That is, the Committee recognized that settlers would exhort their governments to abrogate whatever limited rights and protections were held by Indigenous peoples in order to seize more territory as property. Aziz Rana's (Reference Rana2010) thesis—that American freedom is produced through the unfreedom of others—is also reflected in Canadian history. Consider the Select Committee's urging against devolution in 1837, alongside recommendations of the radical liberal John Lambton (Reference Lambton1839, the so-called Lord Durham's Report) that “responsible” government was the solution to unrest amongst settlers in the Canadas. Whereas Lambton holds out settler self-rule as a technology of governance to quiet unrest, the Committee recognizes (though only implicitly and not in these terms) that, when coupled with the mute compulsion of racial capitalism's social relations of artificial scarcity, a democratic political transition among settlers will likely produce an accelerated and state-backed drive toward territorial expansion. This drive is compelled by a profit-hungry class that accumulates wealth by their ability to withhold the necessaries of life in exchange for capital. But it is often enacted by the landless poor, who see themselves as having everything to gain by participating in the dispossession and colonization of Indigenous peoples (Henderson, Reference Hendersonforthcoming). In relatively quick order, as settlers’ legal, political and economic power grew relative to other populations within the empire, the Committee's advice was disregarded and settlers began setting day-to-day “Indian policy.”

Jurisdiction over relations with Indigenous nations and over the Crown's nominal claim to their territories was redistributed from London to settler governments in British North America, largely in parallel to the entrenchment of responsible government. Governors in British North America increasingly were directed by local legislatures rather than by London. Instead of jockeying for influence amid a wide array of competing imperial sectors, settler interests were now articulated through legislatures elected explicitly by the propertied and dominated by land speculators and railway barons. By 1860, the so-called “Indian” Department had been fully transferred to the province of Canada, where it was tellingly housed under the Crown Lands Department. Though initially a neglected office, James Leighton details that, within these new institutional realities, the interests of both land-hungry settlers and the business classes of the colonies successfully converged in pressuring the legislature and bureaucracy to expedite territorial expansion (Reference Leighton1975: 185). Thus, while the BNA Act did not revolutionize settler-Indigenous relations, it constitutionally codified the emerging logics of settler supremacy enabled by the redistribution of imperial sovereignty. This is most evident in section 91(24), which summarily asserts the new Dominion government's jurisdiction over “Indians, and Lands reserved for the Indians.” Through this clause, the recognition afforded to Indigenous peoples within the British Empire by way of the Royal Proclamation was largely abrogated, in fact, if not in law. The redistribution of imperial sovereignty in 1867 constitutionalized the transfer of Indigenous peoples and their territories into the ambit of a polity dominated by, and answerable primarily to, those who understood themselves as having a direct interest in expanding processes of territorial dispossession throughout the northern portions of North America.

Often, in glossing over this period of transition from British to settler jurisdiction over Indigenous relations, emphasis lands on the declining importance of military alliances with Indigenous peoples due to the demographic surge of settlers into the Canadas and the Atlantic colonies following the War of 1812 (Canada, Erasmus, and Dussault, Reference Erasmus and Dussault1996: 130–38). Although this is no doubt a part of the history, it is also fraught to rely too heavily on mere demography. Not only does it fail to account for the aggressive application of naval force and the doctrine of terra nullius on the west coast, but it also does little to lay a helpful groundwork for understanding the full-scale invasion and subsequent occupation of Red River and the Prairies that Ottawa orchestrated in the course of claiming a continental empire toward the close of the nineteenth century (Stark, Reference Stark2016; Monaghan, Reference Monaghan2013). These events are often narrated deterministically as inevitable, but the sheer scale of the violence in the assertion of settler sovereignty suggests that it was seen as anything but inevitable at the time. If it was inevitable, it would not require such persistent, ongoing brutality. The use of force was overwhelming because it was opposed by entrenched internationalist, anti-colonial resistance. Accounts of Indigenous resistance in the North-West (Adams, Reference Adams1995; Andersen, Reference Andersen2014; Daschuk, Reference Daschuk2013; Teillet, Reference Teillet2019), as well as histories of west coast resistance (Arnett, Reference Arnett1999; Coast, Reference Coast2013; Hill, Reference Hill2010; Perry, Reference Perry2001; Smith, Reference Smith2009), remind us of just how much violence settlers required to establish their continental rule through the dispossession and displacement of Indigenous polities. These facts evince a profound capacity on the part of Indigenous peoples to exert themselves against settler invasions, and thereby imply the continued possibility of significant military alliances had this actually been desired by settler governments.

