Indian Act

The Indian Act ("An Act respecting Indians"), is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves.[1][2] First passed in 1876 and still in force with amendments, it is the primary document which governs how the Canadian state interacts with the 614 First Nation bands in Canada and their members. Throughout its long history the Act has been an ongoing source of controversy and has been interpreted in many ways by both Aboriginal and non-Aboriginal Canadians. The legislation has been amended many times, including "over twenty major changes" made by 2002.[3]

The act is very wide-ranging in scope, covering governance, land use, healthcare, education, and more on Indian reserves. Notably, the original Indian Act does two things affecting all Aboriginal people:

The act's existence is necessitated by the fact that First Nations (historically called "Indians") relate differently to the state because of inherited legal arrangements such as the Royal Proclamation of 1763 and various treaties, and because Canada's constitution specifically assigns Native issues to the federal, rather than provincial, governments, by the terms of Section 91(24) of the Constitution Act, 1867. The Indian Act replaces any laws on the topic passed by a local legislature before a province joined Canadian Confederation, creating a definitive national policy on the subject. The Indian Act is not a treaty; it is Canada's legal response to the treaties. Nevertheless, its unilateral nature, imposed on indigenous peoples by the Canadian government in contrast to the treaties, is itself a source of discontent among Native peoples in Canada.

Original rationale and purpose

"The great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion as speedily as they are fit to change."

John A Macdonald, 1887[5]

The Indian Act was first passed in 1876 as a consolidation of various laws concerning indigenous peoples enacted by the separate colonies of British North America prior to Canadian Confederation, most notably the Gradual Civilization Act passed by Upper Canada's legislature in 1857 and the Gradual Enfranchisement Act of 1869.[5] The Indian Act was passed by the Parliament of Canada under the provisions of Section 91(24) of the Constitution Act, 1867, which provides Canada's federal government exclusive authority to govern in relation to "Indians and Lands Reserved for Indians". It was an attempt to codify rights promised to Native peoples by George III in the Royal Proclamation of 1763, while at the same time enforcing Euro-Canadian standards of "civilization". The purpose of the act, as stated by its drafters, was to administer Indian affairs in such a way that Indian people would feel compelled to renounce their Indian status and join Canadian civilization as full members: a process called enfranchisement.

The idea of enfranchisement predated the 1876 version of Indian Act and survived in some form until 1985. Upon the introduction in 1857 by the Taché-Macdonald administration of the Gradual Civilization Act and until 1961, the enfranchisement process was compulsory for men of age 21 able to read and write English.[6]

Reserves, under this legislation, were islands within Canada to which were attached a different set of rights. "Enfranchisement" derives from the idea of "franchise", which has gradually been degraded as "vote". Canadians with the franchise were allowed to vote for representatives, were expected to pay taxes and lived "off-reserve". By contrast, groups of people who lived on a reserve were subject to a different set of rights and obligations. One needed to descend from an Indian to be allowed to live on a reserve.

The tenure of land in a reserve was limited to the collective, or tribe, by virtue of a Crown protectorate. Interactions between enfranchised citizens and Indians were subject to strict controls; for example, the enfranchised were forbidden from the Royal Proclamation of 1763 onwards to traffic in alcohol or land with Indians. It was hoped through means of fiduciary duty voluntarily taken up by the Crown to preserve the Indian identity, but this was later vitiated by the compulsory enfranchisement scheme of the Gradual Civilization Act of 1857. The 1985 amendment to the Indian Act extinguished the idea of enfranchisement.

Definitions

"Reserve"

Main article: Indian reserve

Under the section entitled "Reserves" in the Indian Act, it is stated that reserves are "to be held for use and benefit of Indians.[4]

18. (1) "Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.

Marginal note:Use of reserves for schools, etc."

— R.S., c. I-6, s. 18.Indian Act[4]
18. (2) "The Minister may authorize the use of lands in a reserve for the purpose of Indian schools, the administration of Indian affairs, Indian burial grounds, Indian health projects or, with the consent of the council of the band, for any other purpose for the general welfare of the band, and may take any lands in a reserve required for those purposes, but where an individual Indian, immediately prior to the taking, was entitled to the possession of those lands, compensation for that use shall be paid to the Indian, in such amount as may be agreed between the Indian and the Minister, or, failing agreement, as may be determined in such manner as the Minister may direct."
— DIANA, R.S., c. I-6, s. 18. Indian Act

"Band"

Main article: Band government

In the Indian Act, updated to April 2013, the term "band",[4]

"means a body of Indians (a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, (b) for whose use and benefit in common, moneys are held by Her Majesty, or (c) declared by the Governor in Council to be a band for the purposes of this Act."
— Indian Act

"Indian"

Main article: Indian Register

Fundamental to Canada's ability to interact with First Nations peoples is the question of defining who they are (e.g. who are the "Indians" of the Indian Act?), and this aspect of the legislation has been an ongoing source of controversy throughout its history. Not all people who self-identify as Aboriginal Canadians are considered "Indians" under the terms of the act. Only those on the official Indian Register maintained by the federal government (or a local "band list" in some cases) are Status Indians, subject to the full legal benefits and restrictions of the Indian Act. Notably this excludes Métis people, Inuit people, and so-called Non-Status Indians. Various amendments and court decisions have repeatedly altered the rules regarding who is eligible for Indian Status. Many bands now maintain their own band lists.

