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Indian Act

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Indian Act
Parliament-Ottawa.jpg
Parliament of Canada
Enacted byParliament of Canada
Assented toApril 12, 1876

The Indian Act (long name An Act to amend and consolidate the laws respecting Indians[1], French: Loi sur les Indiens) is a Canadian act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves.[2][3] First passed in 1876 and still in force with amendments, it is the primary document which 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 an ongoing 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 twenty major changes" made in 2002.[4]

The Act is very wide-ranging in scope, covering governance, land use, healthcare, education, and more on Indian reserves. Notably, the original Indian Act does two things affecting all indigenous Canadians:

The Act's existence is necessitated by the fact that First Nations (historically called "Indians") relate differently to the state because of inherited legal arrangements such as the Royal Proclamation of 1763 and various treaties, and because Canada's constitution specifically assigns indigenous issues to the federal, rather than provincial, governments, by the terms of Section 91(24) of the Constitution Act, 1867. The Act replaced any laws on the topic passed by a local legislature before a province joined Canadian Confederation, creating a definitive national policy on the subject. The Act is not a treaty; it is Canada's legal response to the treaties. Nevertheless, its unilateral nature, imposed on indigenous peoples by the Canadian government in contrast to the treaties, is itself a source of discontent among indigenous peoples in Canada.

Original rationale and purpose

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.

John A Macdonald, 1887[6]

The Act was first passed in 1876 as a consolidation of various laws concerning indigenous peoples enacted by the separate colonies of British North America prior to Canadian 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.[6] The Act was passed 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 was an attempt to codify rights promised to Native peoples by British 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. Upon the introduction in 1857 by the Taché-Macdonald administration of the Gradual Civilization Act and until 1961, the enfranchisement process was compulsory for men of age 21 able to read and write English.[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". Indigenous people 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 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. 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. The 1985 amendment to the Indian Act extinguished the idea of enfranchisement.

Definitions

"Reserve"

Under the section entitled "Reserves" in the Indian Act, it is stated that reserves are "to be held for use and benefit of Indians.[5]

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[8][5]

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.

— DIANA, R.S., c. I-6, s. 18. Indian Act[8]

"Band"

In the Indian Act, updated to April 2013, the term "band",[5]

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[8]

"Indian"

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 the Indian 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 official Indian 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 excludes Métis people, Inuit people, 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:

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 Act was amended in 1985 (Bill C-31)[5] 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 (e.g., landholdings). Sections relating to Indians (Aboriginal people) as individuals (in this case, wills and taxation of personal property) were not included.

Discriminatory definition issues

Bonita Lawrence (2003)[10] 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."[11] 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 the Indian Act amendments and modifications in 1951.

Lawrence 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.[11]

Policies enacted via the Indian Act

Gender discrimination

The Canadian government applied gender bias requirements to the legal status of Aboriginal peoples in Canada. First passed as part of the Gradual Enfranchisement Act, a status Indian woman who married a man who was not a status Indian became non-status.[12] 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.[13] 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.[13] 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 female movements contributing to a variety of proposals for reform.[14] Amended in 1985 through the introduction of Bill C-31, section 12 was removed and status was reinstated to those affected.

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).[15] However, the children of reinstated women are subject to registration under subsection 6(2).[14] Aboriginal people registered under section 6(2) are unable to transmit status to future generations.[15] 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. Bill C-31 amendments create a new system for classifying status Indians that maintains gender discrimination.[15] Female movements expressed that Bill C-31 failed to eliminate all gender discrimination from the Indian Act, and in 2010 the Canadian government introduced Bill C-3 (the Act to Promote Gender Equality in Indian Registration).[15]

Bill C-3 amendments to the Act (Gender Equity in Indian Registration Act[16] - GEIRA) permitted Aboriginal women reinstated under subsection 6(2) to be eligible for 6(1) status.[17] 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.[17] 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)"[18] addresses gender-based inequalities in the Indian Act. Bill S-3 received royal assent in December 2017 and came in to full effect in August, 2019.[19][20]

Residential schools

In 1894 amendments to the Indian 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.[21]:254–255 The Canadian Indian residential school system subjected children to forced conversions, sickness, abuse and what has been described as an attempt at cultural genocide by the Truth and Reconciliation Commission.[22] 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.[23]