The focus on military allegiances also risks obscuring the equally important developments internal to the cohering settler class at this transitionary conjuncture. Most notably, martial histories miss how the sometimes raucous demands for settler autonomy acted as a point of articulation by which an intra-settler alliance emerged around the call for and assertion of greater settler authority in matters of “local” importance (Russell, Reference Russell2017: 90–121; Greer, Reference Greer1993). Put more plainly, it is analytically suspect to presume that the mere presence of settlers past an arbitrary demographic threshold is either a sufficient or a necessary condition in tipping the scales of imperial decision-making. Instead, it is crucial to understand the social forces at play within the conjunctural formation of settlers as a class, in which relatively poor settler men are invited to deliberately articulate their interests with the colonial elites and in opposition to Indigenous peoples by participating in the usurpation, occupation and commodification of land. Encapsulating the nature of this transition, Howard Adams (Reference Adams1995) details how, in resisting the invasion and occupation of Red River, non-Indigenous and Métis farmers were able to briefly articulate their interests into a common front against Canada. This front was eventually broken, however, by both military force and Canada's construction of governing institutions that promised to empower non-Indigenous farmers as white citizens over and against Indigenous peoples.

Section 2: Dominion Status Draws the Global Colour Line through North America

Political scientists, historians and legal theorists generally view the BNA Act as constituting a space of domesticity within which the Dominion and provincial governments were granted only local self-government under the umbrella of the British Empire until 1931. Writing against this consensus, Tyler Shipley importantly and correctly argues that the Indian Act (1876) is the “first full, codified framework through which Canada dealt with its formative foreign relations” (Reference Shipley2020: 53). However, this risks treating as policy that which is in fact constitutional. The BNA Act redistributes to the settler polity jurisdiction over peoples racialized as “Indians” and over a presumed allodial title to continent-spanning lands belonging to those same peoples. Some have proposed that allocation of this jurisdiction to the federal government, rather than to the provinces, is evidence of “the continuation of the nation-to-nation Crown-Aboriginal relationship that existed prior to Confederation” (Bird, Reference Bird2010). However, as I show below, if this is the case, it is not—as the phrase seems to imply—a relationship between equal nations. Rather, at best, one can suggest that section 91(24) transfers from London to Ottawa the exercise of imperial suzerainty over Indigenous nations that was asserted in the Royal Proclamation. By contrast, I find exceedingly little of recuperative value in section 91(24). Reviewing the history, the Dominion government used this power to enclose and attempt to dismember Indigenous nations. I argue that section 91(24) of the BNA Act, in conjunction with section 146 (annexing the Hudson's Bay watershed), is what Jodi Byrd (Reference Byrd2011: xxii) calls the “ghost in the constituting machine.” It enables the transition from settler colonialism within the British Empire to a project of increasingly autonomous Canadian continental imperialism directed by a settler ruling class: what I will simply call settler imperialism.

Indeed, continentalist ambitions were indicated in the very nomenclature of these new institutions. Many note that conferring “Dominion” status—an alternative to “kingdom”—on Canada was meant to appease America's republican sensibilities (Scott, Reference Scott1977: 11–13 and 159; Jackson, Reference Jackson2018). But relatively few have marked the intention of conquest declared by the invocation of Psalm 72 (KJV). In particular, by verse eight's assertion that the king's “Dominion” reaches “from sea to sea, and from the river unto the ends of the earth” (see: Bowden, Reference Bowden2015; Lane, Reference Lane and Barthet2009). The redistribution of imperial sovereignty empowered a settler class to use their new self-ruling Dominion to make the Crown’s nominal claims to globe-spanning sovereignty real throughout northern North America. Fewer still, though, have considered what was portended for Indigenous peoples and other subject populations within the settler polity by the promise in verse nine that those who “dwell in the wilderness shall bow before him [again, the king]; and his enemies shall lick the dust.” These were the images sitting ready at hand and deliberately invoked by the framers of the BNA Act; they drew on many of the Christian/white supremacist doctrines energizing European imperialism as they positioned their own ambitions toward a continental project clearly envisioned within the long trajectory of other crusader societies. Far from the merely subordinate position within empire that some Canadianists have lamented, the very concept of Dominion status has embedded within it the imperial promise of rule over other peoples.

As Russell notes, in constructing this new settler state's institutions, “a continent-wide Dominion” was very much seen as the “manifest destiny” to which Canada's architects were ascending (Reference Russell2017: 147). This sense of manifest destiny is palpable in the province of Canada's 1865 Confederation debates, which largely set the agenda leading into the BNA Act. Thomas D'Arcy McGee was notable in the debates for the forthrightness with which he tied a liberatory future for settlers to the expansion of their imperial reach. Drawing his lessons from the American example, McGee asserted that the “acquisition of new territory” is seemingly an “inexorable law of democratic existence” (Waite, Reference Waite1963: 81). No serious thought was given throughout these debates in the Canadas to the fact that Indigenous peoples were already engaged in systems of governance throughout the entirety of the territories proposed for annexation, or to the brutal realities of what dispossession and displacement would entail. The few scant references made to Indigenous peoples throughout these debates reduced Indigenous life to mere occupancy and sought to downplay the significance of even this fact. George Brown's breezy attitude typified whatever marginal thought was lent to the realities of conquest when he asserted that “the vast Indian [sic] Territories between [Atlantic and Pacific]… will ere long, I trust, be open to civilization” (Waite, Reference Waite1963: 60).

