Indian Act

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The Indian Act ("An Act respecting Indians"), R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves. The Indian Act was a continuation in 1876 from an earlier act of the colonial government in 1859[citation needed] 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 is an attempt to codify rights promised by George III in the Royal Proclamation of 1763. The Department of Aboriginal Affairs and Northern Development, which is now responsible for the act, is administered by the Minister of Aboriginal Affairs and Northern Development.

The act defines who is an "Indian" and contains certain legal rights and legal disabilities for registered Indians. The rights exclusive to Indians in the Indian Act [1] 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.

Under the section entitled "Reserves" in the Indian Act, it is stated that reserves are "to be held for use and benefit of Indians.[1]

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

[1]

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."

—R.S., c. I-6, s. 18., Indian Act

In the Indian Act, updated to April 2013, the term "band",[1]

"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."

Status[edit]

Though people accepted into band membership under band rules may not be status Indians, 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. An Indian whose name was in the Indian Register established by the act was said to have Indian status or treaty status. An Indian who was not registered was said to be a non-status Indian. Prior to 1985, Indians could lose status in a variety of ways including the following:

  • marrying a man who was not a status Indian
  • enfranchisement (until 1960, an Indian could vote in federal elections only by renouncing Indian status)[2]
  • having at the age of 21 a mother and paternal grandmother who did not have status before marriage)
  • being born out of wedlock to a mother with status and a father without.

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)[1] to restore status to people who had lost it in one of these ways, and to their children.

Amendments and Bill C-31[edit]

There have been over twenty major changes made to the original Act.[3] The original Indian Act does two things affecting all Aboriginal peoples in Canada.[1]

  • It says how reserves and bands can operate.
The act sets out rules for governing Indian reserves, defines how bands can be created and spells out the powers of "band councils". Bands do not have to have reserve lands to operate under the act.[1]
  • It defines who is and who is not recognised as an "Indian". The act defined a number of types of Indian people who were denied recognition as "registered" or "status" Indians and who were therefore denied membership in bands.[1]

Bill C-31[edit]

In 1985 the Canadian Parliament passed Bill C-31, "An Act to Amend the Indian Act". Because of a presumed constitutional requirement, the amendment took effect as of April 17, 1985. The act has amended the Indian Act in a number of important ways.[4][5]

  • It ends discriminatory provisions of the Indian Act, especially those that discriminated against women. A woman who marries a member of another band no longer automatically becomes a member of her husband's band. Transfers between bands are still possible if the receiving band agrees.[4]
  • It changes the meaning of "status" and for the first time allows for limited reinstatement of Indians who were denied or lost status and/or Band membership in the past.[4]
  • It allows bands to define their own membership rules. Two years after Bill C-31 was passed into law on June 28, 1987, bands who chose to leave control of their membership with the Department of Indian Affairs and Northern Development (DIAND) were subject to the Indian Act provisions that a person who has Indian status also has a right to band membership at the same.[4]

Amendments 1839–present[edit]

For more than a century between 1839 and 1985 Indian affairs were governed by the idea that, through a process called "enfranchisement", an Indian might choose to live "off reserve" and thereby gain the rights of ordinary Canadian citizens. Upon the introduction in 1857 by the Taché-Macdonald administration of the Gradual Civilization Act and before 1961, the enfranchisement process was compulsory for men of age 21 able to read and write English.[6] An 1884 amendment mandated education for Indian children, to bring them to read and write English. A defensive posture for those who wished to remain of Indian status was therefore to remain illiterate. The Canadian Indian residential school system can be seen as an attempt to force Indians off their lands, and one can readily envision the trouble between residential school teachers and their students, for which on 11 June 2008 the government of Canada apologized.[7]

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 1985 amendment to the Indian Act extinguished the idea of enfranchisement. 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.

