Indian Act


The Indian Act is a Canadian Act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves. First passed in 1876 and still in force with amendments, it is the primary document that defines how the Government of Canada interacts with the 614 First 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.
The act is very wide-ranging in scope, covering governance, land use, healthcare, education, and more on Indian reserves. Notably, the original Indian Act defines two elements that affect all Indigenous Canadians:
  • It says how reserves and bands can operate. The act sets out rules for governing Indian reserves, defines how bands can be created, and defines 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, recognized as an "Indian"; that is, who has Indian status. The act defines types of Indian persons who are not recognized as "registered" or "status" Indians, who are therefore denied membership in bands. In mixed marriage, the status of each partner and their children resolved on patrilineal terms. The act is now viewed as having historically discriminated against women, their claim to status and being registered under the same terms as men. For example, women marrying a non-Indian lost their Indian status, but men who married non-Indians did not lose Indian status.
The act was passed because the Crown relates differently to First Nations than to other ethnic groups because of their previous history on the land. When Canada confederated in 1867, the new state inherited legal responsibilities from the colonial periods under France and Great Britain, most notably the Royal Proclamation of 1763 which made it illegal for British subjects to buy land directly from Indian nations, since only the Crown could add land to the British Empire from other sovereign 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 the Mi'kmaq and the Upper Canada treaties. During the negotiations around Canadian Confederation, the framers 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, by the terms of Section 91 of the Constitution Act, 1867. The Indian 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.

Original rationale and purpose

The act was introduced in 1875 by the Liberal government of Alexander Mackenzie as a consolidation of various laws concerning Indigenous peoples enacted by the separate colonies of British North America prior to Confederation, most notably the Gradual Civilization Act passed by the Parliament of the Province of Canada in 1857 and the Gradual Enfranchisement Act of 1869. The act was passed by the Parliament of Canada under the provisions of Section 91 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 indigenous peoples by King 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 the act and survived in some form until 1985. From the introduction in 1857 by the Taché-Macdonald administration of the Gradual Civilization Act until 1961, the enfranchisement process was optional for men of age 21 able to read and write English or French.
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, 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 by the Royal Proclamation of 1763 to traffic in alcohol or land with Indians. The Crown hoped, by means of fiduciary duty that it voluntarily took on, to preserve Indian identity. But later the government of the Province of Canada conceived of the compulsory enfranchisement scheme of the Gradual Civilization Act. The 1985 amendment to the Indian Act extinguished the idea of enfranchisement, although by then Status Indians were Canadian citizens by birth.

Definitions

"Reserve"

Under the section entitled "Reserves" in the Indian Act, reserves are said "to be held for use and benefit of Indians.

"Band"

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

"Indian"

Fundamental to Canada's ability to interact with First Nations peoples is the question of defining who they are, 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 official Indian Register maintained by the federal government are Status Indians, subject to the full legal benefits and restrictions of the act. Notably this excludes Métis, Inuit, 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

Prior to 1985, Indigenous persons could lose status under the act in a variety of ways, including the following:
  • marrying a man who was not a status Indian
  • enfranchisement: until 1947, Indigenous persons could not have both Indian status and Canadian citizenship.
  • having a father or husband who becomes enfranchised
  • 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 gained their belonging in the clan from her family. Often property and hereditary leadership passed through the maternal line. In addition, the 1876 Indian Act maintained that Indigenous women with status who married status Indigenous men would, in the event of divorce, be unable to regain their status to the band they were originally registered in. 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. 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.
In Attorney General of Canada v. Lavell, these laws were upheld despite arguments made under the Canadian Bill of Rights. The act was amended in 1985 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 the Indian Act would apply to such members. The sections in question are those relating to community life. Sections relating to Indians as individuals were not included.
Discriminatory definition issues
Canadian writer Bonita Lawrence discusses a feminist position on the relationship between federal definition and Indian identity in Canada. Until 1985, subsection 12 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 subsection 12 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, 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.
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 the Native 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 the Indian Act that allowed some women and their children to regain and/or attain status under Bill-C31. Meanwhile, 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. 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.