The devolution of explicitly imperial ambitions and planning to settlers, institutionalized by Confederation's innovation of Dominion status, was more than ideational. It was also understood at the time as the solution to a perception that the advance of imperial interests had stalled. Viewed from the distant vantage of London, the northern interior of North America was seen by British parliamentarians as “one of the most inaccessible regions of the earth.” Justifying his government's fulfillment of a loan in 1869 (by which the new Dominion government purchased much of so-called Rupert's Land and the North-West from the Hudson's Bay Company (HBC)), British Member of Parliament (MP) and Secretary of State for War, Edward Cardwell, bemoaned the “[c]ontinual embarrassment” resulting from the persistence of Indigenous polities throughout these territories. Suggesting it could be corrected through “an arrangement by which—the sovereignty of this region remaining with the Crown—the rights which the Sovereign exercised were transferred to the Colonial Government.” While Cardwell would not have used these words, we can see the reality of Indigenous systems of governance and mobility animating his timorous concerns. He noted that as a result of the lack of “settled Government” in the area, “bodies of Indians” were reported to be “traversing… that extensive region” and crossing “from time to time [into]… Minnesota.” The seasonal round of some Indigenous nations’ governance systems striated the efforts of imperial powers to smooth and enclose the territories and evoked an anxiety that ultimately culminated in London's support for institutionalizing settler leadership of the invasion of these territories in order to subdue Indigenous governance systems (Commons Debates, August 5, 1869; Henderson, Reference Henderson2017).

Geography and distance were not the only perceived impediments to imperial expansion, however. The institutional inertia of the HBC, which was far more concerned with extraction than with “civilization” or land acquisition, was also viewed as a major problem. British MP Arthur Mills asked forcefully whether the government of the day would allow the HBC's charter to continue to be an “obstruction… between the colonization of [northern North America] and a colony [Canada] which has manifested its readiness to undertake” this project (Commons Debates, July 1, 1864). To facilitate the ascendency of settler imperialism, then, the HBC's corporate power to exert territorial jurisdiction against others within the empire was sharply curtailed and largely limited to a few remnant forts.

The BNA Act, in George Brown's words, was designed to bring into existence the “governmental machinery” that could achieve continental conquest under the direction of a ruling class of settlers (Waite, Reference Waite1963: 60). As Alexander Galt made clear in Canada's Confederation debates, the BNA Act sought to equip this emerging settler polity with the institutional resources to take the “immense extent of territory that stretches away west of Upper Canada” and ensure that it becomes a “source of strength instead of a burden to us and to the Mother Country also” (Waite, Reference Waite1963: 56). Settlers, as a cohering class (which was, in fact, attempting to subtend within itself a contradictory articulation of cross-class alliances) were widely understood to have the most immediate and voracious interests (internally varied as they might be) in dispossessing Indigenous peoples in order to annex and occupy the continent.

The BNA Act, then, was the institutional hinge on which a project of settler colonialism within the British Empire pivoted toward a distinctly Canadian project of settler imperialism. This cohering historic bloc of settlers provided the clearest possibility to extend and expand processes of dispossession/accumulation that were of central concern at the time, primarily in the form of acquiring land and resolving the crises of surplussed populations within Britain. The expulsion or escape of the landless poor from Europe into the empire's false promise of “empty lands” is sufficient to explain much of this drive amongst settlers. Notably, though, many ideological reasons, such as Christian and white supremacisms, and attendant “civilizing” missions, powerfully underscore why settlers (often drawn from lumpen segments of their own societies) tended to become the most energetic force propelling colonization abroad.

Section 3: Federalism and Constitutional Whiteness

As no ruling order is pre-ordained, enormous work necessarily went into cohering the Canadian historic bloc. In the face of the anti-colonial resistances discussed above, Project Canada needed to overcome longstanding internal antagonisms among settlers themselves. Most notably between anglophone/Protestants and their francophone/Catholic counterparts, as these represented the most dramatic lines of fracture among settlers in British North America at the time. The solution, famously, was federalism. But while nearly every Canadianist has had something to say on the centrality of the federal arrangement to Canadian political life, relatively few have paused to consider the racial regime that the federal arrangement institutionalized by securing constitutional whiteness. Importantly, my argument is neither a transhistorical nor an abstract critique of the federal-form as such, nor is it meant to suggest that racial regimes are invariably rooted in federal arrangements or vice versa. Rather, this argument is limited to the particular conjunctural role that Canada's federal arrangement played in institutionalizing the articulation of a settler class with sufficient internal coherence to mediate intra-settler conflicts through collaboration in continental conquest.

