Indian Act
Encyclopedia
The term Indian in this article refers to First Nations
First Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...

 of Canada; not to be confused with South Asians from Indian subcontinent
Indian subcontinent
The Indian subcontinent, also Indian Subcontinent, Indo-Pak Subcontinent or South Asian Subcontinent is a region of the Asian continent on the Indian tectonic plate from the Hindu Kush or Hindu Koh, Himalayas and including the Kuen Lun and Karakoram ranges, forming a land mass which extends...

.

The Indian Act ("An Act respecting Indians"), R.S., 1951, c. I-5, is a Canadian statute
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

 that concerns registered Indians, their bands, and the system of Indian reserve
Indian reserve
In Canada, an Indian reserve is specified by the Indian Act as a "tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band." The Act also specifies that land reserved for the use and benefit of a band which is not...

s. The Indian Act was enacted in 1876 by the Parliament of Canada under the provisions of Section 91(24) of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...

, which provides Canada's federal government exclusive authority to legislate in relation to "Indians and Lands Reserved for Indians". The Department of Aboriginal Affairs and Northern Development, which is 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 are beyond legal challenge under the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...

. Section 25
Section Twenty-five of the Canadian Charter of Rights and Freedoms
Section Twenty-five of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the Charter...

 of the Constitution Act, 1982 provides that the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

 shall not be interpreted as negating aboriginal, treaty or other rights of Canada's aboriginal peoples.

Status

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 (Aboriginals) as individuals (in this case, wills and taxation of personal property) were not included.
An Indian whose name was in the Indian Register
Indian Register
The Indian Register is the official record of Status Indians or Registered Indians in Canada. Status Indians have rights and benefits that are not granted to unregistered Indians, Inuit, or Métis, the chief benefits of which include the granting of reserves and of rights associated with them, an...

 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)
  • 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
Clan
A clan is a group of people united by actual or perceived kinship and descent. Even if lineage details are unknown, clan members may be organized around a founding member or apical ancestor. The kinship-based bonds may be symbolical, whereby the clan shares a "stipulated" common ancestor that is a...

 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
Attorney General of Canada v. Lavell
Attorney General of Canada v. Lavell; Isaac v. Bédard, [1973] S.C.R. 1349, was a landmark 5-4 Supreme Court of Canada decision holding that Section 12 of the Indian Act did not violate the respondents' right to "equality before the law" under Section 1 of the Canadian Bill of Rights...

 (1974), these laws were upheld despite arguments made under the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...

. The Indian Act was amended in 1985 (Bill C-31) to restore status to people who had lost it in one of these ways, and to their children.

Amendments and Bill C-31

There have been over twenty major changes made to the original Act. The original Indian Act does two things affecting all Aboriginal peoples in Canada.
  • It says how reserves and bands can operate.
The act sets out rules for governing Indian reserves
Indian Reserve (1763)
The Indian Reserve was a territory under British rule in North America set aside in the Royal Proclamation of 1763 for use by American Indians between 1763 and 1783....

, 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.
  • 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.

Bill C-31

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.
  • 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.
  • 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.
  • 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.

Amendments 1881–2000

  • 1881: Amended to make officers of the Indian Department, including Indian Agents
    Indian Agent (Canada)
    Indian Agent is the title of a position in Canada mandated by the Indian Act of that country. An Indian Agent was the chief administrator for Indian affairs in their respective districts, although the title now is largely in disuse in preference to Government Agent. The powers of the Indian...

    , legal justices of the peace, able to enforce regulations. The following year they were granted the same legal power as magistrates. Further amended to prohibit the sale of agricultural produce by Indians in Prairie Provinces without an appropriate permit from an Indian agent. This prohibition is, , still included in the Indian Act, though it is not enforced.
  • 1884: Amended to prevent elected band leaders who have been deposed from office from being re-elected.
  • 1885: Amended to prohibit religious ceremonies (such as potlatch
    Potlatch
    A potlatch is a gift-giving festival and primary economic system practiced by indigenous peoples of the Pacific Northwest Coast of Canada and United States. This includes Heiltsuk Nation, Haida, Nuxalk, Tlingit, Makah, Tsimshian, Nuu-chah-nulth, Kwakwaka'wakw, and Coast Salish cultures...

    es) and dances (such as Tamanawas dances).
  • 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.
  • 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.
  • 1905: Amended to allow aboriginal people to be removed from reserves near towns with more than 8,000 residents.
  • 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. Further amended to allow a judge to move an entire reserve away from a municipality if it was deemed "expedient." 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."
  • 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
    Pasture
    Pasture is land used for grazing. Pasture lands in the narrow sense are enclosed tracts of farmland, grazed by domesticated livestock, such as horses, cattle, sheep or swine. The vegetation of tended pasture, forage, consists mainly of grasses, with an interspersion of legumes and other forbs...

