Module 5: The Indian Act

As discussed in Module 1, there are a variety of historical and contemporary labels used to identify Indigenous peoples in Canada. While the label “Indian” is outdated, it is a term that still has legal significance. You will note that in this Module, the term “Indian” is used to describe either a legal classification (an Indigenous person subject to the Indian Act) or a historical reference to policies, territories, or groups that were historically subject to this label. While most Canadians understand that the term “Indian” is not appropriate for common usage due to its inaccurate historical context as an externally imposed title, the title still carries great political and legal significance for many First Nations, as will be outlined in this Module.

The earliest federal laws dealing directly and explicitly with First Nations people date from the middle of the nineteenth century and were enacted as part of the reserve policy of imperial and colonial governments. In 1850, there were two particularly important statutes passed. The first, An Act for the Better Protection of the Lands and Property of Indians in Lower Canada, established a commissioner to hold “Indian lands” in trust for “Indian” people but with full power to do what he wished with that property. Later that year, An Act for the Better Protection of Indians in Upper Canada furthered the protection of property occupied or enjoyed by Indians from trespass and injury by prohibiting settlers to interact with Indian lands unless the Crown approved. The latter Act also exempted Indians from taxation, judgment and seizure, as well as preventing the sale of liquor to Indians.

These pre-Confederation laws were drafted by colonial governments in congruence with the principles and parameters set forth in the Royal Proclamation 1763 dealing with the protection of Indian reserve lands from encroachment by non-Indigenous settlers. These provisions were designed to prevent further “great Frauds and abuses” through the confirmation of a clear process for future settlement and land transfers on reserve lands. The Royal Proclamation 1763 prohibited the issuance of patents to any lands claimed by a tribe unless the Indian title had first been extinguished by purchase or treaty. For the first time in the history of European colonization in the New World, the concept of Indigenous land titles was formalized.

The Royal Proclamation 1763 is considered to be one of the first written constitutional documents in Canada. The provisions dealing with Indians were later ruled by the Supreme Court of Canada to have created a distinct legal relationship between the federal government and the indigenous people in Canada. Thus, the Proclamation had unwittingly achieved two contradictory measures:

1. The indirect acknowledgement of the Indigenous peoples’ rights to land and self-government.
2. The establishment of a legal foundation for the federal government to impose a comprehensive regulatory regime dealing with Indians and lands reserved for Indians.

The federal government’s early response to the inherent contradictions was captured by the overarching goal of the assimilation of the Indian. Early European settlers viewed Indians as uncivilized and lacking basic entitlements to property and citizenship rights, and subsequent Indian policy has been directed to the often-stated goal of “civilizing the Indians.” Consider that the 1857 Civilization of Indian Tribes Act expressly declared that protective measures would only be in place until Indians were “sufficiently advanced education wise or capable of managing their own affairs.” At this point it was understood that the so-called civilized Indian or group of Indians would undergo enfranchisement, a process which entailed the elimination of any claims to Indian status and band membership.

A federalist state divides its governing authority between its central government and smaller political units. Canada, a federalist state, divides legislative authorities amongst the federal and provincial governments in its constitutional document. The result is that the government of Canada has exclusive power to legislate in certain fields. Section 91(24) of the Constitution Act, 1867 gives Canada the legislative responsibility over ‘Indians and Lands Reserved for the Indians.’ The federal government diligently exercised this jurisdiction through the continual drafting and implementation of a series of regulations and policies dealing with status Indians. In 1876, all related legislation and regulations were compiled into the legislation that is now referred to as the Indian Act.

From the beginning to today, the Indian Act has maintained its legislative emphasis on the “civilization and assimilation” of the Indians. This goal is confirmed by the following assertion from John A. Macdonald recorded in 1887:

The resulting programs and policies of assimilation and civilization of the Indians were and continue to be based upon colonial values and practices, not indigenous ones. The imposition of European laws and values has had a negative effect on Indigenous peoples’ governance practices and abilities. Many view federal Indian policy as controlling and productive of welfare and dependency, rather than self-sufficient communities. Although the Act has been amended several times since 1869, there are still concerns that the Act has significant negative ramifications for First Nations in Canada. The next section examines two important sections of the Indian Act that continue to significantly impact First Nations communities: leadership selection and membership restrictions.

