Indian Act 1876
Facts about the Indian Act
o It was made by Parliament and not by Indian people.
o Because Parliament is supreme in Canada, it can therefore
change the Act without consultation with Indians.
o Indian peoples' weapons against revision without their input is
through provincial and national Indian organizations.
o The Act is basically not the source of substantive or basic Indian
rights; it merely tells how to administrate.
o The Act has, however, been used through the courts, to erode
substantive Indian rights.
o The Act does, however, have certain provisions which preserve
Indian rights.
o There have been various other Federal Acts dealing with Indians
since the early 1800's.
o All these Acts down to the present one have been consistent in
their goals of assimilation, integration and eventual abolition of
reserves and of special rights for Indians."
Evolution of the Indian Act
1850
An Act for the Better Protection of the Lands and Property of Indians
in Lower Canada.
By this is established a commissioner to hold the Indians lands in
trust for Indian people but with full power to do what he wishes
with that property. (Introduction of the Indian Agent)
An Act where the Better Protection of Indians in Upper Canada
imposition, the property occupied or enjoyed by them from
trespass and injury. By this no one can deal with Indian lands
unless the Crown approves. The Act also gives exemption to
Indians from taxation, judgment and seizure as well as preventing
the sale of liquor to Indians. At this point in time the Government's
main concern is to protect the Indians and their lands from abuse
only until such time as they became "civilized or assimilated"
Evolution of the Indian Act
1858
The Civilization of Indian Tribes Act expressly makes
assimilation of Native people its goal. It is declared
that Indians who are "sufficiently advanced education
wise or capable of managing their own affairs" will be
enfranchised.
The Management of Indian Lands and Property Act
declares the Commissioner of Crown Lands to be the
Chief Superintendent of Indian Affairs. He has the
power to dispose of lands reserved for the Indians
which they have released or surrendered.
CONSTITUTION ACT 1867
Assigned
to
Parliament
legislative
jurisdiction over "Indians and Lands
reserved for the Indians"; 2 separate
powers cover status and civil rights on
the one hand and Indian lands on the
other.
Evolution of the Indian Act
1868
The first federal act was passed in 1868 drawing heavily on earlier
legislation. Department of the Secretary of State Act appoints the
Secretary of State to be the Superintendent General of Indian
Affair, who has the power to control and manage the lands and
property of Natives in Canada.
Note: the modern Indian Act can be traced to the Department of
Secretary of State Act and an Act for the Gradual Enfranchisement
of Indians and the Better Management of Indian Affairs. The latter
statute introduces the concept of local government to the
reserves.
Subsequent legislation promoted assimilation into non-Native society:
Native status was seen as a transitional state, protecting Natives
until they became settled on the land and acquired European
habits of agriculture.
ENFRANCHISEMENT 1869
Enfranchisement was the most common of the legal processes by which
native peoples lost their Native status under the Indian Act.
The term was used both for those who gave up their status by choice, and for
the much larger number of native women who lost status automatically
upon marriage to non-native men. Only the men were entitled to take with
them a share of band reserve lands and funds, but both groups lost their
treaty and statutory rights as Native peoples, and their right to live in the
reserve community.
The right to vote, often confused with "enfranchisement" was only one of the
supposed advantages of loss of status before Native people acquired the
federal vote in 1960. From its first enactment in 1857 up to at least the
1960s, voluntary enfranchisement was the cornerstone of Canadian
Indian policy. By enfranchising, a person was supposed to be consenting
to abandon Native identity and communal society (with its artificial legal
disabilities) in order to merge with the "free," individualistic and nonnative majority.
INDIAN ACT 1876
"Instead of implementing the treaties and
offering much needed protection to
Indian rights the Indian Act subjugated to
colonial rule the very people whose rights
if was supposed to protect".
- Harold Cardinal
Indian Act 1876
Canada’s Indian Act is enacted which attempts to
consolidate many Indian laws and makes Indians
wards of the government.
They are placed in a different legal category from all other
Canadians; Act gives individual Natives the right to
seek Canadian citizenship by renouncing their rights
and privileges. In other words, assimilation into
mainstream Canadian society and the loss of culture
and all rights associated with a culture are the main
themes.
The Act governs all aspects of Native life including the
denial of the right to vote in an election.
Indian Act 1876
o Legal definition of an ‘Indian’ is contained in
Indian Act. It was later amended in 1951.
o "A person who is pursuant to this Act registered
as an Indian or is entitled to registered as an
Indian." In general, such persons were those
whose ancestors were defined as Indians at the
time of the first Federal Act of 1868. Also
known as "aboriginals" - defined (in
Constitution) as "dwelling in any country before
the arrival of the later European colonists."
