From European Roots to Settler Soil: Adapting Foucault’s Biopolitics to Canadian Settler Colonialism

Abstract

This article examines the applicability of Michel Foucault’s biopolitical theory within the Canadian settler colonial context. Foucault’s concept of biopolitics, which describes the shift from sovereign power to the regulation of life and populations, is grounded in European historical contexts. In contrast, the Canadian settler colonial experience diverges significantly, necessitating a re-examination of biopolitics. The article argues that in Canada, the relationship between sovereignty, population, and territory does not follow the European model described by Foucault. Instead, Crown sovereignty established its control through legal mechanisms that defined ‘Indian’ status, displacing Indigenous territorialities and political structures. By analysing the evolution of ‘Indian’ status within the Indian Act (1985), the article highlights the centrality of law in constructing settler colonial biopolitics. This legal framework was used to manage and assimilate Indigenous populations, reflecting a unique biopolitical strategy aimed at creating a relationship to territory and population. The study contributes to a more specific understanding of biopolitics in settler colonial contexts, emphasizing the distinct role of law in these processes.

Introduction

The concept of biopolitics as articulated by Michel Foucault represents a paradigm shift in scholarly understandings of power and governance, with its emphasis on how power operates through the regulation and control of life, focusing on managing and optimizing the health of populations. In this regard, Foucault describes a transition from power manifested in the overt sovereign ‘right to kill’ to a more insidious form of power that operates through the administration of bodies and biological processes, which he termed ‘biopower’. This shift, he argued, marks a move from sovereign power’s direct control over territory to a more targeted management of populations, linked with the imperatives of capitalism and statecraft. However, while Foucault’s framework offers profound insights into the mechanisms of modern governance, it is deeply embedded within a European historical context. This article considers how biopolitics specifically within the Canadian settler colonial context diverges from Foucault’s analyses and the foundational dynamics of sovereignty, population and territory that he described. It suggests that Foucault’s biopolitical theory and its examination of power’s relation to life in Europe requires adjustments to adequately address the complexities of settler colonialism in Canada.

As shown in what follows, the application of Foucault’s concepts to settler colonial contexts encounter some important limitations. These limits become apparent when we consider how the imposition of colonial power in Canada did not happen through a historical transition from territorial sovereignty to biopolitical governance but instead involved an interplay of legal strategies aimed simultaneously at constituting Indigenous peoples as a ‘population’ and establishing Crown sovereignty's relation to territory. Unlike in the European context, therefore, where sovereign power was historically linked to territoriality and then evolved to govern populations, in the Canadian context Crown sovereignty needed to establish a relationship with both territory and population because of the presence of already existing Indigenous territorialities, which it also sought to displace. These relations were constituted using the law to create an ‘Indian’ population through the concept of ‘Indian status’ as a legal category. Therefore, instead of a shift in sovereignty from a territorial relation to a relation to the population that dwells upon it, which Foucault described, a supplemental or additional element was required to constitute a biopolitics in Canada's settler colonial context. This element is a legal action as embodied in the concept of Indian status and its development defined in the Indian Act (1985). The use of law in establishing settler colonial biopolitics was critical in Canada, which is something that Foucault's original studies did not address.

The ensuing sections of this article examine the application of Foucault’s biopolitical theory to the Canadian context, highlighting its limitations and proposing a re-situated understanding of settler colonial biopolitics. Through an analysis of the evolution of ‘Indian’ status, it will demonstrate the role of law in constituting the biopolitical relationships that underpin settler colonial governance in Canada. In doing so, it aims to contribute to a more precise understanding of biopolitics in settler colonial settings to better reflect the interplay of law, life and governance in these contexts. It is important to note that the analysis presented here only considers one settler colonial context, that of Canada. Further work in this regard would expand the analysis to other settler colonial contexts, such as Australia and New Zealand. However, doing so is beyond the scope of a single paper. In this sense, what follows is a first step in understanding the role of law in the biopolitics of settler colonialism. By re-orienting Foucault’s biopolitical lens to address the specificities of settler colonialism in Canada, this article seeks not only to broaden the theoretical landscape but also foster a more critical discourse on the role of law and the governance of life in settler colonial societies.

Biopolitics and Settler Colonial Conditions

Foucault’s works The History of Sexuality (1990), Society Must Be Defended (2003) and Security, Population, Territory (2007) provide a comprehensive exploration of biopolitics within a predominantly European context, arguing there was a shift from centralized sovereign power to a more diffuse form of governance termed ‘biopower’. As discussed below, for Foucault this transition marked a move from the stark and highly visible exercise of power through violence, epitomized by a Monarchical sovereign’s capacity to impose death, to a more intricate management of life, emphasizing the nurturing of various forms of life and the regulation of populations. Foucault’s analysis addressed the dynamics of this transformation, showing how the concept of ‘population’ emerges as a pivotal element linked to economic and political imperatives. Yet, the analysis of biopolitics he presented somewhat elides the dynamics of settler colonialism, especially in relation to Indigenous peoples and their territories.