    .
  • 1920: Amended to allow the Department of Indian Affairs to ban hereditary rule of bands. 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.
  • 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.
  • 1930: Amended to prevent a pool hall
    Pool hall
    A billiard/billiards, pool or snooker hall is a place where people get together for playing cue sports such as pool, snooker or carom billiards...

     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.
  • 1936: Amended to allow Indian agents to direct band council meetings, and to cast a deciding vote in the event of a tie.
  • 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.
  • 1961: Amended to end the compulsory "enfranchisement" of men or bands.
  • 1985: 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, but if the child in turn married another 6–2 or a non-status person, the child is 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". 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.
  • 2000: Amended to allow band members living off reserves to vote in band elections and referendums.

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. In Kruger and al. v. The Queen
Kruger and al. v. The Queen
Kruger and al. v. The Queen, [1978] 1 S.C.R. 104, was a decision by the Supreme Court of Canada on the relationship between the Indian Act and provincial game laws. The Indian Act is a federal law enacted under the British North America Act, 1867, which gives jurisdiction over Aboriginals to the...

 (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
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....

 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.

Case law

Main articles see: :Category:Canadian Aboriginal 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 practicing their basic traditions. 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". The dance ceremony involved the giving away and exchange of blankets and horses; thus it breached Section 114 of the Indian Act. As a result, Wanduta, an elder of the Dakota community, was sentenced to four months of hard labour and imprisonment on January 26, 1903.

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. 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. It is estimated that between 1900 and 1904, fifty Aboriginal people were arrested and twenty were convicted for their involvement in such dances. The Indian Act was amended in 1951 to allow religious ceremonies, including the "Give Away Dance".

In R. v. Jim
R. v. Jim
R. v. Jim 26 C.C.C. 236, was a decision by the British Columbia Supreme Court on Aboriginal hunting and provincial game laws...

 (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
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 case R. v. Drybones
R. v. Drybones
R. v. Drybones, [1970] S.C.R. 282, is a landmark 6-3 Supreme Court of Canada decision holding that the Canadian Bill of Rights "empowered the courts to strike down federal legislation which offended its dictates." Accordingly, the Supreme Court of Canada held that section 94 of the Indian Act is...

, 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
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...

.

Discriminatory definition issues

Bonita Lawrence (2003) 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." 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
Attorney General of Canada v. Lavell
Attorney General of Canada v. Lavell; Isaac v. Bédard, [1973] S.C.R. 1349, was a landmark 5-4 Supreme Court of Canada decision holding that Section 12 of the Indian Act did not violate the respondents' right to "equality before the law" under Section 1 of the Canadian Bill of Rights...

 in the early 1970s, two women who had both lost their Indian status for marrying white men. The Canadian Supreme Court 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 1981, Sandra Lovelace
Sandra Lovelace Nicholas
Mary Sandra Lovelace Nicholas, CM is a Wolastoqiyik or Maliseet Canadian senator representing New Brunswick. Sitting as a Liberal, she is the first Aboriginal woman appointed to the Senate. As an activist on behalf of First Nations women and children, she received international recognition in 1979...

, a Maliseet woman from western New Brunswick
New Brunswick
New Brunswick is one of Canada's three Maritime provinces and is the only province in the federation that is constitutionally bilingual . The provincial capital is Fredericton and Saint John is the most populous city. Greater Moncton is the largest Census Metropolitan Area...

 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.

See also

  • Canadian Aboriginal law
    Canadian Aboriginal law
    Canadian Aboriginal law is the body of Canadian law that concerns a variety of issues related to aboriginal peoples in Canada. Aboriginal law provides certain rights to land and traditional practices...

  • Indian Health Transfer Policy (Canada)
    Indian Health Transfer Policy (Canada)
    The Indian Health Transfer Policy of Canada, provided a framework for the assumption of control of health services by Aboriginal Canadians and set forth a developmental approach to transfer centred on the concept of self-determination in health. Through this process, the decision to enter into...

  • Numbered Treaties
    Numbered Treaties
    The numbered treaties are a series of eleven treaties signed between the aboriginal peoples in Canada and the reigning Monarch of Canada from 1871 to 1921. It was the Government of Canada who created the policy, commissioned the Treaty Commissioners and ratified the agreements...

  • Status of First Nations treaties in British Columbia
    Status of First Nations treaties in British Columbia
    The status of the First Nations, aboriginal people of British Columbia , Canada, is a long-standing problem that has become a major issue in recent years. In 1763 the British Crown declared that only it could acquire land from First Nations through treaties. Historically only two treaties were...

  • The Canadian Crown and Aboriginal peoples

External links

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