One of the reasons that the Indian Act has negatively impacted First Nations communities is that it displaced forms of traditional Indigenous governance. The legislation provided a completely new system for leadership selection based on electoral politics. The Indian Act also disrupted traditional political communities. While Indigenous communities may have included vast geographical groupings, the Indian Act created new groupings called “bands,” which remain the only First Nations governments that are legally recognized under Canadian law. Therefore, division of Indigenous communities into bands separated traditional political, economic, and social communities with the creation of bands and reserves. Finally, the Act rigidly defined the band’s legislative authorities and powers. Traditional governments, and their former roles and responsibilities, were ignored in the face of this imposed band government regime.

The elective band council system, a foreign governance format, was first introduced in 1869. The Gradual Enfranchisement Act, passed two years after Canadian Confederation, directly interfered with traditional forms of governance and leadership selection. The federal legislation imposed a municipal style of “responsible” government. This new system required that all chiefs and councillors be elected by men in the community for three-year terms (later two years), with election terms and conditions to be determined by the Superintendent General of Indian Affairs as he saw fit. Indian women were not given the right to vote in band elections until 1951. The imposed elective band council system relied upon governance authority of individual band members living on individual reserves, not the collective will of the Nation as prior. There was no provision for traditional groupings beyond individual band levels, which served to further undermine national governance systems and broader national associations of Indians generally (RCAP 1996 vol. 1, “Indian Act,” 25-27).

First Nations were not easily persuaded to adopt the Gradual Enfranchisement Act by choice. They were aware if they voluntarily adopted the system, the Superintendent General of Indian Affairs would have full supervisory and veto power over governance decisions made by the band. They did not want to restrict themselves with the minor matters set out in the prescribed list of powers (RCAP 1996 vol. 1, “Indian Act,” 26). The 1880 consolidation of the Indian Act further eroded powers of the traditional band governments. Where the Superintendent General imposed the elective system on a particular reserve, traditional tribal leaders would no longer be permitted to exercise any powers at all. They would have to stand for election under the new Indian Act procedures, despite tribal or band traditions to the contrary (RCAP 1996 vol. 1, “Indian Act,” 32). Only recently has the Act included provisions for custom electoral codes to be established by Indian communities. First Nations leadership selection is currently carried out pursuant to one of three systems:

1. The Indian Act electoral system and its guidelines, Indian Band Election Regulations
2. A First Nations-directed community electoral system (sometimes referred to as a “custom election code”)
3. Self-government agreement, whereby the First Nation is no longer subject to any Indian Act regulations

First Nations currently holding their elections in accordance with the provisions of the Indian Act and its accompanying Indian Band Election Regulations may change the manner by which they select their leadership. Such a removal from the Indian Act election provisions requires the issuing of a ministerial order in accordance with subsection 74(1) of the Act, which must then be registered in accordance with the Statutory Instruments Act.

First Nations that conduct their elections according to their own custom code or traditional practices have their own set of procedures and rules governing their leadership selection. They are not subject to the election provisions of the Indian Act and its accompanying regulations. Furthermore, they are not required to follow the Indian Band Council Procedure Regulations in the conduct of band council proceedings. While band-designed codes could reflect traditional values and community practices, they must also include the following minimum elements:

• The size and composition of council.
• The method of choosing members of council, the majority of whom must be elected.
• The term of office, not exceeding five years.
• Voting procedures for council or members which are elected, and voting by secret ballot.
• Eligibility requirements to vote, run for office and nominate candidates.
• Filling vacancies on council.
• An appeal mechanism.
• Policy for removal from office of elected and non-elected members.
• Definition of corrupt electoral practices.
• An amending formula.

These restrictions heavily influence any code a band might design, and consequently, any band-produced electoral system tends to continue to heavily reflect Indian Act principles.