As mentioned, Foucault's exploration of biopolitics is nearly wholly centred on the European context, delineating the nineteenth century as a critical era wherein biological aspects of life were systematically subjected to state governance. As he writes, ‘the most basic phenomena of the nineteenth century … [is] that the biological came under state control’ (Foucault, 2003: 239–40). His studies map out this shift from more traditional forms of sovereign power in Europe – exemplified in the power of Monarchs and encapsulated by the principle of ‘make die and let live’ – to the emergence of a paradigm of biopower, primarily concerned with the mandate to ‘make live, let die’ (Foucault, 1990: 141). The introduction of biopower shifts the nature of the sovereign’s power from spectacles of violence to a governmentality where overt, tangible and often brutal manifestations of violence adapt towards modalities where nurturing and managing various forms of life assume paramount importance. Biopower is articulated as a strategic endeavour aimed at sculpting and steering human existence, transcending mere dominion to foster the creation of subjects amenable to governance (see Stoler, 1995: 33). It thrives within realms of normative societal and personal regulation, masking its coercive underpinnings beneath a guise of ordinariness (Foucault, 1990: 133).

Importantly, the transition from monarchical sovereignty to biopower is not simply a move from one approach to governance to another. It involves a process where territorial sovereignty and biopower are ‘superimposed’ through mechanisms that simultaneously discipline individuals and manage populations (Foucault, 2003: 239). Foucault (2003) framed this process as the introduction of a ‘new right’ into politics, which ‘permeates’ sovereignty's ‘old right’ to make die and ‘leads to the state's control of the biological’ (pp. 240, 241). The intertwining of sovereign power and biopower is captured by the concept of biopolitics, which is a logic of governance that enfolds individual bodies as part of vast demographic groups (Swiffen, 2011). Furthermore, Foucault links biopolitics with the capitalist commodification of life, asserting its critical role in assimilating human entities into capitalist production and harmonizing demographic trends with economic imperatives (Foucault, 1990: 139–144). Central to this transformative logic is the emergence of ‘population’ as an object of power, imbued with significant economic and political value defined in terms of a resource, labour force, and balancing factor in the equation of growth and resource allocation (Foucault, 1990: 25; also “The Politics of Truth,” 217).

The next section discusses foundational aspects of Foucault’s discourse on biopolitics to highlight potential limitations when applied to settler colonial contexts. It traces the unique trajectory of European sovereignty that eventually arrived to create Canada’s settler colonial context, where the historical relationship with territory, characteristic of monarchical sovereignty, was absent. Additionally, while Foucault’s work laid the foundation for understanding biopolitics as a synthesis of sovereignty and biopower, it is also important to consider critical scholarship that has highlighted notable omissions in his analysis. One of the primary being the lack of consideration of colonialism and settler colonialism. ¹ Foucault (2003) only refers to colonization in passing, noting that strategies of colonial governments ‘boomerang’ back to Europe (p. 103). This suggestive but fleeting comment is his most substantive engagement with colonization in the context of biopolitics, and he does not mention settler colonialism at all. Thus, the next section also explores scholarship that has applied Foucault's theories to settler colonialism, identifying what these theories have addressed and what has yet to be considered.

Foucault's Limitations in Settler Colonial Contexts

As alluded to above, Foucault’s concepts are deeply rooted in the historical fabric of European society. This section explores limitations this presents when applied to the settler colonial context of Canada. Overall, the main issue with Foucault’s concepts stems from the strength of his method: they are profoundly historical and situated. For example, Foucault (2007) writes, ‘From the Middle Ages to the sixteenth century, sovereignty is not exercised on things, but first on a territory, and consequently on the subjects who inhabit it’ (p. 96, emphasis added). Similarly, in discussing a text on demography by ‘the first great theorist of what we would call biopolitics’, Foucault (2007) notes, ‘We again encounter the problem of the sovereign here, but the sovereign is no longer someone who exercises his power over a territory on the basis of a geographical localization of his political sovereignty’ (pp. 22, 23, emphasis added). These quotes demonstrate how Foucault (2007) confronted biopolitical sovereignty as a force that developed successively from ‘territorial system[s] of power founded on territorial domination defined by feudalism’ (p. 64) to ones in which sovereignty ‘becomes the architect of the disciplined space [and] the regulator of a milieu for the population’ (p. 29, emphasis added). There is a temporal element to this process. First, there is territorial sovereignty, which over time comes to target the population that lives on its territory. Constraints to the transferability of Foucault’s analysis lie in this assumed historicity. The specific historical horizons within which he was working structure a normative field for analysis in ways that obscure processes of settler colonialism when applied without attending to this difference.