  • 1839: "Act for the Protection of the Indians in Upper Canada"
  • 1850: "An Act for the Protection of the Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury" (13&14 Vic. c.74)
  • 1850: "An Act for the Protection of the Indians in Lower Canada from imposition, and the property occupied or enjoyed by them from trespass and injury" (13&14 Vic. c.42)
  • 1857: "Act to Encourage the Gradual Civilization of Indian Tribes in this Province, and to Amend the Laws Relating to Indians" (20 Vic. c.26) through compulsory enfranchisement[6]
  • 1859: "An Act respecting Civilization and Enfranchisement of certain Indians"[8]
  • 1868: "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"[9] was created.
  • 1869: "An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42" introduced changes to the enfranchisement process.
  • 1874: "An Act to amend certain Laws respecting Indians, and to extend certain Laws relating to matters connected with Indians to the Provinces of Manitoba and British Columbia" extended westward the effect of Canadian legislation regarding Indians.
  • 1876: "An Act to amend and consolidate the laws respecting Indians" was passed.
  • 1879: "An Act to amend 'The Indian Act, 1876'"
  • 1880: "An Act to amend and consolidate the laws respecting Indians" passed.
  • 1881: Amended to make officers of the Indian Department, including Indian Agents, legal justices of the peace, able to enforce regulations. The following year they were granted the same legal power as magistrates.[10] Further amended to prohibit the sale of agricultural produce by Indians in Prairie Provinces without an appropriate permit from an Indian agent.[10] This prohibition is, as of 2008, still included in the Indian Act, though it is not enforced.[11]
  • 1884: Amended to force attendance of Indian youth in school. Amended to prevent elected band leaders who have been deposed from office from being re-elected.
  • 1885: Amended to prohibit religious ceremonies (such as potlatches) and dances (such as Tamanawas dances).[12][13]
  • 1894: Amended to remove band control of non-natives living on reserve. This power now rested exclusively in the hands of the Superintendent-General of Indian Affairs.[14]
  • 1895: Amended to outlaw all dances, ceremonies and festivals that involved the wounding of animals or humans, or the giving away of money or goods.[13]
  • 1905: Amended to allow aboriginal people to be removed from reserves near towns with more than 8,000 residents.[15]
  • 1906: Amended to allow 50% of the sale price of reserve lands to be given to band members, following the surrender of that land.
  • 1911: Amended to allow municipalities and companies to expropriate portions of reserves, without surrender, for roads, railways, and other public works.[15] Further amended to allow a judge to move an entire reserve away from a municipality if it was deemed "expedient."[14] These amendments were also known as the Oliver Act.
  • 1914: Amended to require western Indians to seek official permission before appearing in "aboriginal costume" in any "dance, show, exhibition, stampede or pageant."[10]
  • 1918: Amended to allow the Superintendent-General to lease out uncultivated reserve lands to non-aboriginals if the new lease-holder used it for farming or pasture.[14]
  • 1920: Amended to make it mandatory for aboriginal parents to send their children to Indian residential school.[citation needed] Also amended to allow the Department of Indian Affairs to ban hereditary rule of bands.[15] Further amended to allow for the involuntary enfranchisement (and loss of treaty rights) of any status Indian considered fit by the Department of Indian Affairs, without the possession of land previously required for those living off reserve. Repealed two years later but reintroduced in a modified form in 1933.[14]
  • 1927: Amended to prevent anyone (aboriginal or otherwise) from soliciting funds for Indian legal claims without a special license from the Superintendent-General. This effectively prevented any First Nation from pursuing aboriginal land claims.[10]
  • 1930: Amended to prevent a pool hall owner from allowing entrance to an Indian who "by inordinate frequenting of a pool room either on or off an Indian reserve misspends or wastes his time or means to the detriment of himself, his family or household". The owner could face a fine or a one-month jail term.[10]
  • 1936: Amended to allow Indian agents to direct band council meetings, and to cast a deciding vote in the event of a tie.[14]
  • 1951: Amended to allow the sale and slaughter of livestock without an Indian Agent permit. Status women are allowed to vote in band elections. Attempts to pursue land claims and the use of religious ceremonies (such as potlatches) are no longer prohibited by law. Further amended for the compulsory enfranchisement of First Nations women who married non-status men (including Métis, Inuit and non-status Indian, as well as non-aboriginal men), thus causing them to lose their status, and denying Indian status to any children from the marriage.[14]
  • 1961: Amended to end the compulsory enfranchisement of men or bands.
  • 1969: abortive attempt by Chrétien/Trudeau to assimilate Indians through the 1969 White Paper, which would have converted Reserve lands to common socage, the private property default in Canada.
  • 1985: Indian Act amended to void the enfranchisement process. Amended to allow First Nations women the right to keep or regain their status even after "marrying out" and to grant status to the children (but not grandchildren) of such a marriage. This amendment was debated in Parliament as Bill C-31. Under this amendment, full status Indians are referred to as 6–1. A child of a marriage between a status (6–1) person and a non-status person qualifies for 6–2 (half) status. If that child grows up and in turn married another 6–2 or a non-status person, the child of that union would be non-status. If a 6–2 marries a 6–1 or another 6–2, the children revert to 6–1 status. Blood quantum is disregarded, or rather, replaced with a "two generation cut-off clause".[16] Under amendments to the Indian Act (Bill C-31), Michel Band members have individual Indian status restored. No provision made in Bill C-31 for the restoration of status under the Band enfranchisement provision that was applied to the Michel Band. According to Thomas King, around half of status Indians are currently marrying non-status people, meaning this legislation accomplishes complete legal assimilation in a matter of a few generations.[16]
  • 2000: Amended to allow band members living off reserves to vote in band elections and referendums.[17]
  • 2011: Amended provisions of the Indian Act that the Court of Appeal for British Columbia found to be unconstitutional in the case of McIvor v. Canada. The bringing into force of Bill C-3 on January 31, 2011, ensured that eligible grandchildren of women who lost status as a result of marrying non-Indian men became entitled to registration (Indian status). As a result of this legislation approximately 45,000 persons became newly entitled to registration.[18]
  • 2013: On 23 January, the "Transfer of Land in an Indian Reserve"[19] form, by which the Indian Act status of a piece of land can be vitiated, was published.