Bans on religious ceremonies ("Potlatch Law")

In 1885, an amendment to the Act banned the Potlatch ceremony of the West Coast peoples.[21]:636 The Potlatch ban drove traditional ceremonies underground. A similar amendment in 1895 banned the Sun 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.[24]

Restriction on access to the courts

Starting in the early 1900s, the Nisga'a First Nation started or attempted to start several legal proceedings to take control of their traditional territory.[25] A series of attempts were denied by the BC government or not pursued by the Canadian Government. A 1927 amendment (Section 141) forbid any first nation or band from retaining a lawyer for the purpose of making a claim against Canada, and further forbid them from raising money to retain a lawyer, on punishment of imprisonment.[26][27]

Tax exemption

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[28]

Relation to the Constitution

The rights exclusive to Indians in the Indian Act[5] 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.

Section 88

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.[29] 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),[30] 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.[31]

History of proposed and actual changes

List of precursors and amendments

Pre-Confederation

Post-Confederation

Attempts to repeal or replace

Numerous failed attempts have been made by Canadian parliamentarians to repeal or replace the Indian Act without success. Those changes that have been made have been piecemeal reforms, rather than sweeping revisions.

Failed major changes

Opt-outs

Since the 1990s, several pieces of legislation have been passed allowing individual bands to opt out of a particular section of the Indian 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.

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 practising their basic traditions.[45] 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".[46] The dance ceremony involved the giving away and exchange of blankets and horses; thus it breached Section 114 of the Indian Act.[38] As a result, Wanduta, an elder of the Dakota community, was sentenced to four months of hard labour and imprisonment on January 26, 1903.[47]

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.[48] 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.[48] It is estimated that between 1900 and 1904, 50 Aboriginal people were arrested and 20 were convicted for their involvement in such dances.[49] The Indian Act was amended in 1951 to allow religious ceremonies, including the "give-away dance".[38]

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.

In Canada (Canadian Human Rights Commission) v. Canada (Attorney General) (2018), the majority found that the Canadian Human Rights Tribunal's determination that the Indian Act did not violate the Canadian Human Rights Act was reasonable due to judicial deference.[50]