Indian Act 1876
o STATUS INDIAN - A Status Indian is a person defined as an Indian
by the Indian Act and has been registered as an Indian by having
h/her name either on a Band list or a General list, and having
certain rights, restrictions and benefits under the Indian Act.
Sometimes referred to as a Treaty Indian. Roughly 360,000 Status
Indians in 1987.
o ENFRANCHISED - Those Native people who were fortunate to be
standing in line when the Indian Agents came to count heads in
the late Nineteenth Century were enfranchised (recognized) as
Status Indians. Others who were away for various reasons were
never counted, and their descendants have paid the price ever
since.
Indian Act 1876
o TREATY INDIAN - In 1871, treaties became signed documents
between Indian leaders and the federal government that
designated reserve lands to be owned and occupied, plus hunting
rights and a few minor allotments. The ownership of Indian
reserves bestowed by the treaties had little to do with the status
rights granted in the Indian Act. Many Indian bands were missed
in treaty signing, particularly in B. C. and Quebec; thus these
bands do not have designated reserves. Registered Indians who
have reserves can legally be called "status-treaty Indians". Many
Native peoples in B.C. and Quebec are legally recognized as
Status, Non-Treaty Indians. The terms cause great confusion
among Native Nations who interchange the terms ‘treaty’ and
‘status’. Approximately 60-70% of status Natives live on reserves.
Enfranchisement
In 1920, the Enfranchisement Amendment to the Indian
Act was added in which individuals (usually men) or
entire bands by a simple majority vote could surrender
their status as Indians in return for the federal vote and
becoming Canadian citizens. If a man 'voluntarily' gave
up his status, his wife and children were also
automatically dis-enfranchised.
Note: This was often done in the form of "good ole boy
coersion'. The Indian Agent would come calling on the
family bringing liquor. He'd sit with his "Indian Friend",
get him drunk, and have him sign on the dotted line.
The family was kicked off the reserve within days.
Enfranchisement
Women who married non-Native men and any children
from that union lost their Status. These women were
allowed to apply for re-enfranchisement through the
passing of Bill C-31 in 1985 (an amendment to the
Indian Act). Bill C-31 gave all first generation children
of these marriages and Natives who were not counted
and who now wished to regain status, the right to reapply.
Men who married non-Native women could keep their
status, and their white wives, in turn were
automatically granted Indian Status.
1982 - CONSTITUTION ACT
The new Constitution Act is affirmed and re-patriated from Britain. It
includes The Charter of Rights and Freedoms. Section 35 of the
Constitution Act states: "The existing aboriginal and treaty rights
of Aboriginal peoples of Canada are hereby recognized and
affirmed." Section 37, states that federal and provincial members
should meet within one year to directly address issues affecting
Native people.
Section 25 of the Charter of Rights and Freedoms ensures that
‘existing’ Aboriginal rights are not adversely affected by the
Charter of Rights and Freedoms particularly those recognized by
the Royal Proclamation.
POWER OF THE INDIAN
AGENTS
This is by no means a complete list of the
powers held by the Indian Agents.
They had extraordinary administrative and
discretionary powers to enforce the
Indian Act and control every aspect of
Indian life.
Agents displaced traditional Aboriginal leaders so as to institute a
new way of living consistent with the intentions of the government.
In order to ensure this, Clause 25 of the Act established the
government's guardianship over Indian lands.
Often used the distribution of rations as a weapon to impose federal
authority on the Native population. Facing hunger and destitution,
Natives were forced to bow to the control of the central
government.
Full Justice of the Peace powers: Arresting Officer; Prosecutor and
Judge. (Democracy at work!)
Powers to determine who qualified as a Status Indian. They did the
original count that was so inaccurate and unfair that it continues
to reverberate to this day. Enforcing the "blood quantum" - to
qualify as an Indian, a person born after 1868 had to have at least
one quarter Indian blood for status recognition.
Responsible for the enforced signing of land treaties and other agreements.
Native Wills were held by State; upon the death of an Indian, Indian Agents
dispersed property and valuables (often into their own pockets!)
Powers to determine who could live on reserve and then enforced the moving
of Indians to reserve lands.
Made the decisions on best uses of reserve lands.
Powers to decide what territory would be reserve lands (how much acreage,
where).
Banned Liquor (yet allowed drinking when it suited his purpose).
Powers to enforce the stripping of even the most basic rights for Native
women. If they left reserve they could not return.