Once protected lands had been set aside for exclusive “Indian use and occupation,” it became necessary for administrative ease to define who was an Indian. Accordingly, the first statutory definition of “Indian” was passed in An Act for the Better Protection of the Lands and Property of the Indian in Lower Canada in 1850. The short-lived definition under this early version of the Act was quite broad and inclusive; it included all those with Indian blood and their descendents, non-Indians who married Indians living on the designated lands, and even people adopted in infancy by Indians. Interestingly, according to Canadian law, the first legal definition of Indian had nothing to do with whether a person was actually of Indian ancestry. This broad definition did not last very long. Within one year, amending legislation imposed a more restrictive definition that denied non-Indian men who married Indian women the right to acquire Indian status. However, non-Indian women who married Indian men could still gain Indian status. At this point in history, Indian status became associated primarily with the male line of descent (RCAP 1996 vol. 4, “Perspectives and Realities).

The concept of “enfranchisement” was introduced in 1857 through An Act to Encourage the Gradual Civilization of the Indian Tribes in the Province and to Amend the Laws Respecting Indians (or the Gradual Civilization Act). The Act’s operating premise was that by removing the legal distinctions between Indians and non-Indians through enfranchisement and by facilitating the acquisition of individual property by Indians, it would be possible in time to absorb Indians fully into so-called civilized society. An enfranchised Indian was, in effect, actually renouncing Indian status and the right to live on protected reserve land in order to receive the privileges available to the non-Indigenous colonial society. The Act contained property and monetary incentives to encourage Indians to leave tribal societies and seek enfranchisement.

In 1869, the first important piece of post-confederation legislation was passed, called The Gradual Enfranchisement Act. The Gradual Enfranchisement Act (1869) contained property and monetary inducements to encourage Indians to leave tribal societies and seek enfranchisement. The Act applied only to adult male Indians. According to section 3 of the Act, to be enfranchised an Indian had to be male, over the age of 21, able to read and write either English or French, reasonably well-educated, free of debt, and of good moral character as determined by a commissioner. The right to vote depended upon meeting the requirements in federal and provincial legislation in terms of property ownership. Thus, there was no automatic right to vote (RCAP 1996 vol. 4, “Perspectives and Realities”).

Learning Activity 5-3

Read the article 21 Things You May Not Have Known About the Indian Act. Below, comment on the whiteboard with what surprised you about the content.

The Gradual Enfranchisement Act (1869) went further than other legislation in its assimilative purposes and in marginalizing Indian women. For the first time, Indian women were accorded fewer legal rights than Indian men in their home communities. Women who married Indian men from other communities now lost their band membership in their home community and were also precluded from voting.

In 1951, the Indian Act was completely revised. The provisions dealing with status, membership and enfranchisement were significantly modified in a way that further disadvantaged women and children. The status provision became more elaborate and spelled out in great detail how individuals could or could not be entitled as an Indian for federal government purposes. The previous mention of Indian blood was replaced by the notion of “registration,” with a strong emphasis on the male line of descent. The result was that many people of Indian ancestry and culture who had been involuntarily enfranchised, or who had been accidentally or intentionally deleted from lists over the years, were no longer eligible for registration (RCAP 1996 vol. 4, “Perspectives and Realities).

Section 6 of the Indian Act had two categories of status Indians: 6(1) and 6(2). Both have full status, but the difference is in their lineage. 6(1) members have two parents who are, or are eligible for, status registration. 6(2) members have only one parent who is eligible for status registration, or have a grandmother who has lost status prior to 1985 but has had status reinstated since 1985 amendments. See Figure 5-1.

Figure 5-1: Effects of Bill C-31 on Status Indians through Marriage. Source: Nicole Wegner, course author. Permission: Courtesy of course author Nicole Wegner, Distance Education Unit (DEU), University of Saskatchewan.

What Figure 5-1 demonstrates is that two generations of non-status marriage would result in full loss of status registration potential, regardless of a person’s involvement in their First Nations community.

