| Indian Act | |
|---|---|
 | |
| Parliament of Canada | |
| |
| Citation | RSC 1985, c I-5 |
| Enacted by | Parliament of Canada |
| Assented to | April 12, 1876 |
| Summary | |
| the Indian Act is the principal vehicle for the exercise offederal jurisdiction over “status Indians,” and governs most aspects of their lives.[2] | |
| Status: In force | |
TheIndian Act (French:Loi sur les Indiens) is a CanadianAct of Parliament that concernsregistered Indians, theirbands, and the system ofIndian reserves.[3][4][a] First passed in 1876 and still in force with amendments, it is the primary document that defines how theGovernment of Canada interacts with the 614First Nation bands in Canada and their members. Throughout its long history, the act has been a subject of controversy and has been interpreted in different ways by both Indigenous Canadians and non-Indigenous Canadians. The legislation has been amended many times, including "over five major changes" made in 2002.[6]
The act is very wide-ranging in scope, coveringgovernance,land use,healthcare,education, and more on Indian reserves. Notably, the originalIndian Act defines two elements that affect allIndigenous Canadians:
The act was passed becausethe Crown relates differently to First Nations (historically called "Indians") than toother ethnic groups because of their previous history on the land.When Canada confederated in 1867, the new state inherited legal responsibilities from thecolonial periods underFrance andGreat Britain, most notably theRoyal Proclamation of 1763 which made it illegal forBritish subjects to buy land directly from Indian nations, since only the Crown could add land to theBritish Empire from othersovereign nations through treaties. This led to early treaties between Britain and nations the British still recognized as sovereign, like the "Peace and Friendship Treaties" with theMi'kmaq and theUpper Canada treaties. During the negotiations aroundCanadian Confederation, theframers of Canada's constitution wanted the new federal government to inherit Britain's former role in treaty-making and land acquisition, and specifically assigned responsibility for "Indians and lands reserved for Indians" to the federal government (rather than theprovinces), by the terms ofSection 91(24) of theConstitution Act, 1867. TheIndian Act replaced any laws on the topic passed by a local legislature before a province joined Canadian Confederation, creating a definitive national policy.
The act is not a treaty; it is Canada's legal response to the treaties. The act's unilateral nature was imposed on Indigenous peoples after passage by the Canadian government, in contrast to the treaties, which were negotiated. This aspect was resented and resisted by many Indigenous peoples in Canada.
The act was introduced in 1875 by theLiberal government as a consolidation of various laws concerning Indigenous peoples enacted by the separate colonies ofBritish North America prior toConfederation, most notably theGradual Civilization Act passed by theParliament of the Province of Canada in 1857 and theGradual Enfranchisement Act of 1869.[8] The act was passed by theParliament of Canada under the provisions of Section 91(24) of theConstitution 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 byKing George III in theRoyal Proclamation of 1763 while at the same timeenforcing 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 the act and survived in some form until 1985. From the introduction in 1857 by theTaché-Macdonald administration of theGradual Civilization Act until 1961, the enfranchisement process was optional for men of age 21 able to read and write English or French.[9]
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.
Reserves, under this legislation, were islands within Canada to which were attached a different set of Indigenous rights. "Enfranchisement" derives from the idea of "franchise", which has gradually been degraded as "vote". Indigenous people with the franchise became official citizens of Canada (or British subjects before 1947), 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 Crownprotectorate. Interactions between enfranchised citizens and Indians were subject to strict controls; for example, the enfranchised were forbidden by theRoyal Proclamation of 1763 to traffic in alcohol or land with Indians. The Crown (in this case theIndian Department) hoped, by means offiduciary duty that it voluntarily took on, to preserve Indian identity. But later the government of theProvince of Canada conceived of the compulsory enfranchisement scheme of theGradual Civilization Act. The 1985 amendment to theIndian Act extinguished the idea of enfranchisement, although by then Status Indians were Canadiancitizens by birth.
Under the section entitled "Reserves" in theIndian Act,reserves are said "to be held for use and benefit of Indians.[7]
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.
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.
— Indian Act, R.S.C., c. I-6, s. 18.[10]
In theIndian Act, updated to April 2013, the term "band"[7]
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[10]
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 theIndian 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" are considered "Indians" under the terms of the act. Only those on the officialIndian 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 act. Notably this excludesMétis,Inuit, and so-calledNon-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.