Loss of status prior to 1985 amendments

Though people accepted into band membership under band rules may not be status Indians, Bill C-31 clarified that various sections of the Indian Act would apply to such members. The sections in question are those relating to community life (e.g., land holdings). Sections relating to Indians (Aboriginal people) as individuals (in this case, wills and taxation of personal property) were not included. Prior to 1985, Indians could lose status in a variety of ways including the following:

These provisions interfered with the matrilineal cultures of many First Nations, whereby children were born to the mother's clan and people, and gained their status in the tribe from her family. Often property and hereditary leadership passed through the maternal line.

In Attorney General of Canada v. Lavell (1974), these laws were upheld despite arguments made under the Canadian Bill of Rights. The Indian Act was amended in 1985 (Bill C-31)[4] to restore status to people who had lost it in one of these ways, and to their children.

Discriminatory definition issues

Bonita Lawrence (2003)[8] discusses a feminist position on the relationship between federal definition and Indian identity in Canada. Until 1985, section 12(1)(b) of the act "discriminated against Indian women by stripping them and their descendants of their Indian status if they married a man without Indian status."[9] Under Section 12(2) of the act, "'illegitimate' children of status Indian women could also lose status if the alleged father was known not to be a status Indian and if the child's status as an Indian was "protested" by the Indian agent." Further, Section 12(1)(a)(iv), which Lawrence calls the "double mother" clause, "removed status from children when they reached the age of 21 if their mother and paternal grandmother did not have status before marriage." Much of the discrimination stems from the Indian Act amendments and modifications in 1951.

She discusses the struggles of Jeannette Corbiere Lavell and Yvonne Bédard in the early 1970s, two women who had both lost their Indian status for marrying white men. The Supreme Court of Canada ruled that the Indian Act was not discriminatory, as the pair gained the legal rights of white women at the same time they lost the status of Indian women, in a parallel to R. v. Drybones (supra). In 1981, Sandra Lovelace, a Maliseet woman from western New Brunswick forced the issue by taking her case to the United Nations Human Rights Committee, contending that she should not have to lose her own status by her marriage. The Canadian law was amended in 1985.[9]

Policies enacted via the Indian Act

Gender discrimination

In the 1951 amendments to the Indian Act, section 12(1)(b) initiated that Aboriginal women who married a person who is not Indian (Aboriginal) are not entitled to legalistration under Canadian law.[10] Subjecting Aboriginal female status to that of their father or husband, the Canadian government applied gender bias requirements to the legal status of Aboriginal peoples in Canada. Without legal status, Aboriginal women are unable to access treaty benefits, practice inherent rights to live on their reserve, inherit family property or be buried on reserve with ancestors.[10] Restricted from access to their native community, Aboriginal women without legal status were unable to participate in ceremonies and rituals on their traditional land. However, these conditions did not apply to Aboriginal men who married non-status women. Men who married non-status women were able to keep their status.[10] Section 12, subsection 1(b) of the Indian Act worked to disadvantage the position of Aboriginal women and can be considered an attempt to demolish Aboriginal families and alienate Aboriginal women from their land. Inflicting gender discriminatory laws the Canadian government marginalized and disadvantaged Aboriginal women. Section 12 gained the attention of female movements contributing to a variety of proposals for reform.[11] Amended in 1985 through the introduction of Bill C-31 (Gender Equality in Indian Registration Act), section 12 was removed and status was reinstated to those affected.