First, Foucault’s understanding of sovereignty was not universal but corresponded to Monarchical sovereigns of Europe. The idea of territorial domination that informed his understanding of sovereignty as the power to make die as a precursor to biopolitics was defined by feudalism. His description of how this sovereignty evolved related to movements corresponding to historical shifts in feudal Europe. This specificity points to some limitations to the applicability of biopolitics beyond its original European milieu. The description of biopolitics as ‘power's hold over life’ assumes a history prior to biopolitics in which monarchical sovereigns controlled territories and related to populations upon them indirectly using violence (2003: 249–50). This form of territorial domination is ‘before’ biopolitics and is a force and set of relations through which it develops a direct relation to the population. Overall, therefore, Foucault's analysis of biopolitics considers how a relationship between sovereignty and population emerges out of a context where they are both already territorially localized in relation to each other. Biopolitics, in this context, represents a change in the relationship between power and life as the population emerges as an object of governance within a pre-existing relationship of sovereignty and territory. Populations are constituted from the individuals who dwell upon the territories of monarchical sovereigns. In essence, Foucault’s analysis assumes a territorial nomos where sovereignty and territory were already linked as the ground upon which biopolitics emerges.

However, in settler colonial contexts, the relation of sovereignty and territory involves a different historical relationship than in Feudal Europe. Most obviously, there is an absence of a pre-existing relation between monarchical sovereignty and territory and the individuals who dwell upon it. Instead of Monarchical sovereigns relating to territories and wielding the power to make individuals die, there is already a presence of Indigenous peoples’ own forms of political authority and relations to territory. These were external to European sovereignty and elements that needed to be displaced for Crown sovereignty to begin to establish a relation to the territory at all. ² Such Indigenous territorial relations formed a nomos that was distinct from and pre-existed the arrival of European sovereignty. This means that biopolitics was not something that could develop out of a relation of sovereignty and territory as it did in Europe. For biopolitics to take root, sovereignty needed to create a relation to territory, which it understood as depending on displacing Indigenous jurisdictions. This is different from how biopolitics emerged in Europe and this difference in normative fields constitutes the backdrop of settler colonial biopolitics within a distinct historical trajectory.

One of the ways the significance of this difference can be seen is in how Foucault understood race and racism as techniques of biopolitics, and in assessing how this framework can be applied to the treatment of Indigenous peoples in settler colonialism. Foucault’s analysis focused on the internal operation of liberal states and how racist logic makes it possible to regulate and divide a population upon a territory. Foucault associated biopower with race in so far as it is a technique used by states to manage populations through the creation of internal subgroups. In Society Must Be Defended, for example, Foucault (2003) argues that modern racism is a ‘technology of power’ used by states to sort individuals (p. 258). Further, he argues that racism serves to justify the persistence of the “death-function” of sovereignty “in the economy of biopower” (2003: 258). In other words, within biopolitics racism works as a justification for the death-bringing aspect of sovereignty, which in the context of biopower's emphasis on fostering life could otherwise be seem problematic or at least not useful. The justification works by making the death function appear to intersect with the fostering of life through the idea of purifying a population, that the death of others ‘makes one biologically stronger insofar as one is … an element in a unitary living plurality’ (2003: 258, 259). Racism, therefore, is part of the workings of a biopolitical state in so far as it is ‘obliged’ to use racism as a justification for the exercise of sovereign power, not only in the managing of a population through racial categories but also in the forms of violence used to exclude racialized identities (‘the elimination of races and the purification of the race’) (Foucault, 2003: 258).

This biopolitical framing of racism is a useful analytical framework for understanding some of the discrimination against minority groups and systemic racism within contemporary Western states. However, its applicability to settler colonial contexts is not as straightforward. Morgensen (2011) has pointed out that Foucault's analysis of racism tends to link biopolitics mainly to the phenomenon of excluding racialized groups from a population. This approach typically views biopower as focused on removing racialized identities and their representation in Western politics (i.e. the idea of ‘purifying’ the population). However, settler colonialism complicates the picture. Rather than purifying a settler population through excluding Indigenous identities, settler colonial biopolitics seeks to manage and absorb Indigenous peoples in a manner that consolidates and legitimizes the hegemony of settler governance. The process of managing Indigenous peoples is geared less to their exclusion and more towards their assimilation and absorption in ways that perpetuate settler-centric paradigms and undermine Indigenous jurisdiction and self-determination (Ellinghaus, 2009). Patrick Wolfe's analysis of settler colonialism suggests something similar (2006). He posits that biopolitics in settler colonial contexts contains a ‘logic of elimination’ inherent in settler assertions of sovereignty; however, such elimination is aimed at absorbing Indigenous peoples into the settler nation, not excluding them per se. ³ Taiaiake Alfred and Jeff Corntassel (2005) have also highlighted this function of biopower within Canadian settler colonialism. They argue the settler state's goal was not primarily to eradicate Indigenous individuals but to supplant their identities with a contrived ‘Aboriginal’ or ‘Indian’ identity, thereby making the identities of white and settler more pronounced. This interpretation of biopower in settler biopolitics surfaces a difference from Foucault's analysis of racism, specifically, the function of redefining Indigenous identity within a colonial matrix, and not purifying the population of Indigenous life through exclusion.