Stanley Ryerson's canonical account of Confederation as the institutional entrenchment of a ruling class within Canada suggests that the “‘problematic’ of colonial union embraced three areas of difficulty: geographic, economic, and ethnic” (Reference Ryerson1975: 309). On this third matter, Ryerson gestures toward the foundational cleavage between the “[t]wo historically constituted national communities—two nations” that, in his estimation, “dwelt side by side in British North America”: francophones and anglophones (Reference Ryerson1975: 311). It is beyond the scope of this project to enter into the vibrant debates on the current status of the Québécois nation within Canada (see: Laforest, Reference Laforest2014; Michaud-Ouellet, Reference Michaud-Ouellet2019; Rioux, Reference Rioux1978); nevertheless, Ryerson's thesis that Confederation is an unequal union is a useful departure point for this discussion. In particular, while he details throughout the myriad ways in which the position of the Québécois within Confederation was clearly one of deliberate underdevelopment, Ryerson also notes the central importance of the aspirant union between francophones and anglophones that was facilitated by the federal arrangement.

This was a much-discussed point during the Confederation debates as well. From the floor of the Canadian provincial legislature, George-Étienne Cartier offered this remarkable assessment of the union that was being pursued:

Commentators have long looked to sentiments like this and to the “social union” of francophones and anglophones as evidence that the BNA Act's federal arrangement had toleration as one of its core tenants (Russell, Reference Russell2017: 133). Indeed, no less an authority than the Supreme Court of Canada (1998) has pointed to this precise statement from Cartier as evidence that “respect for minorities [sic]” was a foundational principle of Confederation and that “[f]ederalism was the political mechanism by which diversity could be reconciled with unity” (para 43).

The court is hardly alone in this characterization either. William H Riker's claim that federalism is the “constitutional alternative” to empire (Reference Riker1964: 4–5) and that it was allegedly arrived at first by the newly independent American settlers because “imperial expansion was impossible… [so they had] to bargain rather than conquer” (Reference Riker1964: 24–25) remains an accepted account of the federal-form. Importantly, Riker's account fully absents Indigenous peoples from its implied history of North America. Both in the topically significant exclusion of the Haudenosaunee Confederacy as a (if not the) primary example of a federal polity, but also because he absents Indigenous peoples entirely from his narrative of American expansion. Indeed, while Riker is clear that federalism, in fact, facilitated America's continental expansion, this does not rise to the level of “imperial” conquest for Riker because: (i) he ignores the existence, let alone the political autonomy of Indigenous peoples; and (ii) because white settler communities were admissible to the republic as constitutionally protected states, a fact which Riker takes as evidence of a non-imperial process.

Even contemporary political scientists, who have a far more nuanced account of settler sovereignty as a claim staked against Indigenous peoples, tend to insist that empire and federalism are antithetical political formations. Russell's recent treatise on the development of the claim to sovereignty stands out in this regard. He adopts a more historically grounded account of Canadian sovereignty, noting specifically that the redistribution of sovereignty from the imperial metropoles to settlers through the BNA Act constitutes a major hinge-point in the worsening conditions of Indigenous peoples. Nevertheless, Russell acknowledges this while simultaneously obscuring the fact that federalism was the institutional articulating pin that made the hinge-point possible in Canada. This is dramatized in his book by a chapter split in which his excellent critique of “Settler Sovereignty” (Reference Russell2021: 71–84) is immediately, and largely without commentary, followed up by a chapter on how “Federalism Takes the Sting Out of Sovereignty” (Reference Russell2021: 85–98). While Russell argues in this latter chapter for Canada to expand its federal arrangement to include “treaty federalism,” he lacks an account first of the fact that federalism was arrived at as an institutional framework that did not merely exclude Indigenous peoples as constitutional actors but actually facilitated an intra-settler alliance bent on continental conquest. And, secondly, given the relatively stymied nature of the modern treaty process, the de facto abrogation of unfulfilled historic treaties and the generalized constitutional intransigence among the various governments of Canada toward deep constitutional reforms, Russell's laudable call to move toward treaty federalism lacks either an immanent constitutional mechanism or a theory of the social forces by which this will be achieved at all. Let alone in a way that actually advances Indigenous peoples’ demands.