Forced Native children into Residential Schools and turned a blind eye to the
decades of atrocities meted out on them. Children were often kidnapped
while their parents were away and imprisoned in these schools. 100,000
Native children are imprisoned.
Responsible for appropriating Native lands when required. For
example, without consultation a vast tract of Kahnawake
(Mohawk) land was appropriated for the construction of the St.
Lawrence Seaway (1954)
Two power dams opposite the Akwesasne Reserve (Haudenosaunee)
are also built and in a few years the land and water are polluted.
Animals and people sicken and die.
Deposed Traditional Chiefs and replaced them with duly elected
'puppet' chiefs. The Elections which were usually rigged in favour
of government interests accomplished two things: (a) It imposed
the British Parliamentary system on Native governments, and (b)
effectively undermined the considerable influence traditional
chiefs had with their people
Interesting Historical Notes
1. The Indian Act formed much of the basis for
the introduction of oppressive apartheid
policies against Black people in South Africa
which lasted for decades.
2. In 1969, all Indian Agents were withdrawn
from reserves across Canada ending the
government's overt paternalistic presence on
First Nations lands.
Major Amendments to the
Indian Act
Over the years there have been many
amendments to the Indian Act, most of
which were enacted to further oppress
Indian people and remove basic rights
accorded every other Canadian.
1884 - Ceremonies Banned
Outlawed the Thirst Dance (Sun Dance); Potlatch
(Chinook trading language, meaning ‘to give’)
in British Columbia. Potlatch is the equivalent
of title deeds and acts of succession.
"Just as the eldest child of a reigning monarch
cannot succeed to the British throne without
sanction of the law, neither could the
succession of a chief be recognized [without
proper ceremony]."
(Tom Molloy, The World Is Our Witness, pg. 25).
1887 - Indian Agent Determine
Who Is An Indian
"The Superintendent General, may, from time to
time, upon the report of an officer, or other
person specially appointed by him to make an
inquiry, determine who is or who is not a
member of any band of Indians entitled to
share in the property and annuities of the band;
and the decision of the Superintendent General
in any such matte shall be final and conclusive,
subject to an appeal to the Governor in
Council."
1888 - Half-Breeds
"No half-breed in Manitoba who has shared in the distribution of halfbreed lands shall be accounted an Indian; and no half-breed head
of a family, except the widow of an Indian or a half-breed who has
already been admitted into a treaty, shall, unless under very
special circumstances, which shall be determined by the
Superintendent General or his agent, be accounted an Indian or
entitled to be admitted into any Indian treaty; and any half-breed
who has been admitted into a treaty shall, on obtaining the
consent in writing of the Indian Commissioner or in his absence
the Assistant Indian Commissioner, be allowed to withdraw
therefore on signifying in writing his desire so to do....signification
in writing shall be signed by him in the presence of two witnesses,
who shall certify the same on oath before some person authorized
by law to administer the same; and such withdrawal shall include
the minor unmarried children of such half-breed."
1895 - Reserves Belong to the
Crown
"No reserve or portion of a reserve shall be sold alienated or leased
until the same has been released or surrendered to the Crown for
the purposes of the Act; provided that the Superintendent-General
may lease, for the benefit of any Indian, upon his application for
that purpose, the land to which he is entitled without the same
being released or surrendered."
(Translation: Without ownership of land, Indigenous peoples are not
able (to this day) to develop reserve lands because they have
been unable to, for example, obtain bank loans as they have no
collateral. As a result below-poverty standards of living are ongoing today.)
1910 - No Tresspassing
"If the possession of any lands reserved or
claimed to be reserved for the Indians
withheld, or if any such lands are adversely
occupied or claimed by any person, or if any
trespass is committee thereon, the possession
may be recovered, in an action at the suit of His
Majesty on behalf of the Indians, or of the
declaration, relief, or damage claimed."
1911
Government Can Take What It
Wants, When It Want
Allowed portions of reserves to be
expropriated by municipalities for roads,
railways or other public purposes without
Native consultation.
1920
Enfranchisement Amendment
Gave Native Men the right to vote, and become
Canadian citizens, among other things if they
give up their Indian status.
(Translation: Dis-enfranchise the man, disenfranchise his wife and kids as well)
This amendment was in force between 19201922 and 1933-1951. It was very unpopular
and a complete failure as a result.
