Indian Act

The term Indian in this article refers to First Nations of Canada; not to be confused with South Asians from Indian subcontinent.

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 enacted in 1876 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 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. 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.

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 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 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) 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.^[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

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.^[2]

• 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.^[2]
• 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.^[2]
• 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.^[2]

Amendments 1881–2000

• 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.^[3] Further amended to prohibit the sale of agricultural produce by Indians in Prairie Provinces without an appropriate permit from an Indian agent.^[3] This prohibition is, as of 2008^[update], still included in the Indian Act, though it is not enforced.^[4]
• 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 potlatches) and dances (such as Tamanawas dances).^[5][6]
• 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.^[7]
• 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.^[6]
• 1905: Amended to allow aboriginal people to be removed from reserves near towns with more than 8,000 residents.^[8]
• 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.^[8] Further amended to allow a judge to move an entire reserve away from a municipality if it was deemed "expedient."^[7] 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."^[3]
• 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.^[7]
• 1920: Amended to allow the Department of Indian Affairs to ban hereditary rule of bands.^[8] 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.^[7]
• 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.^[3]
• 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.^[3]
• 1936: Amended to allow Indian agents to direct band council meetings, and to cast a deciding vote in the event of a tie.^[7]
• 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.^[7]
• 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".^[9] 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.^[9]
• 2000: Amended to allow band members living off reserves to vote in band elections and referendums.^[10]

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.^[11] 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.^[12]

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.^[13] 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".^[14] The dance ceremony involved the giving away and exchange of blankets and horses; thus it breached Section 114 of the Indian Act.^[15] As a result, Wanduta, an elder of the Dakota community, was sentenced to four months of hard labour and imprisonment on January 26, 1903.^[16]

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.^[17] 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.^[17] It is estimated that between 1900 and 1904, fifty Aboriginal people were arrested and twenty were convicted for their involvement in such dances.^[18] The Indian Act was amended in 1951 to allow religious ceremonies, including the "Give Away Dance".^[19]

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

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."^[20] 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 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, 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.^[21]

See also

• Canadian Aboriginal law
• Indian Health Transfer Policy (Canada)
• Numbered Treaties
• Status of First Nations treaties in British Columbia
• The Canadian Crown and Aboriginal peoples

References

External links

• BILL C-31