If, then, political scientists tend to see federalism and imperialism as antitheses, my claim is precisely the opposite. Within the Canadian context, federalism was the institutional arrangement that historically enabled settler imperialism because it institutionalized the articulation of francophone and anglophone settlers into an explicitly expansionist polity. The BNA Act and its federal arrangement, in particular, are the transcript of the state's racial regime. It constitutionalizes whiteness. The Supreme Court's account of Confederation repeats an anachronism present in Ryerson as well, as they translate the explicitly racialist logics at work in Cartier's address into the language of ethnicity. Such an ahistorical and deracinated account of federalism uses the alliance between just two hitherto antagonistic communities (who understood themselves in racialist terms) to stand in for a generalized principle of toleration that never existed. Viewed from the perspective of the twenty-first century, Cartier's description of the anglophones and francophones of British North America as distinct races likely seems counter-intuitive. This almost certainly explains Ryerson and the Supreme Court demurring from the word “race” entirely. At the time, however, it was largely commonsensical within either community. Indeed, the question of whether a “unity of races” amongst settlers was possible in British North America was not merely rhetorical, it had frustrated and destabilized British imperial designs in North America since before the conquest of 1763. The initial assimilationist stance of the Royal Proclamation (1763) toward the Canadien was eventually rescinded as unworkable and replaced by a policy of modest (if uneven) accommodation through the Quebec Act (1774). A high-water mark throughout the empire in terms of recognizing non-anglophones and Catholic elites as rights-bearing subjects of the Crown. In spite of this, nearly seventy years later, we find in John Lambton's report (Reference Lambton1839), an account of the 1837-1838 rebellions, in which racial animosity between francophone and anglophones remains paramount. Lambton went so far as to characterize this as a “war” between the two communities. These events dramatize both the imperial project's oscillating attempts to articulate a stable historic bloc and that race—while entirely fictive—is a brutal and brutalizing social force.

The desired stability was arrived at through the federal arrangement of 1867. The BNA Act institutionalized an intra-settler alliance that maintained a complex and differentiated unity in the name of continental conquest, as well as the simultaneous subordination of other non-white populations within the polity. Federalism functions through what Hall called a “complex unity,” inasmuch as the shared project of producing and expanding a white settler polity unifies settler communities that remain differentiated along a number of axes. Furthermore, the federal arrangement also facilitated policy differentiations that were responsive to a variety of localized settler demands and modes of anti-colonial resistance. This is exemplified perhaps most dramatically in a constitutional sense in Owen Toews’ (Reference Toews2018) argument that the delay between the admission of Manitoba into Confederation in 1870 and the devolution of full responsible government to its legislature in 1874 was a deliberate policy of waiting until thousands of white settlers from Ontario had resettled at Red River over the intervening period. As Toews argues, this was a policy pursued by the Dominion government under Macdonald to “swamp the Métis majority” in order to ensure that the constitutional powers of the province were exercisable only within the context of a “racial democracy” (Reference Toews2018: 44–45). Ensuring this white democracy was amongst the first post-Confederation legislative priorities in other provinces too, leading notably to the withdrawal of the franchise from Asian-descended communities. This took place over several waves in British Columbia. For example, the relatively large Chinese-descended communities, who were building the province's rail infrastructure (itself key to Confederation), were stripped of their right to vote in 1872 alongside people with Indian status. This established white minority rule within the province, as together these communities formed a demographic majority at the time. Similarly, in 1895, Japanese-descended communities were disenfranchised and in 1907, a year that also saw white mob violence seize the city of Vancouver in an anti-Asian riot, émigrés from South Asia and their descendants were also removed wholesale from voter rolls. Moreover, as federal voter rolls were typically drawn from provincial lists, this often meant the total disenfranchisement of these negatively racialized communities (“Electoral History of BC,” 2022; see also: Day, Reference Day2016; Bhandar, Reference Bhandar2018).

When political exclusion failed to produce a Canada that was sufficiently whitened on its own, settler governments often turned to more all-encompassing exclusionary legislation, such as the 1885 Head Tax on Chinese émigrés or the 1908 Continuous Passage Act which was designed to prevent immigration to Canada from throughout Asia, but especially from the Indian subcontinent. The latter legislation is particularly significant in the context of my arguments about the development of settler imperialism. The Dominion government was explicitly asserting white settler sovereignty against the principles of imperial citizenship that would have otherwise permitted free movement within the British Empire as a whole. Settler sovereignty, then, included the right to exempt Canada from these specific obligations within the empire should they threaten the perceived interests of the white settler polity. A posture that was tested in 1914 with the arrival of the Komagata Maru, which was refused safe harbour, and its 340 passengers were forced to make a perilous journey to Kolkata (Dhamoon et al., Reference Dhamoon, Bhandar, Mawani and Bains2019). In a darkly ironic twist, this exercise of settler sovereignty against these obligations in the British Empire occurred only weeks before the Dominion government elected to fulfill its military obligations to Britain by sending hundreds of thousands of mostly poor and working-class young men into the industrial slaughter of the First World War. Perhaps as dramatic an indication of the poisoned cup of whiteness as one can imagine.