• 6(1) + 6(1) = 6(1)
  • If two 6(1) status Indians marry, their children will legally be 6(1).
• 6(2) + 6(2) = 6(1)
  • If two 6(2) status Indians marry, their children will legally be 6(1).
• 6(1) + no status = 6(2)
  • If a 6(1) marries a non-status, their children will be 6(2).
• 6(2) + no status = no status
  • If a 6(2) marries a non-status, their children will not receive status.

In 1971, two First Nations women, Jeanette Laval and Yvonne Bedard who had lost their Indian status through marriage, unsuccessfully challenged s12(1)b the Indian Act on the basis that it contravened the equality provisions of the Canadian Bill of Rights. In 1978, Sandra Lovelace took her case to the United Nations Human Rights Committee. She argued that Canada was violating the International Covenant on Political and Civil Rights, which it signed in 1976. The UN Human Rights Committee agreed with Lovelace and held that Canada was in violation of Article 27 because it denied her cultural right to reside in her ethnic community. Lovelace succeeded in embarrassing the Canadian government into instituting a 1980 policy that allowed bands to suspend 12(1)b.

In response to the changing political climate, the federal government introduced Bill C-31, An Act to Amend the Indian Act, which was passed in 1985. The bill amended the status and membership provisions of the Act to remove outright gender discrimination in the legislation. However, despite the promise of the legislation, the result continues to be ongoing litigation over membership and status, and serious internal conflicts and divisions among First Nations people; the negative impacts of Bill C-31 on the individuals and Indian communities continue today in many communities (Chatworthy 2001).

While Bill C-31 provided opportunity for women to apply to have their lost Indian status reinstated, the process contained many hurdles. The first hurdle was that the onus was placed upon individuals to apply, and the costs associated with the application process (research and documentation fees, travel to centres with an INAC office) were born by First Nations women in attempting to have their status officially recognized. Another problem was that the federal government under-estimated the number of applicants that would apply, causing very slow processing for applications. Between 1985-1990, the status Indian population in Canada rose by 19%, and between 1985-2000 INAC had granted 114,512 people with status reinstatement (INAC 2001)

The 1985 Indian Act amendments under section 10 enabled First Nations to enact their own membership or citizenship codes. While status was still determined by INAC, bands could now opt to create their own membership code and criteria. This altered previous Indian Act requirements that linked status to band membership. At the discretion of the federal government, band councils could now take control of their own membership by following the new procedures and rules set out in the amended Indian Act. Although Indian bands had been granted the authority to determine their own membership codes, they continued to generate membership codes that were remarkably similar to the provisions of the Indian Act. The amendments protect (“grandfather”) all those who previously held band membership, but removed INAC’s authority to intervene on any new membership considerations to the band list. The Bill C-31 amendments also granted band councils the power to regulate which band members and non-members are permitted to live on reserve, and which services would (or would not) be provided to non-members on reserve. For reinstated women, this has resulted in some additional challenges as growth in community membership requires band councils to administer extra services and programs. (Furi and Wherett, 2003). Another consideration for reinstated women was that should their band control the membership code (rather than INAC), Bill C-31 applicants could be excluded from the membership list.

In 2010, Bill C-3 was introduced to address the ongoing gender discrepancies in the Indian Act amendments. The bill was passed in 2011. However, this amendment still did not fully address gender disparities: those born prior to September 4, 1951 whom used their maternal lineage to trace Indigenous heritage were denied status while those who used their paternal lineage were not.

In 2015, the Superior Court of Quebec reached a decision in the Deschenaux case, litigation filed by three members of the Abenakis of Odanak First Nation that challenged the Indian registration provisions under the Indian Act. The challenge raised two issues related to the Indian Act registration clauses. The first was that cousins of the same family had received different treatment in the acquisition of status depending on the sex of their Indian grandparent. The second was that siblings (born between 1951 and 1985) were also treated differently, particularly discriminating against children born out of wedlock to status women, whereby children born out of wedlock to status males were still able to receive status regardless of whether the second partner was non-Indian. The Superior Court case found that several paragraphs and one specific subsection relating to Indian registration (under section 6 of the Indian Act) violated equality provisions under the Canadian Charter of Rights and Freedoms (section 15) (INAC). This court case prompted the federal government to once again address gender inequality under the Indian Act.