In a similar vein, Bonita Lawrence and Glen Coulthard have argued that Canada’s Indian Act tried to regulate and normalize control over Indigenous lives, not through exclusion but through altering individuals’ self-perception and relationships with community (Coulthard, 2014; Lawrence, 2003). Focussing on Australian and North American contexts, Jeffrey Monaghan, Adam Barker and Morgan Brigg further explore how settler colonial strategies aimed to assimilate Indigenous peoples under the guise of beneficial integration (Barker, 2009; Brigg, 2007; Monaghan, 2013). Surveillance of Indigenous groups, as discussed by Pauline Wakeham and others, was also justified through biopolitical goals of absorption, categorizing certain individuals as threats to assimilation (Dafnos et al., 2016; Wakeham, 2012). Fullenwieder (2018) contends that even the Indian Residential School Settlement Agreement (IRSSA) in Canada, although seemingly progressive, acts as a form of settler biopower by using ‘healing’ narratives to regulate Indigenous peoples under the guise of reconciliation. While acknowledging the role of Indigenous activism in its creation, Fullenwiender argues that the IRSSA curtailed Indigenous self-expression and transformed Indigenous trauma into a means of reinforcing settler state legitimacy. These contemporary and historical processes involve attempts to shape Indigenous identities to conform to settler colonialism, not exclude them as subpopulations. ⁴

In line with the work of the scholars above, I understand biopower as a process of incorporating Indigenous peoples within settler states, and of valuing Indigenous life, bodies and ways of being as defined within a settler framework. This indeed departs from Foucault's conception of race and racism as technologies of biopolitics. However, what these analyses do not address is the implications of this difference thsi makes for the underlying structure of biopolitics as a relation of territory, population and sovereignty. Thus, while critiques of Foucault’s theoretical framework largely revolve around the need to expand his analysis to the overlooked aspects of settler colonialism and account for its assimilative dimensions, what has yet to be investigated is whether the foundational constituents of the Canadian settler colonial context also diverge from Foucault’s European-centric model.

On the one hand, we know that settler colonial biopolitics did not involve the same successive historical structure that underpinned Foucault's original conception of biopolitics. Crown sovereignty’s relations to settler populations and Indigenous peoples cannot be traced from a history of territorial sovereignty. This absence represents an important divergence from Foucault’s analysis, which I argue necessitates a reconsideration of how his conceptualization of biopolitical relations align with the realities of settler colonialism. Biopolitics in settler colonialism did not involve a shift in sovereignty's relation from territory to the population, which depended on sovereignties having a relation to territory prior to taking the population as an object of governance. Instead, it required the constitution of a relation to a population in the absence of a prior relation to territory, as well as a relation to territory itself. In settler colonial settings, instead of shifting from a geographic grounding to include a relation to a population, some other operations must be required. On the other hand, Foucault’s discussion of the biopolitical function of race and racism as technologies of population division and management do not fully capture settler colonial policies of assimilation and absorption. These processes involve sovereignty relating to territory and population differently than in Europe, and in ways that take into account Indigenous normative fields. Therefore, there are logical and empirical reasons why the relation between population, sovereignty and territory must be different from what Foucault described. In the Canadian context, we can see that it involves legal and juridical processes. In fact, the role of law emerges as a central component.

The next section explores the operation of biopower within Canada’s settler colonial context, emphasizing the role of law in the triad of territory, population and sovereignty. Biopolitics in this context emerges not from a pre-existing sovereignty intermingling with biopower but from the arrival of Crown sovereignty on Indigenous territory and the creation of a population as an object of governance. These developments are more about the interdependence of settlers on Indigenous identities than the taking up a population as an object of governance. The role of law is key to these processes. The Canadian situation illustrates how law was fundamental to both the establishment of sovereignty’s relationship to territory and its efforts to constitute a population. This suggests the unique relations of sovereignty, population and territory in settler colonial biopolitics, where law is a necessary component used for creating the connections among sovereignty, population and territory that were not provided by history. In what follows, I look at the role of law in securing settler sovereignty and territoriality in Canada as manifested in the evolution of ‘Indian status’ in the Indian Act. This represents a modest attempt at a genealogy of biopower in settler colonialism in Canada by tracking how law’s historical practices adapted to the specificities of European settlement and the role of law in the emergence of settler colonial biopolitics in that locality.