As settler sovereignty was being exercised to produce Canada as a white polity through exclusion, it was also being simultaneously wielded to produce the same effect through the enclosure and confinement of Indigenous peoples within the reserve system. This system functioned partly in response to political economies shaped by the distinct needs of the settler capitalist and landowning classes in various places. So that, in British Columbia where industrial demand for hyper-exploitable labourers remained relatively high in sectors like canning and logging, reserves were designed to be smaller and in closer proximity to urban centres in order to produce a greater compulsion toward Indigenous persons engaging in waged labour (Harris, Reference Harris2002; Muszynski, Reference Muszynski1996). By contrast, in the Prairies, the implementation of the “pass system” was designed to effectively incarcerate Indigenous peoples on reserves, unless expressly permitted to leave by an Indian Agent. This cut Indigenous peoples off from the bulk of their territories and from access to subsistence hunting and harvesting so that the land could be subjected to increasingly intensive industrial agriculture (The Pass System, 2016). In all cases, the reserve system functioned through intimate forms of surveillance and violence in order to racialize Indigenous peoples as “out of place.” It was also highly gendered in the ways in which Indian Agents, police, and other state officials targeted Indigenous women (Nickel, Reference Nickel2019: 23–31; Brownlie, Reference Brownlie2003).

Importantly, this discussion is not to suggest flattened equivalencies between the Indigenous peoples experiencing colonization of their territories in North America and negatively racialized migrants (often themselves Indigenous peoples forced into diaspora as a consequence of empire) excluded from or exploited within the settler polity. Instead, I take these experiences as evidence of a multiplicity of distinct trajectories within a world system of European and settler imperialisms, at the same time as they are often lived through interrelated histories of struggle (see: Karuka, Reference Karuka2019; Maynard and Simpson, Reference Maynard and Betasamosake Simpson2022; Mays, Reference Mays2021). My inflection here is on where these processes converge: in their co-constitution of and through explicitly white settler power structures as the institutional bedrock for the extension and reproduction of racial capitalism throughout northern North America.

On the one hand, it comes as no surprise that there is an aversion in mainstream Canadian political science to discussions of the actual racial logics at work in the transition toward and maintenance of settler imperialism. Many scholars note a strong aversion within the social sciences in general and within Canadian political science, more specifically, toward interrogating race as definitionally a relation of power/domination (Dhamoon, Reference Dhamoon2010; Nath, Reference Nath2011; Thompson, Reference Thompson2008). Even in spite of all this, however, it is still jarring to see how little analysis is given to the intensely racialist logics of Confederation that Cartier outlines above. To the degree that race is commented upon even tacitly, most scholars reflect on the exclusion of negatively racialized groups (particularly Indigenous peoples) from the Confederation process. An assertion, which while true, may imply an uninterrogated normative assessment that it, in fact, would be good to be included in a project like Canada. A focus solely on exclusion also simultaneously misses the fact that Indigenous peoples and other negatively racialized populations were often forcibly included within colonial polities on differentiated terms of highly exploitative, uneven integration (Getachew, Reference Getachew2019: 17–19).

In short, what is almost invariably missed here is the role of federalism in coagulating and institutionalizing a racial regime of what can be best described as constitutional whiteness, deliberately aimed at continental conquest. Thus, in a very real sense, we should take seriously the work that federalism has done in producing a polity in which Cartier's appeal for unity between francophones and anglophones has become counter-intuitive (even absurd) as a racial discourse. This is evidence that we live in the midst of his successes. Far from de-racializing either community, Canada produced this unity by constitutionalizing whiteness as a process by which to suppress certain intra-settler conflicts. Crucially, this cannot be anachronized or abstracted into a claim that Confederation was founded on some universalist principle of “respect for minorities.” It was not. No matter what the Supreme Court would say to assuage liberal guilt or to redeem the state-building project. Quite to the contrary, what we see instead is a suspension (or, at least, a sufficient institutional mediation) of those particular divisions so salient to historic conflicts in Europe and the initial struggles over colonization of North America. The aim was to produce a state apparatus with the capacity to exert continental dominance over those outside this racial alliance. In short, what we see is the constitutionalization of an already nascent political whiteness through which settlers, both franco and anglo, Catholic and Protestant, are able to unite both in claiming the territories of Indigenous nations for themselves and in dominating, exploiting, and/or excluding others who are outside of the pale of whiteness (Madokoro et al., Reference Madokoro, McKenzie and Meren2017). In this vein of thought, I have largely followed Cedric Robinson's account that whiteness is not reducible to phenotype, but rather is a political category which is achieved in North America by the offshoring of racialisms internal to European societies (Robinson, Reference Robinson2020: 9–28). Likewise, Aileen Moreton-Robinson (Reference Moreton-Robinson2015) observes that, in settler contexts, among the primary aims of whiteness is facilitating Indigenous dispossession. But I also should accent Joel Olson's argument that whiteness emerges through “a cross-class alliance between the dominant class and one section of the working class” (Reference Olson2004: xxiv), which is invited to partake in a share of the plunder of dispossession and hyper-exploitation in exchange for both their labour and quiescence in maintaining the presently dominant social order. The settler class that is at the core of this Canadian imperial project, thus, remains internally differentiated, even as the struggles produced through those contradictions tend to become displaced in ways that buttress projects of empire.