1920
Enfranchisement Amendment
"On the report of the Superintendent General that any Indian, male or
female, over the age of twenty-one years is fit for enfranchisement, the
Governor in Council may by order direct that such Indians shall be and
become enfranchised at the expiration of two years from the date of such
order or earlier if requested by such Indian, and from the date of such
enfranchisement the provisions of the Indian Act and of any other Act or
law making any distinction between the legal rights, privileges, disabilities
and liabilities of Indians and those of His Majesty's other subjects, shall
cease to apply to such Indian or to his or her minor unmarried children, or,
in the case of a married male Indian, to the wife of such Indian, and every
such Indian and child and wife shall thereafter have, possess and enjoy all
the legal powers, rights and privileges of His Majesty's other subjects, and
shall no longer be deemed to be Indians within the meaning of any laws
relating to Indians."
Education
"Day schools [established] in any Indian
reserve for the children of such reserve."
Beware Women!
"Any Indian woman who marries any person other than an Indian, or
a non-treaty Indian, shall cease to be an Indian in every respect
within the meaning of this Act, except that she shall be entitled to
share equally with the members of the band to which she formerly
belonged, in the annual or semi-annual distribution of their
annuities, interest moneys and rents: Provided that such income
may be commuted to her at any time at ten years purchase, with
the approval of the Superintendent General.“
(Translation: Patriarchy, Gender Bias, Racism abound!)
NOTE: The true meaning of these amendments were quite simply,
"Get the Women, Get the Children, Reduce the Bloodline." Many
Native men were deliberately plied with alcohol by unscrupulous
Indian Agents who sat with them in "good ole boy comradeship"
until they signed on the dotted line.
1924
o Indian Act amended to include the Inuit people.
o "The Superintendent General may appoint a
person or persons to administer the estate of
any deceased or insane Indian, and may make
such general regulations and such orders in
particular cases as he deems necessary to
secure the satisfactory administration of such
estates." (Translation: Indian Agents)
1927
Indians Banned from Raising Money for
Legal Purposes To Fight Their Persecution
"Every person who, without the consent of the Superintendent
General expressed in writing, receives, obtains, solicits or requests
from any Indian any payment or contribution or promise of any
payment or contribution for the purpose of raising a fund or
providing money for the prosecution of any claim which the tribe
or band of Indians to which such Indian belongs, or of which he is
a member, has or is represented to have for the recovery of any
claim or money for the benefit of the said tribe or band, shall be
guilty of an offence and liable upon summary conviction for each
such offence to a penalty not exceeding two hundred dollars and
not less than fifty dollars or to imprisonment for any term not
exceeding two months."
1951 - MAJOR AMENDMENT
Yolk of Oppression Starts to be Lifted
o
o
o
o
Ban on Indian ceremonies is dropped
Ban on raising money for political purposes dropped
Consumption of liquor in public places is permitted
Retains the old objective of assimilating Natives into
mainstream Canadian society.
o Inuit specifically are excluded from the Indian Act. ("A
reference in this Act to an Indian does not include any
person of the race of aborigines commonly referred to
as Eskimos." - wording also included in a 1956
amendment)
1960
o Canadian Status Indians gain the right to
vote in Federal Elections. (Note: This is in
the lifetime of many of Thunderbird's
gentle readers!)
o Ottawa begins to phase out Residential
Schools (the last one closes 1988)
1985
BILL C-31 - MAJOR AMENDMENT
TO CONSTITUTION ACT
Repeals the enfranchisement provisions and changes the
registration system so that entitlement was no longer
based on sexually discriminatory rules. Among other
things, Bill C-51, treats men and women equally; treats
children equally whether born in or out of wedlock and
whether they are natural or adopted; prevents anyone
from gaining or losing status through marriage.
In other words, Native women who have married nonNative men now have the right to retain their Native
status, and to pass their status on to their children. This
also gives them the right to return to their reserves.
Many meet with opposition from reserve band councils.
Other Information
1969 WHITE PAPER ON
INDIAN POLICY
o Called for an end to any special status for
Native people.
o Its aim was to quickly culturally assimilate
Native people into mainstream Canadian
society.
o The Indian Act would be repealed.
o Government management on reserve lands
would be dismantled.
o All federal responsibilities for Native people
would end.
BACKLASH FROM THE NATIVE COMMUNITY
(and Canadian Society was quick and furious)
o Native leaders accused the government of cultural
genocide and a "thinly disguised program of
extermination through assimilation."
o White Paper was quickly withdrawn by then Prime
Minister Pierre Trudeau and Indian Affairs Minister
Jean Cretien.
o Native people issued their own response (1970) called
the "RED PAPER", calling for, among other things,
Indigenous land title, and self-government.
MEECH LAKE ACCORD JUNE, 1990
Holding an eagle feather for spiritual strength,
Cree, Elijah Harper, NCP member of the
Manitoba legislature, voted 'no' to a procedural
vote which required unanimity to extend
discussion of the Meech Lake Accord
recognizing Quebec as a ‘distinct society’.