As stated in Bill C-31 Aboriginal women who lost their status as a result of marrying to a man without legal Aboriginal status can apply for reinstatement and regain status under section 6(1).[12] However, the children of reinstated women are subject to registration under section 6(2).[11] Aboriginal peoples registered under section 6(2) are unable to transmit status to future generations.[12] Thus, by reinstating women under section 6 of the Indian Act the Canadian government failed to completely remove gender discrimination from its legislation. Since, the children of reinstated Aboriginal women have restrictions on their legal status, Aboriginal men continue to hold greater quality of legal status then women. Bill C-31 amendments create a new system for classifying legal Aboriginal status that maintains gender discrimination.[12] Patriarchy continued to be inflicted on Aboriginal peoples in Canada even after the 1985 Indian Act amendments. Female movements expressed that Bill C-31 failed to eliminate gender discrimination from the Indian act and in 2010 the Canadian government introduced Bill C-3 (Act to Promote Gender Equality in Indian Registration).[12]

Bill C-3 amendments to the Indian Act permitted Aboriginal women reinstated under section 6(2) to be eligible for 6(1) status.[13] Creating subsection (1)(c.1) registration, reinstated Aboriginal women could only be eligible for registration under 6(1) if they had non-status children.[13] Since it was the children of Aboriginal women who had been affected by restrictions under section 6(2) legal registration, only women who had children were eligible to be registered under section 6(1) of the Indian Act. The Canadian government failed to eliminate gender discrimination from the Indian Act with the implementation of Bill C-3. Continuing to place restrictions on the status of reinstated women, Bill C-3 does not remove gender bias provisions from the Indian Act.

Residential schools

An 1884 amendment to the Act mandated education for Indian children, to bring them to read and write English. The now infamous Indian Residential School system subjected children to forced conversions, sickness, abuse and what has been described as an attempt at Genocide by the recent Truth and Reconciliation Commission. The Canadian Indian residential school system can be seen as an attempt to force Indians off their lands, sever family ties and diminish traditional Indian culture, for which on 11 June 2008 the government of Canada apologized.[14]

Bans on religious ceremonies ("Potlatch Law")

In 1884 an amendment to the Indian Act banned the Potlach ceremony of the West Coast peoples. The Potlatch ban drove traditional ceremonies underground. A similar amendment in 1895 banned the Sun Dance of the Plains peoples, which was not lifted until 1951.

Restriction on access to the courts

A 1927 amendment (Section 141) forbid any Indian or band from retaining a lawyer for the purpose of making a claim against Canada, and further forbid them from raising money to retain a lawyer, on punishment of imprisonment.[15][16]

Tax exemption

Section 87 exempts Indians from paying taxes on two types of property: (a) the interest of an Indian or a band in reserve lands or surrendered lands; and (b) the personal property of an Indian or a band situated on a reserve[17]

Relation to the Constitution

The rights exclusive to Indians in the Indian Act [4] are beyond legal challenge under the Constitution Act, 1982. Section 25 of the Constitution Act, 1982 provides that the Canadian Charter of Rights and Freedoms shall not be interpreted as negating Aboriginal, treaty or other rights of Canada's Aboriginal peoples.

Section 88

Section 88 of the Indian Act states that provincial laws may affect Aboriginals if they are of "general application", meaning that they affect other people as well as Aboriginals. Hence, provincial laws are incorporated into federal law, since otherwise the provincial laws would be unconstitutional.[18] In Kruger and al. v. The Queen (1978), the Supreme Court found that provincial laws with a more significant impact on Aboriginals than other people can be upheld, as "There are few laws which have a uniform impact."

Constitutional scholar Peter Hogg argues that in Dick v. The Queen (1985), the Supreme Court "changed its mind about the scope of s. 88." Section 88 could now protect provincial laws relating to primary Aboriginal issues and even limiting Aboriginal rights.[19]

History of proposed and actual changes

List of precursors and amendments

Pre-Confederation

Post-Confederation

Attempts to repeal or replace

Numerous failed attempts have been made by Canadian parliamentarians to repeal or replace the Indian Act without success. Those changes that have been made have been piecemeal reforms, rather than sweeping revisions.

Failed major changes

Opt-outs

Since the 1990s, several pieces of legislation have been passed allowing individual bands to opt out of a particular section of the Indian Act if an agreement is signed between the band and the government putting alternative measures in place. These are called "Sectoral Legislative Arrangements". The band remains subject to the Indian Act except for the section in question.

Case law

The 1895 amendment of the Indian Act (Section 114) criminalized many Aboriginal ceremonies, which resulted in the arrest and conviction of numerous Aboriginal people for practising their basic traditions.[32] These arrests were based on Aboriginal participation in festivals, dances and ceremonies that involved the wounding of animals or humans, or the giving away of money or goods. The Dakota people (Sioux) who settled in Oak River, Manitoba, in 1875 were known to conduct "give-away dances", also known as the "grass dance".[33] The dance ceremony involved the giving away and exchange of blankets and horses; thus it breached Section 114 of the Indian Act.[26] As a result, Wanduta, an elder of the Dakota community, was sentenced to four months of hard labour and imprisonment on January 26, 1903.[34]

According to Canadian historian Constance Backhouse, the Aboriginal "give-away dances" were ceremonies more commonly known as potlatches that connected entire communities politically, economically and socially.[35] These dances affirmed kinship ties, provided elders with opportunities to pass on insight, legends and history to the next generation, and were a core part of Aboriginal resistance to assimilation.[35] It is estimated that between 1900 and 1904, 50 Aboriginal people were arrested and 20 were convicted for their involvement in such dances.[36] The Indian Act was amended in 1951 to allow religious ceremonies, including the "give-away dance".[26]

In R. v. Jim (1915), the British Columbia Supreme Court found that Aboriginal hunting on Indian reserves should be considered under federal jurisdiction under both the constitution and the Indian Act. The case involved whether Aboriginals were subject to provincial game laws when hunting on Indian reserves.