Prior to 1985, Indigenous persons could lose status under the act in a variety of ways, including the following:
These provisions interfered with thematrilineal cultures of many First Nations, whereby children were born to the mother'sclan and people gained their belonging in the clan from her family. Often property and hereditary leadership passed through the maternal line. In addition, the 1876Indian Act maintained that Indigenous women with status who married status Indigenous men would, in the event of divorce, be unable to regain theirstatus to the band they were originally registered in.[12] This occurred as a result of the act's enforcement of the patrilineal descent principle required to determine an individual's eligibility for Indian status.[12] As individuals, Indigenous women were not eligible for status or able to transfer status to their children in their own right. Indian status could only be reacquired or transferred legally by proof of an Indigenous father or through marriage to a husband with status.[12]
InAttorney General of Canada v. Lavell (1974), these laws were upheld despite arguments made under theCanadian Bill of Rights. The act was amended in 1985 (Bill C-31)[7] to restore status to people who had lost it in one of these ways, and to their children. Though people accepted into band membership under band rules may not be status Indians, Bill C-31 clarified that various sections of theIndian Act would apply to such members. The sections in question are those relating to community life (e.g., landholdings). Sections relating to Indians (Aboriginal people) as individuals (in this case, wills and taxation of personal property) were not included.
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Bonita Lawrence (2003)[13] discusses a feminist position on the relationship between federal definition and Indian identity in Canada. Until 1985, subsection 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."[14] Under subsection 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, subparagraph 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 theIndian Act amendments and modifications in 1951.
Lawrence discusses the struggles of Jeannette Corbiere Lavell and Yvonne Bédard in the early 1970s, two Indigenous women who had both lost their Indian status for marrying white men.Lavell, whose activism helped create the Ontario Native Women's Association and also held the position of vice president of theNative Women's Association of Canada, and other Indigenous women were key actors in generating public awareness of gender discrimination in Canadian law and paving the way for later amendments to theIndian Act that allowed some women and their children to regain and/or attain status under Bill-C31.[15] Meanwhile, theSupreme Court of Canada ruled that theIndian 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 toR. v. Drybones. In 1981,Sandra Lovelace, aMaliseet woman from westernNew Brunswick, forced the issue by taking her case to theUnited 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.[14]
The Canadian government applied gender bias requirements to the legal status of Aboriginal peoples in Canada. First passed as part of theGradual Enfranchisement Act, a status Indian woman who married a man who was not a status Indian became non-status.[16] 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.[8] 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 status Indian men who married non-status women; these men were able to keep their status.[8] Section 12, paragraph 1(b) of the 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 women's movements contributing to a variety of proposals for reform.[17] Amended in 1985 through Bill C-31, section 12 was removed and status was reinstated to those affected. The 1985 amendments led to the repatriation of status for many Indigenous women and their children but did not guarantee acceptance into an Indian band.[18] A decade later, nearly 100,000 people had their status reinstated while bands gained control of membership responsibilities that were previously administrated by the Department of Indian Affairs.[18] Consequently, the reality of scarce access to essential services and resources amongst Indigenous communities became a primary factor driving the membership process and its outcomes.[18]
As stated in Bill C-31, women who lost their status as a result of marrying a man who was not a status Indian can apply for reinstatement and regain status under subsection 6(1).[19] However, the children of reinstated women are subject to registration under subsection 6(2).[17] Aboriginal people registered under section 6(2) are unable to transmit status to future generations.[19] Thus, by reinstating women under section 6 of the act, the Canadian government failed to completely remove gender discrimination from its legislation, as the children of reinstated women have restrictions on their status, and status Indian men continue to hold a greater quality of status than women. Under Bill C-31, this system became known as the second generation cut-off.[18] Bill C-31 amendments create a new system for classifying status Indians that maintains gender discrimination.[19] Indigenous women's movements expressed that Bill C-31 failed to eliminate all gender discrimination from theIndian Act, and in 2010 the Canadian government introduced Bill C-3 (theAct to Promote Gender Equality in Indian Registration).[19]
Bill C-31 attempts to recognise the United Nations' Human Rights Committee decision in the Sandra Lovelace case and Charter compliance issues. However, under Bill C-31, a woman who regains status falls under 6(1) and her children fall under 6(1) status. However, anybody who loses and regains status not due to marriage falls under 6(2) and cannot gain status [like 6(1)].[20] This action has ultimately violated the United Nations' International Covenant on Civil and Political Rights through the discriminatory practices of theIndian Act; this law discriminates against Indigenous women and their descendants in their right to express their culture. In addition, this decision was also made based on the 2007 Supreme Court of British Columbia case of Sharon McIvor and her son, Jacob Grisner, that have been waiting over a decade of a verdict of their case.[21] The UNHRC's decision has determined that Bill C-31 has violated Articles 3 and 26 of the International Covenant, in concurrence of Article 27. As well, in Article 2(3)(a) of the decision, the Government of Canada must provide effective remedy.[22]
Under the United Nations' International Covenant on Civil and Political Rights, the Government of Canada is required in 180 days to fulfill these requirements: to ensuring that paragraph 6(1)(a) of theIndian Act is understood in a way that allows registration of those who were not previously registered under the distinction of paragraph 6(1)(a) on the basis of sex and gender, account for the ongoing discrimination of Indigenous peoples in Canada of gender and sex in theIndian Act and to avoid future discrimination similar to this Bill.[22]
Bill C-3 amendments to the act (Gender Equity in Indian Registration Act[23]—GEIRA) permitted Aboriginal women reinstated under subsection 6(2) to be eligible for 6(1) status.[24] Creating paragraph 6(1)(c.1) registration, reinstated Aboriginal women could only be eligible for registration under 6(1) if they had non-status children.[24] Since it was the children of Aboriginal women who had been affected by restrictions under subsection 6(2) legal registration, only women who had children were eligible to be registered under subsection 6(1) of the act. Continuing to place restrictions on the status of reinstated women, Bill C-3 does not remove all gender bias provisions from the act.