Section 88[edit]

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.[20] 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.[21]

Case law[edit]

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.[22] 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".[23] The dance ceremony involved the giving away and exchange of blankets and horses; thus it breached Section 114 of the Indian Act.[13] As a result, Wanduta, an elder of the Dakota community, was sentenced to four months of hard labour and imprisonment on January 26, 1903.[24]

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.[25] 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.[25] It is estimated that between 1900 and 1904, 50 Aboriginal people were arrested and 20 were convicted for their involvement in such dances.[26] The Indian Act was amended in 1951 to allow religious ceremonies, including the "give-away dance".[13]

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.

Discriminatory definition issues[edit]

Bonita Lawrence (2003)[27] 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."[28] 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.[28]

Notes[edit]

Citations[edit]

  1. ^ a b c d e f g h {{{short title}}}, {{{abbr}}} 1876, c. {{{chapter}}}, as amended by 1880, and 1894, and 1920, and 1927, and 1951 ([{{{link}}} {{{short title}}}] at CanLII). Retrieved October 22, 2013.
  2. ^ "Chapter 3: Modernization, 1920–1981". A History of the Vote in Canada. Elections Canada. Retrieved May 9, 2014. 
  3. ^ John F. Leslie (2002). "The Indian Act: An Historical Perspective". Canadian Parliamentary Review 25 (2). 
  4. ^ a b c d "First Nations, Bill C-31, Indian Act". Communications Branch. Department of Indian Affairs and Northern Development. Retrieved 2009-10-02. 
  5. ^ GC 2013.
  6. ^ a b 1857 "Gradual Civilization Act", 20 Vic., c.26. For 'compulsory' text, see section 3.
  7. ^ CTV News (2008-06-11). "Harper apologizes for residential school abuse". CTV. 
  8. ^ "An Act respecting the civilization and enfranchisement of certain Indians" Statutes of Canada, 22 Vic. (1859) c.9
  9. ^ "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
  10. ^ a b c d e Report of the Royal Commission on Aboriginal Peoples, page 25
  11. ^ s.32 – Sale or Barter of Produce, Indian Act ( R.S., 1985, c. I-5 )
  12. ^ An Act further to amend "The Indian Act, 1880," S.C. 1884 (47 Vict.), c. 27, s. 3.
  13. ^ a b c d Backhouse & 1999 63.
  14. ^ a b c d e f Report of the Royal Commission on Aboriginal Peoples, page 24
  15. ^ a b c History of the Canadian Peoples, 1867–present, Alvin Finkel & Margaret Conrad, 1998
  16. ^ a b King, Thomas. The Truth about Stories. 2003
  17. ^ "Amendments to the Indian Band Election Regulations and the Indian Referendum Regulations", November 20, 2000, Department of Indian and Northern Affairs.
  18. ^ "Gender Equity in the Indian Registration Act", June 28, 2012, Aboriginal Affairs and Northern Development Canada.
  19. ^ "Transfer of Land in an Indian Reserve" form
  20. ^ Hogg, p. 598.
  21. ^ Hogg, pp. 598–599.
  22. ^ Backhouse & 1999 68.
  23. ^ Backhouse & 1999 72.
  24. ^ Backhouse & 1999 79.
  25. ^ a b Backhouse & 1999 64.
  26. ^ Backhouse & 1999 69.
  27. ^ Lawrence 2003.
  28. ^ a b Lawrence & 2003 13.

See also[edit]

References[edit]

Further reading[edit]

  • John F. Leslie (2002). "The Indian Act: An Historical Perspective". Canadian Parliamentary Review 25 (2).  This article by John F. Leslie, a research consultant with Public History Inc., is an edited version of the testimony Leslie's testimony to the House of Commons Standing Committee on Aboriginal Affairs on March 12, 2002. The article provides a detailed step-by-step description of amendments to the Indian Act. It also provides detailed information about other laws related to the Indian Act. "In 2001 the Minister of Aboriginal Affairs, Robert Nault, announced that the government would be introducing legislation to overhaul the Indian Act. In anticipation of this legislation in February 2002, the House of Commons Standing Committee on Aboriginal Affairs began hearing from various witnesses on issues relating to the Act. For the sake of simplicity, this article uses the term "Indian" throughout. The Constitution states that Canada’s Aboriginal Peoples are Indians, Métis and Inuit, but the Indian Act does not apply to Métis and the 1951 Indian Act specifically excludes Inuit from its operation Note about author."

External links[edit]

  • "Indian Act, RSC 1985, c I-5", GC, 2013, retrieved October 22, 2013 
  • "Legislative Summary of Bill C-31, Indian Act", GC (Ottawa, Ontario, Canada), 1985, retrieved October 23, 2013 
    • Information sheet on Bill C-31, Ottawa, Ontario, Canada: David N. Johnson, 1996–2002  This web page uploaded on 1997 on www.johnco.com has re-published materials from various sources. This page is part of a series of "information sheets produced by the Communications Branch, Department of Indian Affairs and Northern Development regarding the Report to Parliament on the Implementation of the 1985 Changes to the Indian Act, The Impacts of the 1985 Amendments to the Indian Act (Bill C-31) produced for the Department of Indian Affairs and Northern Development, Ottawa, Ontario."