Biopolitics Through Law: Creating Relations via Indian Status

In Canada, the concept of ‘Indian status’ was established through a series of legislative acts culminating in the Indian Act, first passed in 1876 and subsequently revised multiple times. As a legal category, Indian status represents a pivotal colonial mechanism by which Crown sovereignty sought to try to relate to Indigenous peoples as a population and redefine their relation to territory. Through the evolving legal status, the government also attempted create entryways to assimilation, informed by racial biopolitics and the ambition to establish territorial control. In essence, Indian status aimed to displace Indigenous forms of citizenship and mould Indigenous relations to land in ways that deferred to the Crown’s territorial sovereignty, attempting to eradicate and supplant Indigenous political authority and jurisdiction. However, the legal construct also inadvertently became a site of significant resistance and resurgence, which defied the assimilationist objectives of the Canadian settler state. Far from accepting the legal identity and territorial restrictions the came with Indian status, Indigenous peoples engaged in recursive movements of resistance that challenged and co-opted the Crown’s legal categories. Consequently, the evolution of Indian status has been marked by internal inconsistencies and expansions. This dynamic of resistance and power is consistent with Foucault’s general conception of power, and throughout these events the role of law in the biopolitics of settler colonialism is evident.

The Indian Act exists today and still represents a cornerstone of federal law aimed at regulating ‘Indian affairs’ within Canada’s constitutional framework. This Act was initially conceived as an instrument of settler colonial governance, deriving its authority from interpretations of the British Imperial Crown’s powers by politicians, judiciary and administrative officials. Notably, these interpretations excluded Indigenous perspectives on what their relationship was to the Crown and the meaning of the treaties that had been signed. Such one-sided interpretations led the settler state to endow itself with dominion over ‘Indians’, thereby attempting to caste Indigenous peoples into a dependent, almost ward-like relationship (The Constitution Act, 1982, s. 91(24)). Central to this relationship was the concept of ‘Indian status’, a legal marker for determining an individual’s recognition as an ‘Indian’ under the Indian Act and defining their relationship with the settler state and relation to land. To this end, it defined Indigenous political units as ‘bands’ and tried to take jurisdiction over territory by defining areas set aside for First Nations – known as reserves. The meaning of these categories did not take into account Indigenous perspectives. Communities were divided up into distinct bands and reserve lands often did not correspond to traditional territories. The Indian Act also set out the structure of band governance, including imposing election processes, defining the powers of chiefs and band councils, as well as controlling education and welfare for ‘Indians’. It also governed many aspects of daily land use on reserves, including whether or not Indigenous people could sell or lease land, the granting of right of ways and easements, whether pool halls and cinemas could be built, and more. Thus, the Indian Act aimed to radically displace Indigenous peoples’ own political practices and jurisdictions. At the same time, the minutia of its regulation reflects the deployment of biopower through law, as Crown sovereignty attempted to control and manage Indigenous life as well as the territory upon which it lived.

The creation of Indian status was not the product of a singular legislative action. It developed progressively through numerous statutes across the nineteenth century and was eventually consolidated in the Indian Act. However, the dual purpose of constituting a population and a relation to territory is evident from the outset. The inaugural definition of Indian status was established by the Act for the Better Protection of Lands and Property of the Indians enacted in 1850, which defined an ‘Indian’ as any person ‘of Indian blood’ belonging to any ‘body or tribe of Indians’ (S.P.C., 1850, c. 42, s. V). The intent of this initial definition was specifically for determining eligibility for residence on reserve lands. ⁵ From a biopolitical perspective, the definition was racialized, but it also defined a population and equally defined territorial affiliations. As the nineteenth century progressed, colonial authorities began developing increasingly aggressive assimilation policies, and used Indian status as a tool to manage the population and relations to territory in more complex and comprehensive ways. For instance, at various points the Indian Act restricted Indigenous peoples’ forms of association and mobility and linked the notion of an ‘Indian’ community to specific geographic localities delimited by the settler state (Starblanket, 2018: 6). This included provisions to reduce and absorb the ‘Indian’ population by targeting Indigenous women in discriminatory ways. For example, the enfranchisement policy introduced in the 1857 Gradual Civilization Act offered males with Indian status 50 acres of land and a share of their band's annuities for renouncing their Indian status and becoming Canadian citizens (Giokas and Groves, 2002: 53–4). ⁶ The 1869 Gradual Enfranchisement Act (S.C. 1869) furthered this approach, making it so that women with Indian status who married non-‘Indian’ men could be enfranchized, leading to the loss of their status, band membership and right to live on their reserve (S.C., 1869, c. 6).