Nevertheless, the racial regime of Canadian settler imperialism is in a near-constant state of rearticulation. As are all racial regimes. This is both as a result of anti-imperialist struggles and the shifting needs of the dominant social order. For instance, while federalism has enshrined a constitutional whiteness that bridges and anachronizes the racialist animosities between anglophones and francophones of the nineteenth century, this has always remained a point of articulation rather than a total synthesis. The potential for rupture, or disarticulation, has always been there—even quite early on in the project. Such as when the state murder of Louis Riel for leading the resistance to Canada's conquest of the North-West evoked considerable sympathy and anger amongst his fellow francophone Catholics throughout the Dominion. Importantly, though, as Kevin Bruyneel (Reference Bruyneel2010) points out, the significance of Métis self-determination, and the possibility of this for Indigenous peoples generally, was overshadowed in the imaginations of sympathetic settlers by their perception that Riel was scapegoated as a French-speaking Catholic. As such, his murder was eventually recuperated as a “sacrifice” that has been used to ideologically resuture Project Canada's federal arrangement.

Importantly, though, the instability of the racial regime of constitutional whiteness—this potential to disarticulate the components of the Canadian historic bloc—has persisted well into the twentieth century. Notably, segments within the Québécois nationalist movement have at times sought to build bonds of solidarity between their struggle and those of Third World anti-colonial movements and Black freedom struggles in America (Mills, Reference Mills2010). Admittedly, this produced rhetorical framings that, in some instances, were deeply distasteful in their comparisons. Moreover, the terms of this solidarity were often premised on the near-total erasure of the Québécois’ status as white settlers (Austin, Reference Austin2023), evincing comparatively little interest in solidarity with the Red Power movement burgeoning simultaneously or with negatively racialized communities within Québec/Canada. But the brief conjuncture in which a portion of the Québécois nationalist movement saw itself as tied to the fate of the Third World produced one of the most serious challenges to the core point of articulation within the Canadian historic bloc since Confederation. A fact that was not missed by the security apparatuses of the state which sprang into full repressive, counter-revolutionary overdrive in order to suppress and dismantle these currents and to domesticate the nationalist movement as a whole (Whitaker et al., Reference Whitaker, Kealey and Parnaby2012).

Section 4: The Canadian Conjuncture in Global Context/Contests

Even in spite of its contingent, and therefore unstable, articulation of social forces, the emergence and institutionalization of the Canadian historic bloc was a dramatic innovation within the world system dominated by British imperial hegemony. Indeed, the political theory of Dominion status inaugurated in 1867 exerted an almost ineluctable pull throughout the British Empire, resulting in a significant renovation of its institutional frameworks as sovereignty and responsibility for the project of conquest were increasingly redistributed to the imperial jurisdictions in which the settler ruling classes became unified and deemed “capable” of self-rule. When the Balfour Declaration (1926) gave sinew to the bones of Dominion status. it was notable that amongst all the jurisdictions of the empire, only Australia, Canada, Ireland, New Zealand, Newfoundland, and South Africa were granted this status. As Robbie McVeigh and Bill Rolston (Reference McVeigh and Rolston2021) note, these “dominions were all explicitly racial formations—power had been devolved to their settler colonial rather than their native populations… their self-governing status was predicated on their whiteness… it was this quality that was reasoned to qualify them for this specific position in the imperial hierarchy” (Reference McVeigh and Rolston2021: 145). With constitutional whiteness at its core, Dominion status facilitated a broader pivot from settler colonialisms within the British Empire and toward settler imperialisms, a gradual shift which became increasingly evident in retrospect. Several decades after the passage of the BNA Act, one British MP, Leo Amery, stated—to the wide agreement of his fellow MPs as they debated further devolution of sovereignty throughout the empire—that the “Dominions have grown not toward the status of ordinary nations but toward the status of Imperial nations.” They had accrued to themselves “a position and a sense of Imperial responsibility like ourselves” (Commons Debates, November 20, 1931 and November 24, 1931).