In 2016, Bill S-3 was introduced to Parliament that addressed some, but not all, of the gender elimination in the Act. In November 2017, the Senate voted in favour of Bill S-3. While no timeline has been set by the government for implementing this policy, the bill is intended to allow those born prior to September 4, 1951 who trace their lineage maternally to be eligible for status reinstatement.

The essential flaws of the Indian Act have long been acknowledged by Indigenous and non-Indigenous people. First Nations object to its inherent paternalism, while government officials acknowledge its limitations as a framework for modern relations with First Nations. Although it has mainly served as an assimilative tool, the Indian Act has also provided certain protections. These conflicting roles, together with differing views of federal authorities and First Nations on the nature and scope of the inherent right of Indigenous self-government under section 35 of the Constitution Act, 1982, have intensified the complexities of reforming the Indian Act.

The Royal Commission on Aboriginal Peoples identified the need to negotiate and reconcile Indigenous governance within Canada as one key step towards resolving the concerns of Indigenous peoples. RCAP sets out objectives for building a new relationship between Indigenous and non-Indigenous peoples based on mutual respect, recognition and sharing. The Commission concluded that the Aboriginal peoples of Canada have an inherent right to self-government based on—amongst other important historic documents such as treaties and constitutional statutes confirming provincial entry into Canada—the wording of the Royal Proclamation of 1763. Canadian case law provides recognition of Indigenous and treaty rights for governance. In response to the constitutional guarantee and the explicit direction from the courts, the role of Parliament must be to identify and implement means to reconcile the constitutional rights of Indigenous peoples. In spite of this, the major issues remain of whether self-government has been extinguished and if not what is its scope.

The Royal Commission on Aboriginal Peoples proposed that inherent law-making powers of Indigenous people should be recognized on the following basis:

1. There is a core jurisdiction where Aboriginal people can make laws without federal or provincial approval. This includes matters of vital concern to the life and welfare of the community that, at the same time, do not have a major impact on adjacent jurisdictions and do not rise to the level of overriding national or regional concerns.
2. There is a peripheral jurisdiction where Aboriginal people can make laws, but agreements with the Crown are necessary for their implementation.
3. Where there is a conflict between Aboriginal law and a federal law, the federal law will override the Aboriginal law only if there is a compelling and substantial reason.
4. The Charter of Rights and Freedoms can be used by Aboriginal community members to control the activities of the Aboriginal governments (RCAP 1996 vol. 2, “Governance,” 128-9).

Considering the negative history of the Indian Act, one might question why the legislation is not simply abolished. However, outright abolishment of the Indian Act has been greatly resisted by First Nations community because, despite its paternalistic and colonialist history and effects, the Indian Act is one of few formal statutes that outlines and affirms federal government responsibility to First Nations peoples.

In 1969, the Statement of the Government of Canada on Indian Policy was introduced, more commonly known as the White Paper 1969. Prime Minister Pierre Trudeau envisioned eliminating any legislation that was discriminatory and proposed under this policy to eliminate the Indian Act. The effects of this would include: the elimination of Indian status; the dissolution of the Department of Indian Affairs (within 5 years); the conversion of reserve land into private property that could be sold by bands or their members; transfer federal responsibility for “Indian” persons to provinces to align with service provision given to other Canadians; appointment of a commissioner to resolve outstanding land claims and gradually eliminate treaties; the provision of funding for economic development. The development of this policy was inspired by the 1966-67 Hawthorn Report that had surveyed the socio-economic conditions of First Nations peoples in Canada and found that due to years of poor government policies, particularly the residential school system, First Nations persons struggled with participation in the contemporary economy. However, despite the inspiration for the White Paper 1969, many Indigenous groups were upset as the policy failed to address the actual concerns their leadership voiced during consultations.