The Indian Act of 1876 consolidated this earlier legislation and further intensified assimilation policies targeting the ‘Indian’ population (Giokas and Groves, 2002: 54). In 1920, it tightened the definition of Indian status, now defining it as ‘any male person of Indian blood’ as well as his wife and children (S.C., 1919-20, c. 26, s. 2. Emphasis added). New provisions were added that specified women would automatically lose their Indian status upon marriage to a man without said status. This policy served to disconnect many Indigenous women and children from their communities (Simpson, 2007: 74). From a biopolitical perspective, these provisions aligned with the settler colonial policy of using demographic elements to absorb Indigenous individuals into the settler politic. Importantly, however, this does not fully fit Foucault's account of racism as a technique of biopolitics because it was not about dividing off and excluding racial identities but of eliminating the ‘Indian’ population – a creature of Crown sovereignty's own legal action – through biological and cultural absorption. The absorbing assimilationist objectives were expressed in 1920 by Duncan Campbell Scott, who served as the Deputy Superintendent-General of the Department of Indian Affairs. Scott advocated for the compulsory enfranchisement of Indigenous peoples, which he believed could be accelerated through the ‘introduction of a superior strain of blood’ (Leslie, 2002: 25; Titley, 1992: 34). In this context, the law functioned as a key biopolitical tool, both constituting a population and its relation to territory, and subsequently attempting to absorb and control that population in line with colonial objectives.

It is relevant to note that Canada's Indian administrative regime was initially envisioned by the state as a temporary infrastructure that would disappear as Canada’s assimilation policies achieved their goal of absorption (Nichols, 2018: 8, 9). However, as the twentieth century progressed, it became evident that the policies were not producing the anticipated results. Contrary to the goals of assimilation, the Indigenous population grew during the 1930s and 1940s (Kulchyski, 1993: 25). There also continued to be significant resistance among Indigenous peoples towards enfranchisement, with many choosing to preserve their Indian status. During this period Indigenous leaders organized national assemblies in Canada's capital city of Ottawa in 1943 and 1944 to voice grievances and assert their rights. These gatherings led to the establishment of the North American Indian Brotherhood, a crucial national political organization, and prompted an investigation into the government’s dealings with Indigenous peoples (Shewell, 1999: 230). At the same time, a significant surge in public interest in Indigenous matters put a spotlight on the oppressive nature of the Indian Act (Tobias, 1983: 51). This heightened public awareness can be in large part attributed to the endeavours of Indigenous political activists across Canada (Kulchyski, 1993: 25; Shewell, 1999). These dynamics of resistance illustrate Foucault’s concept of power, as Indigenous activism not only challenged but re-shaped the mechanisms of settler colonial governance. However, it also shows the centrality of the role of law in constituting populations and relations to territory, as it was the nodal point for both the creation of assimilation policies and the subsequent resistance movements.

As the mid-twentieth century approached, Canada’s growing ‘Indian’ population troubled the government. However, it also became less racially envisioned and more understood as a legal construct that included individuals, regardless of Indigenous lineage understood in terms of biopolitical racism. Thomas MacInnes, Secretary of the Department of Indian Affairs, underscored this understanding in a 1946 speech to the Canadian Political Science Association, noting the ‘increasing legal Indian population with decreasing Indian blood’ (MacInnes cited in Briggs, 2019: 425). ⁷ Further archival sources show that government officials perceived ‘legal Indians who retain their status because of paternal descent, but who actually have lost all trace of Indian blood’ as primary impediments to assimilationist objectives (Letter from the Director of Indian Affairs, 1943). The Deputy Minister of Indian Affairs specifically characterized such individuals as ‘agitators’ and ‘trouble-makers’, who ‘are often the most prominent among the leaders of movements in support of alleged ancient Indian rights and other claims’ (LAC reference; see also Shewell, 1999: 219). These comments underscore an emerging disaggregation of legal identity and race within the settler colonial biopolitics in Canada. This partial decoupling evades the framework of biopolitical racism as described by Foucault. While critics have noted the racialized aspects of Indian status (e.g. Dietrich, 2017) they have not been as attentive to the way the legal category shifts away from a race-based definition and what this means for the importance of law in the underlying structure of biopolitics.

In 1951, this emerging disaggregation became more decisive when the Indian Act was amended to fundamentally alter the basis of Indian status recognition. ⁸ A new definition was introduced at the same time as the government tried to centralize control over the composition of this population. This new definition saw the reference to blood completely removed and replaced by the concept of ‘registration’ (Indian Act S.C., 1951, c. 29, (12(1)(b))). Having Indian status now meant being eligible for inclusion in the newly created Indian Register. The Register represented the first attempt by the settler colonial state to centrally control the ‘Indian’ population. This was a departure from the previous system where individual band councils and local Indian Agents managed membership records. Due to previous sexist enfranchisement and marrying out provisions, many Indigenous women and their children had lost Indian status over generations and were left off the centralized Register. The 1951 amendments further compounded this issue by intensifying sex discrimination with the so-called double mother rule, stipulating that a person would lose Indian status at 21 if their mother and grandmother had obtained status through marriage (Giokas and Groves, 2002: 57). The biopolitical logic of these provisions remained the same: to address growing ‘Indian’ population through absorption. However, it was refashioned from a racial basis conceived through blood to a legal status created by the Indian Act itself. ‘Indianness’ was no longer legally conceived as a quality of Indigenous bodies but as a form of inheritable property defined in settler colonial law.