No lesser a figure of English white supremacism than Winston Churchill made clear the perceived necessity of maintaining this connection between Dominion status as signifying a right to self-determination through constitutional whiteness. Addressing to the House of Commons his concerns about the Statute of Westminster (1931), which codified the principles of the Balfour Declaration, Churchill argued in a bellicose fashion that all Members should “contemplate the frightful disaster which would be brought upon [British] India if full Dominion status… became the law governing India.” Showing his hand, he intoned that “[n]o-one can doubt that Dominion status… would be incompatible with the slightest semblance of Imperial authority over the races, peoples, and the States” of India (Commons Debates, November 20, 1931). This is not because there is no empire within Dominion. Churchill was amongst those who agreed that Canada and the other Dominions were “imperial nations.” Rather, Dominion status was incompatible with imperial authority here because India lacked a settler class with sufficient internal coherence to exert white dominance outside of London's direction and, as such, was denied Dominion status in defiance of home rule and national movements.

Indeed, the power of this drive toward settler empire was such that by the mid-twentieth century, British courts were actively seeking to put it back in the bottle, as they were forced to begin denying the saliency of constitutional whiteness in the face of global anti-colonial struggles. Among the most dramatic examples of this reversal on the principles of settler self-rule and constitutional whiteness was the decision by the British Parliament to assert its sovereign Crown prerogative against the apartheid regime of Southern Rhodesia. In 1965, the white supremacist government of Ian Smith issued the Unilateral Declaration of Independence, declaring Southern Rhodesia an independent state under the continued sovereignty of Elizabeth II. In effect, Smith's declaration claimed full Dominion status for Southern Rhodesia. The British Parliament and the JCPC expressed little by way of overt disdain for the actual apartheid system of white minority rule that the settlers sought to maintain in Southern Rhodesia, having granted precisely this arrangement to South Africa only thirty years prior and to Canada in 1867. Nevertheless, the fact that Smith's assertion of settler sovereignty came amid insurgent anti-colonial struggles in Africa, made clear the impossibility of Britain at once accepting white minority rule in Southern Rhodesia while still maintaining working relations with newly independent states on the continent. Thus, the Southern Rhodesia Act (1965), passed by the British Parliament only days after the Unilateral Declaration of Independence, enacted a vital reversal to the racial regime of explicit and constitutionalized white supremacism that had underpinned imperial reorganization since 1867 by, in the words of the JCPC (1968), making “it clear beyond doubt that the United Kingdom Parliament has resumed full power to legislate for Rhodesia and has removed from Rhodesia the power to legislate for itself.”

While by no means a simply analogous situation, it is worth noting in closing that during debates over the Canada Act (1982) (the British legislation that severed the remaining authority of the imperial parliament over the Dominion by enabling patriation of Canada's Constitution Act (1982)), several British MPs countenanced the possibility of amending the bill (which had been drafted by Canadian parliamentarians), or else withholding their consent. These possibilities arose over concerns that the legislation's treatment of Aboriginal rights might represent a dereliction of the British Parliament's duties toward Indigenous peoples. For instance, in a sentiment that echoes much of the discussion above, Labour MP Bruce George warned against discharging responsibility for Aboriginal title to the Canadian government through the Canada Act because:

Presciently, George later remarked in this same debate that the burgeoning Canadian extractive industry “clearly shows that the provinces have their eyes on the resources on and under the surface of Aboriginal lands. Should we pass this legislation, that will assist them in acquiring the land that they covet.” Even Ulster Unionist Party MP Enoch Powell (among the most infamous racists and white nationalists of mid-twentieth century Britain), noted that the wording on Aboriginal rights could “open a loophole to the meaning and interpretation of their rights being limited by subsequent judicial or legislative action.” The Constitution Act was, in George's estimation, the pathway toward a “process of paper genocide.” While the Canada Act was passed as written, Labour MP George Robertson summed it up as less a moral victory of democratization or a supposedly postcolonial future awaiting the settler polity, and more as a matter of realpolitik on the part of his Parliamentary colleagues: “One must be conscious not only of our past responsibility… to the Commonwealth, but of the fact that we are concerned about our future relationship with the sovereign Government of Canada and with its people… We must not be seen to be seeking to interfere with or to patronize their democratic rights or processes… Our attitude is, perhaps, ambivalent” (see Commons Debates, February 23, 1982).

The centrality of constitutional whiteness as one of the core tenets of the settler empire should draw the Canadian experience into closer comparative analysis, not only with the two other still extant white Dominions (Australia and New Zealand) but also with those jurisdictions in which constitutional whiteness and settler rule have been at least partly undone (such as in Kenya, Namibia, South Africa, Zambia, or Zimbabwe). A serious effort to understand the role of the Canadian example in the twentieth- and twenty-first century statecraft of settler polities and movements is vital work yet to be begun within Canadian political science.