Bill S-3,An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général)[25] addresses gender-based inequalities in theIndian Act. Bill S-3 receivedroyal assent in December 2017 and came in to full effect in August 2019.[26] With it, "most of the sex inequalities have been removed from the Indian Act." But "there is still other discrimination in place ... involving enfranchisement and adoption."[27]
In 1894 amendments to theIndian Act made school attendance compulsory for Indigenous children between 7 and 16 years of age. The changes included a series of exemptions regarding school location, the health of the children and their prior completion of school examinations.[28]: 254–255 TheCanadian Indian residential school system subjected children to forced conversions, sickness, abuse and what has been described as an attempt at cultural genocide by theTruth and Reconciliation Commission.[29] The residential school system severed family ties and diminished the transmission of traditional culture, in an attempt to assimilate Indigenous peoples into broader Canadian society for which on June 11, 2008, the government of Canada apologized.[30]
In 1885, an amendment to the act banned thePotlatch ceremony of the West Coast peoples.[28]: 636 ThePotlatch ban drove traditional ceremonies underground. A similar amendment in 1895 banned theSun Dance of the Plains peoples, which was not lifted until 1951. Although lifted in 1951, repression of Indigenous spiritual practices continued in Canadian prisons through to the 1980s, as prison wardens often denied Indigenous peoples access to materials used for prayer.[31]
Starting in the early 1900s, theNisga'a First Nation started or attempted to start several legal proceedings to take control of their traditional territory.[32] A series of attempts were denied by the B.C. government or not pursued by the Canadian government. A 1927 amendment (Section 141) forbade any First Nation or band from retaining a lawyer for the purpose of making a claim against Canada, and further forbade them from raising money to retain a lawyer, on punishment of imprisonment[8][33]
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.[34]
The rights exclusive to Indians in theIndian Act[7] are beyond legal challenge under theConstitution Act, 1982.Section 25 of theConstitution Act, 1982 provides that theCanadian Charter of Rights and Freedoms shall not be interpreted as negating Aboriginal, treaty or other rights of Canada's Aboriginal peoples.
Section 88 of the 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.[35] InKruger 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 scholarPeter Hogg argues that inDick v. The Queen (1985),[36] 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.[37]
Numerous failed attempts have been made by Canadian parliamentarians to repeal or replace theIndian Act without success. Those changes that have been made have been piecemeal reforms, rather than sweeping revisions.
Since the 1990s, several pieces of legislation have been passed allowing individual bands to opt out of a particular section of theIndian 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 act except for the section in question.
The 1895 amendment of theIndian Act (Section 114) criminalized many Aboriginal ceremonies, which resulted in the arrest and conviction of numerous Aboriginal people for practising their basic traditions.[62] 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. TheDakota people (Sioux) who settled in Oak River, Manitoba, in 1875 were known to conduct "give-away dances", also known as the "grass dance".[63] The dance ceremony involved the giving away and exchange of blankets and horses; thus it breached Section 114 of theIndian Act.[44] As a result, Wanduta, an elder of the Dakota community, was sentenced to four months of hard labour and imprisonment on January 26, 1903.[64]
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.[65] 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.[65] It is estimated that between 1900 and 1904, 50 Aboriginal people were arrested and 20 were convicted for their involvement in such dances.[66] The Indian Act was amended in 1951 to allow religious ceremonies, including the "give-away dance".[44]
InR. v. Jim (1915), theBritish Columbia Supreme Court found that Aboriginal hunting on Indian reserves should be considered under federal jurisdiction under both the constitution and theIndian 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 caseR. 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.
InCorbiere v. Canada (1999), voting rights on reserves were extended underSection Fifteen of the Canadian Charter of Rights and Freedoms.
InCanada (Canadian Human Rights Commission) v. Canada (Attorney General) (2018), the majority found that theCanadian Human Rights Tribunal's determination that theIndian Act did not violate theCanadian Human Rights Act was reasonable due tojudicial deference.[67]
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