Once again, however, these changes did not have their intended effect and law continued to be a nodal point for resistance and the central mechanism for the government to maintain its relationship to population and territory. Indigenous women began launching court cases to challenge the sexist provisions in the Indian Act. They availed themselves of the settler courts despite opposition from their band council governments and within their communities (Simpson, 2007: 72). In 1971, Jeannette Lavell brought an action claiming the Indian Act violated the equality clause in the 1960 Canadian Bill of Rights. This case was linked to that of Yvonne Bedard, who lost her Indian status and the right to inherit reserve land when she married a non-status man (Bedard v Isaac et al. 1971, 601, ON SC). The Supreme Court of Canada ruled against the women and upheld the marrying out provision, stating that Indigenous women were not discriminated against by laws that treated them differently from Indigenous men because they gained equal rights as Canadian citizens upon being involuntarily stripped of their Indian status. It also stated that the Federal Government had the power to govern Indian affairs, a power that could not be superseded by a statute, even one enshrining civil rights (Attorney General of Canada v. Lavell, [1974] S.C.R. 1349).

Following this decision, Sandra Lovelace launched a challenge through international law to her community band council's decision to deny female members who married out the right to acquire property on the reserve. Lovelace turned to the UN Human Rights Committee, arguing that Canada's law violated the International Covenant on Civil and Political Rights. In 1981, the UNHRC agreed, finding Canada violated the Covenant (Bayefsky, 1983). This ruling motivated the Canadian Government to begin partially addressing sex discrimination in the Indian Act, starting with Bill C-31 in 1987. This bill ended the marrying out and double-mother rules and abolished enfranchisement, resulting in thousands of women and their children having their Indian status reinstated. However, Bill C-31 also gave band councils the authority to create their own membership codes, separate from the federal Indian Registry. In some communities, band councils chose to reject the right of women to be reinstated by excluding them from the community; some even argued that it was now their tradition to exclude women who married out (see Green, 2004; see also Barker, 2008; Coulthard, 2014: 79–104; Lawrence, 2003; Palmater, 2011; Simpson, 2014). ⁹

Moreover, Bill C-31 still continued to treat males and females differently, and in ways that deviated from biopolitical racist ideas of blood-based identity. For individuals with one parent with Indian status, their ability to pass on their status differed depending on whether that parent was male or female. In 1989, Sharon McIvor launched a challenge to the new provisions. She had lost her status when she married a non-Indian man but was reinstated following Bill C-31. However, her children were still more limited in their ability to pass on their status than their cousins, who were the children of McIvor's brother (McIvor v. Canada, 2009). In 2009, the British Columbia Court of Appeal (BCCA) ordered Canada to eliminate discrimination against women entirely from the Indian Act. The Government's response was the Gender Equity in Indian Registration Act or Bill C-3 in 2011, which established additional categories of Indian status, recognizing individuals whose grandmothers had been enfranchised (Giokas and Groves, 2002: 57). Over 174,500 individuals became newly registered under Bill C-3.

Nonetheless, sex discrimination persisted, as the new provisions only applied to individuals born after 1951, which meant that women born before this cut-off were still more limited in their ability to pass on Indian status compared to their male counterparts. ¹⁰ In 2015, Canada faced another legal challenge when Indigenous women won the Descheneaux case in the Superior Court of Quebec (Descheneaux v Canada 2015). The court’s decision directed the Federal Government to fully eliminate all sex-based inequities in regards to Indian status. This led to the enactment of Bill S-3, which came into effect in 2019 (Bill S-3, 2017). This bill ensured that grandchildren and great-grandchildren of women who lost status due to previous discriminatory practices were now entitled to registration. Additionally, it guaranteed that female children born out of wedlock and their descendants were eligible for registration. This amendment allowed all descendants of women who were either removed from band lists or not considered to have Indian status due to marriage (dating all the way back to the 1869 Gradual Enfranchisement Act) to claim status. As a result, between 750,000 and 1.3 million more people in Canada are now entitled to registration under Bill S-3 (Crown-Indigenous Relations and Northern Affairs Canada, 2018).

This evolution of ‘Indian status’ as a legal category defies some of the assumptions of the biopolitical framework described by Foucault. First, early legislation linked Indian status to both racial and territorial criteria. The ‘Indian’ population was not defined out of prior relation to territorial sovereignty. In fact, the legal category was used by the Crown to try to displace Indigenous peoples’ existing territorial relations, while tying their legal identity to Crown sovereignty. In this sense, settler biopolitics needed law to create a population and a relation to territory. Second, the legal mechanisms that did this were based on a logic of absorption more than racial purification. Moreover, this use of law resulted in a separation of racial and legal definitions of Indian status, leading to amendments like Bill C-3 and S-3 that expanded the criteria for status eligibility. The dynamics of power and resistance that emerged in relation to the legal category are in line with Foucault in the sense that power and resistance are always connected; however, in the Canadian settler colonial context law is the anchor point for these relations and the element around which they circulate.