Many Indigenous peoples viewed the policy as another step towards assimilation because it failed to recognize First Nations’ special rights, failed to deal with outstanding violations of treaties, and failed to encourage Indigenous participation in Canadian federal policy practice. One of the most vocal opponents was Harold Cardinal, leader of the Indian Association of Alberta. Cardinal authored The Unjust Society which saw the White Paper 1969 as a form of cultural genocide. The Indian Association of Alberta rejected the White Paper 1969 and released a document titled Citizens Plus, also known as the Red Paper. This inspired a new wave of Indigenous activism against the White Paper 1969, as leaders and groups emphasized that the most important issues were treaties, lands, and well-being for future Indigenous generations.

The official failure of the White Paper 1969 came in 1970 when a Supreme Court Case (Calder v. British Columbia) ruled that Aboriginal title to lands existed prior to colonization and recognized Aboriginal title to lands that had not been lawfully extinguished. This opened up new prospect for land claim negotiations and condemned the White Paper 1969 due to the recognition of Aboriginal title in Canadian law.

A contemporary challenge involving the Indian Act is its incompatibility with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This General Assembly declaration is not legally binding in international law. The UNDRIP was adopted in 2007 by a majority of states with the exception of Australia, Canada, New Zealand, and the United States. In 2016, Canada retracted its objector status, although noted that while Canada supported the doctrine in principle, there were a number of legal and Constitutional impediments to full implementation.

Articles 3 and 4 of UNDRIP call for the right of self-determination of Indigenous peoples, which stands in direct contradiction to the Indian Act system. This is largely why the 2016 Minister of Justice Jody Wilson-Raybould has noted that UNDRIP is unworkable within the Canadian legal system and explanatory in the ongoing debate about how to move out of the Indian Act system in a way that is beneficial for all parties involved.

The Indian Act continues to be a complex statute that has impeded First Nations peoples’ work toward achieving true sovereignty: “today the Indian Act is the repository of the struggle between Indian peoples and colonial and later Canadian policy makers for control of Indian peoples’ destiny within Canada. The marks of that struggle can be seen in almost every one of its provisions” (RCAP 1996 vol. 1, “The Indian Act,” 5).

For First Nations, the original assumption that they are partners in the exercise of sharing the land of Canada and in building a society based on areas of exclusive and shared sovereignty has continued almost unchallenged since the Royal Proclamation of 1763. The federal and provincial governments, which have benefited from the use and exploitation of the lands and resources of this continent, must make radical shifts in their thinking about inherent rights of the original peoples. In order to advance the First Nations vision, the federal and provincial Crown will have to move away from past assumptions about their authority and supremacy, and move toward a true partnership.

The Indian Act was designed as a policy statute to determine the legal rights and statuses of indigenous persons. It is viewed as a double-edged sword as it both secures the rights of Indian persons and also has a legacy of cultural control. The policies of enfranchisement were oppressive and assimilationist and much discontent has developed due to this nature of the Act.

Because of contradictions set up within the Royal Proclamation of 1763, there are conflicting values present within the Indian Act. The Act recognizes and preserves the special status, rights and land entitlements of registered Indian persons, but it also sets up an institutional framework for the control of these persons and their lands.

The Act has implemented governance policies that shifted Indigenous governance away from traditional practices to a Westernized, federal-government controlled system of band governance. The Act placed the power and authority in the Department of Indian Affairs rather than control of local governance by bands and First Nations. The Act also set out an institutional framework that dictates how registration and membership operates within Indian communities. Often, this framework led to involuntary enfranchisement of Indian persons, particularly women.

A major bias present within the Indian Act was policies involving enfranchisement through marriage. For example, an Indian woman who married a non-Indian man (non-First Nations or non-status) would lose her status. Additionally, a woman who married a man from any other band would lose membership and voting rights in her own band. Children’s Indian status became tied to patrilineality. This was addressed in 1985 revisions of the Indian Act, but many women and children lost status due to this involuntary enfranchisement.

The Commission concluded that the Indigenous peoples of Canada have an inherent right to self-government based on—amongst other important historic documents such as treaties and constitutional statutes confirming provincial entry into Canada—the wording of the Royal Proclamation of 1763. According to RCAP, the government has a responsibility to recognize these rights and work towards building relationships based not on the paternal practices of the Indian Act, but upon partnership between the two groups.