The act was at the centre of the 1969 Supreme Court case R. v. Drybones, regarding the conflict of a clause forbidding Indians to be drunk off the reserve with the Bill of Rights. The case is remembered for having been one of the few in which the Bill of Rights prevailed in application to Indian rights.

In Corbiere v. Canada (1999), voting rights on reserves were extended under Section Fifteen of the Canadian Charter of Rights and Freedoms.

See also

Notes

    Citations

    1. ↑ Belanger, Yale D. (2014). Ways of Knowing An Introduction to Native Studies in Canada. Toronto, ON: Nelson. p. 117.
    2. ↑ Belanger, Yale D. (2014). Ways of Knowing An Introduction to Native Studies in Canada. Toronto, ON: Nelson. p. 115.
    3. ↑ John F. Leslie (2002). "The Indian Act: An Historical Perspective". Canadian Parliamentary Review. 25 (2).
    4. 1 2 3 4 5 6 7 {{{short title}}}, {{{abbr}}} 1876, c. {{{chapter}}}, as amended by 1880, and 1894, and 1920, and 1927, and 1951 ([{{{link}}} {{{short title}}}] at CanLII). October 22, 2013.
    5. 1 2 http://indigenousfoundations.arts.ubc.ca/home/government-policy/the-indian-act.html#origins
    6. 1 2 1857 "Gradual Civilization Act", 20 Vic., c.26. For 'compulsory' text, see section 3.
    7. ↑ "Chapter 3: Modernization, 1920–1981". A History of the Vote in Canada. Elections Canada. Retrieved May 9, 2014.
    8. ↑ Lawrence 2003.
    9. 1 2 Lawrence & 2003 13.
    10. 1 2 3 Hanson 2009
    11. 1 2 Furi & Wherret 2003
    12. 1 2 3 4 NWAC 1998
    13. 1 2 ICTI 2015
    14. ↑ CTV News (2008-06-11). "Harper apologizes for residential school abuse". CTV.
    15. ↑ http://indigenousfoundations.arts.ubc.ca/home/government-policy/the-indian-act.html#potlatch
    16. ↑ Conspiracy of Legislation: The Suppression of Indian Rights in Canada CHIE F JO E MATHIAS and GARY R. YABSLEY, pp 35-36
    17. ↑ http://www.turtleisland.org/news/exemption.pdf
    18. ↑ Hogg, p. 598.
    19. ↑ Hogg, pp. 598–599.
    20. ↑ "An Act respecting the civilization and enfranchisement of certain Indians" Statutes of Canada, 22 Vic. (1859) c.9
    21. ↑ "An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands" Dominion Statutes, 1868 c.42
    22. ↑ CHAP. 34. An Act to amend "The Indian Act, 1876.", Aboriginal Affairs and Northern Development Canada
    23. 1 2 3 4 5 Report of the Royal Commission on Aboriginal Peoples, page 25
    24. ↑ s.32 – Sale or Barter of Produce, Indian Act ( R.S., 1985, c. I-5 )
    25. ↑ An Act further to amend "The Indian Act, 1880," S.C. 1884 (47 Vict.), c. 27, s. 3.
    26. 1 2 3 4 Backhouse & 1999 63.
    27. 1 2 3 4 5 6 Report of the Royal Commission on Aboriginal Peoples, page 24
    28. 1 2 3 History of the Canadian Peoples, 1867–present, Alvin Finkel & Margaret Conrad, 1998
    29. 1 2 King, Thomas. The Truth about Stories. 2003
    30. ↑ "Amendments to the Indian Band Election Regulations and the Indian Referendum Regulations", November 20, 2000, Department of Indian and Northern Affairs.
    31. ↑ "Gender Equity in the Indian Registration Act", June 28, 2012, Aboriginal Affairs and Northern Development Canada.
    32. ↑ Backhouse & 1999 68.
    33. ↑ Backhouse & 1999 72.
    34. ↑ Backhouse & 1999 79.
    35. 1 2 Backhouse & 1999 64.
    36. ↑ Backhouse & 1999 69.

    References

    Further reading

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