See also

Further reading

References

Citations

  1. ^ a b "Acts of the Parliament of the Dominion of Canada ... third session of the third Parliament, begun and holden at Ottawa, on the tenth day of February, and closed by prorogation on the twelfth day of April, 1876 : public general acts". p. 43.
  2. ^ Belanger 2014, p. 117.
  3. ^ Belanger 2014, p. 115.
  4. ^ John F. Leslie (2002). "The Indian Act: An Historical Perspective". Canadian Parliamentary Review. 25 (2).
  5. ^ a b c d e f g Indian Act, S.C. 1876, c. {{{chapter}}}, as amended by 1880, and 1894, and 1920, and 1927, and 1951, ([{{{link}}} Indian Act] at CanLII). October 22, 2013.
  6. ^ a b "Archived copy". Archived from the original on August 8, 2014. Retrieved August 1, 2014.CS1 maint: archived copy as title (link)
  7. ^ a b "1857 "Gradual Civilization Act", 20 Vic., c.26". For 'compulsory' text, see section 3.
  8. ^ a b c Branch, Legislative Services. "Consolidated federal laws of canada, Indian Act". laws-lois.justice.gc.ca.
  9. ^ "Chapter 3: Modernization, 1920–1981". A History of the Vote in Canada. Elections Canada. Retrieved May 9, 2014.
  10. ^ Lawrence 2003.
  11. ^ a b Lawrence 2003, p. 13.
  12. ^ "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" (PDF). caid.ca (pdf). Retrieved March 8, 2020.
  13. ^ a b Hanson 2009.
  14. ^ a b Furi & Wherret 2003
  15. ^ a b c d NWAC 1998
  16. ^ Branch, Legislative Services. "Consolidated federal laws of canada, Gender Equity in Indian Registration Act".
  17. ^ a b ICTI 2015
  18. ^ "An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général)". Parliament of Canada. Retrieved August 21, 2019.
  19. ^ "Are you applying for Indian status?". Indigenous and Northern Affairs Canada. Retrieved August 21, 2019.
  20. ^ a b Geens, Jennifer (August 15, 2019). "Indian status could be extended to hundreds of thousands as Bill S-3 provisions come into force". Canadian Broadcasting Corporation. Retrieved August 21, 2019.
  21. ^ a b "Canada's Residential Schools: The History, Part 1 Origins to 1939: Final Report of the Truth and Reconciliation Commission of Canada Volume 1" (PDF). National Centre for Truth and Reconciliation. Truth and Reconciliation Commission of Canada. 2015. Retrieved June 29, 2020.
  22. ^ "Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada" (PDF). National Centre for Truth and Reconciliation. Truth and Reconciliation Commission of Canada. May 31, 2015. Archived (PDF) from the original on July 6, 2016. Retrieved May 23, 2020.
  23. ^ CTV News (June 11, 2008). "Harper apologizes for residential school abuse". CTV. Archived from the original on July 9, 2008.
  24. ^ Caldwell, E.K. (1999). Dreaming the Dawn: Conversations with Native Artists and Activists. University of Nebraska Press. pp. 110–133.
  25. ^ Foster 2007, pp. 61-84.
  26. ^ "Archived copy". Archived from the original on August 8, 2014. Retrieved August 1, 2014.CS1 maint: archived copy as title (link)
  27. ^ Conspiracy of Legislation: The Suppression of Indian Rights in Canada CHIEF JOE MATHIAS and GARY R. YABSLEY, pp 35-36
  28. ^ Leslie J. Pinder. "The Indian Act Taxation Exemption – Beguiling Simplicity" (PDF).
  29. ^ Hogg, p. 598.
  30. ^ "Dick v. La Reine - SCC Cases (Lexum)". scc-csc.lexum.com. Retrieved January 22, 2019.
  31. ^ Hogg, pp. 598–599.
  32. ^ ""An Act respecting the civilization and enfranchisement of certain Indians" Statutes of Canada, 22 Vic. (1859) c.9" (PDF).
  33. ^ "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 Archived May 2, 2015, at the Wayback Machine
  34. ^ CHAP. 34. An Act to amend "The Indian Act, 1876.", Aboriginal Affairs and Northern Development Canada
  35. ^ a b c d e Report of the Royal Commission on Aboriginal Peoples Archived February 9, 2008, at the Wayback Machine, page 25
  36. ^ s.32 – Sale or Barter of Produce, Indian Act ( R.S., 1985, c. I-5 )
  37. ^ An Act further to amend "The Indian Act, 1880," S.C. 1884 (47 Vict.), c. 27, s. 3.
  38. ^ a b c d Backhouse 1999, p. 63.
  39. ^ a b c d e f Report of the Royal Commission on Aboriginal Peoples Archived June 24, 2003, at the Wayback Machine, page 24
  40. ^ a b c History of the Canadian Peoples, 1867–present, Alvin Finkel & Margaret Conrad, 1998
  41. ^ a b King, Thomas. The Truth about Stories. 2003
  42. ^ "Amendments to the Indian Band Election Regulations and the Indian Referendum Regulations" Archived June 10, 2008, at the Wayback Machine, November 20, 2000, Department of Indian and Northern Affairs.
  43. ^ "Gender Equity in the Indian Registration Act", June 28, 2012, Aboriginal Affairs and Northern Development Canada.
  44. ^ "Federal Court grants rights to Métis, non-status Indians".
  45. ^ Backhouse 1999, p. 68.
  46. ^ Backhouse 1999, p. 72.
  47. ^ Backhouse 1999, p. 79.
  48. ^ a b Backhouse 1999, p. 64.
  49. ^ Backhouse 1999, p. 69.
  50. ^ Note, Recent Case: Supreme Court of Canada Clarifies Standard of Review Framework, 132 Harv. L. Rev. 1772 (2019).
  51. ^ Leslie, John F. (2002). "The Indian Act: An Historical Perspective". Canadian Parliamentary Review. 25 (2).
  52. ^ "Canadian Parliamentary Review - Article". www.revparl.ca.