Creating Relations to Populations and Territory Through Law

The analysis presented above of the biopolitics of Indian status in Canada reveals how settler colonial biopolitics diverges from the framework of biopolitics as described by Foucault, specifically regarding the role of law and the historically successive relationship between sovereignty and biopolitics. In the Canadian context, Indigenous peoples were not dwelling on the territories of monarchical sovereigns who then took them up as a population and object of governance. Instead, Indigenous peoples were dwelling on their own territories with their own sovereignties. They could not be taken up as a population in relation to Crown sovereignty through the successive logic observed in European biopolitics because there was no historical background of geographical localization to link sovereignty, population and territory. Without such a shared history, the role of law became central. Crown sovereignty needed to establish a relationship with the territory just as much as it needed to establish a relation to the population. The role of law became central to mediating these relationships and facilitating the biopolitical project of settler colonialism. Thus, unlike Foucault’s account of biopolitics, where the role of law is not central, the biopolitics of Indian status in Canada underscores how law was instrumental in constructing and managing both population and territory, reflecting a distinct biopolitical strategy within a settler colonial context.

The use of law to define a population in relation to Crown sovereignty also does not squarely fit with the biopolitical techniques of racism that Foucault described. To constitute the relation to territory, Crown sovereignty simultaneously used legal tools and relations of biopower to constitute an ‘Indian’ population. However, at stake was not the purification of a population upon a territory conceived in terms of the exclusion of racialized identities, but of creating an ‘Indian’ population as well as a relation to territory, and then absorbing that population into the settler body politic. While race was embedded in the original definition of Indian status, so was a relation to territory. Subsequently, the association with race began to be displaced to some extent with marrying out provisions that denied individuals Indian status regardless of blood ties. The link to biopolitical conceptions of race became even more distant as the reference to blood was dropped explicitly from the definition of Indian status, which came to figure almost as a form of inherited property.

This form of settler colonial biopolitics emerged in conflict with Indigenous territorialities and jurisdictions. Thus, law was also a key tool used to constitute a population out of diverse peoples from the perspective of the Crown, and establish its relation to territory by displacing Indigenous political and legal fields. The relation to the population is constituted through a legal relation of diminished personhood that also involved imposing settler definitions of ctizenship and politics. Thus, whereas Foucault describes how sovereignty shifts from a primary relation to territory to governing the population, in Canadian settler colonialism, the legal concept of ‘Indian’ was needed to constitute both a population and a relation to territory from the perspective of Crown sovereignty.

There is a tendency in applications of Foucault’s work to see the role of law as merely an extension of sovereignty, and to view biopower as a force external to life that is applied to life. From such a perspective, biopolitics appears as something imposed on a population. However, this interpretation holds true only when the relation to territory already provides a link between sovereignty and population. While this framing does capture some fundamental aspects of settler colonial biopolitics, it does not present the complete picture. As the analysis of the Indian Act demonstrates, assimilation was part of the logic underpinning Indian status as a legal category, but so was displacing Indigenous territoriality and constituting a population consistent with settler meanings. Law, in this context, operated as an additional term in the sovereignty, population territory configuration Foucault described.

Conclusion

Foucault’s analysis of biopolitics, while insightful in understanding European dynamics of biopolitics encounters limitations when applied to settler colonial contexts. This paper considered the context of Canada as a specific case. While Foucault’s approach implies a succession from territorial sovereignty to a relation of governance with the population, this trajectory is not evident in settler colonialism in Canada. The analysis above shows how the biopolitics of settler colonialism in Canada, as seen through the Indian Act, created the ‘Indian’ population through legal categorization, not pre-existing territorial ties. This process involved defining Indian status initially on racial lines while simultaneously attempting to disrupt Indigenous territorial relations. Unlike Foucault’s analysis of biopolitical racism as purification, the category of Indian status was geared to absorption, which failed due in large measure to Indigenous resistance.

This unique settler colonial biopolitics does not follow Foucault’s territory-to-population model. It instead emerges from a lack of shared territorial history. Within this lack, law makes possible the unique dynamics of settler colonialism by creating legal identities that constitute a population while also establishing relations to territory that sustain colonial governance. Whereas Indigenous peoples possess their own legal systems and polities outside the European notion of territorial sovereignty, the settler state sought to construct the ‘Indian’ population in opposition to them. This dynamic, where relations to a population and to territory are constituted through law is essential to settler colonial biopolitics. Thus, the Canadian experience presents a distinctive divergence from Foucault’s biopolitical framework and calls for a situated understanding of biopolitics and its legal systems, particularly without a shared territorial historical backdrop. In settler colonial biopolitics in Canada, the relationships between sovereignty, population and territory emerge not from a successive territorial history but through law.