Native leaders saw nothing in the Accord that
advanced their quest for self-government and
recognition as a distinct society.
CHARLOTTEOWN ACCORD 1992
In the Charlottetown Accord constitutional
process, Indigenous and government
leaders held constitutional talks on a
proposal that recognized Indigenous
peoples'
inherent
right
to
selfgovernment.
Ultimately,
Canadians
rejected the accord in a national
referendum.
FIRST NATIONS GOVERNANCE ACT
(now on hold, but for how long......)
In 2001, Federal Indian and Northern Affairs Minister, Robert D. Nault
launched a national consultative initiative with First Nations
communities and leaders, entitled "Communities First: First
Nations Governance", the aim of which was to create a
referendum that would repeal the 126-year-old Indian Act and
replace it with new Act. The new incarnation of the Indian Act with
its new name is now underway.
o The First Nations Governance Act would require Indian bands to
develop a system to choose their leaders and to develop clear
rules regarding how they spend their money. The proposed
changes will also make bands more accountable for the money
they spend.
o On the other hand, they'll be able to buy land,
borrow or invest money, and enter into
contracts. Indian Affairs Minister Robert Nault
said the proposed legislation would provide an
interim step toward self-government and is not
meant to replace existing legislation.
o The proposed amendments would also give offreserve band members voting rights in electing
band councillors.
o First Nations would no longer be exempt from
the Charter of Rights and Freedoms.
Problems
Some of the country's 600 aboriginal
groups have been angered by the
proposed changes, which they say came
without sufficient consultation.
o They say that being subject to the Charter of Rights and Freedoms
could open bands to a flood of complaints before the Canadian
Human Rights Commission for discrimination against employees
and people who receive services on reserves AND NATIVE
WOMEN.
o Roberta Jamieson, chief of the Six Nations reserve, says that the
proposed legislation is, "little more than a new rule book." It
doesn't deal with the problems of poverty, healthcare, education,
or housing which, she says, are the issues that really need to be
tackled.
o The ideal would be no longer to have a law, but at the present
time, a judicial framework remains necessary to ensure that
Canada respects the rights of Native peoples.
o The new Act does not acknowledge the distinctiveness of each
nation.
o The new Act will basically extinguish existing Aboriginal and Treaty
Rights.
o It will impose municipal government on reserves which will be
limited to by-law making functions and will be subject to provincial
law - patriarchy is alive and well.
o It will remove tax immmunity on reserves.
o It will allow the various levels of government to phase out special
funding and collect income tax.
o It will allow band enforcement offers the right to enter homes
without reasonable grounds.
o It will implement "Fee Simple Title" where land can be used for
collateral for loans, sold or leased (risk here is the loss of land,
and leasing to non-Native interests).
o Maintains Minister of Indian and Northern Affairs legislative
control.
o Minister will retain power in key areas such as election appeals.
o Creates a new legislative basis for the Minister to meddle in
financial affairs of bands.
o Creates new authority for the Minister to oversee a national
registry of band laws; the government already has a dismal record
in this regard.
What Else Is Being Criticized
in the New Version…
o Elections and Leadership Selection: The new legislation
does not take into account the rights of First Nations
peoples to elect their leaders and chiefs according to
traditional Indigenous customs and hierarchy.
o Legal Standing and Capacity: Many First Nations can
already enter into contracts, sue, be sued and create
corporations. The legislation of this right further
incorporates the First Nations into the Canadian
political framework, without consideration of their
inherent right to self-government
o Powers and Authorities: The legislation includes procedures for the
passing of bylaws, which is an infringement on Native rights to selfdetermination. First Nations want to develop their own system of justice
and legal institutions. Also, Native enforcement officers require training,
which the community cannot afford. It is recommended that the penalties
collected from the enforcement of bylaws go directly to Native legal
institutions.
o Financial and Operational Accountability: Restrictions on First Nations'
spending could inhibit the amount of money spent on Native interests.
Also, Native communities feel they can govern their own financial
institutions and that further government interference will undermine
Native self-government. (Note: This has proven not to be the case on at
least one-third of reserves, where Native patrilineal interests have erupted
into nepotism and corruption.)
o No Provision for Women to Take An Active and Equal Role in the
Negotiations. Native women’s groups have been told on a ministerial level
that the reality of the plight of Native women was too complex to be
changed, that it would take too long to examine it. The consultations for
the new version of the Act end in two and half years. Once again, by this
attitude, Native women have been marginalized and their continued
abuse and subjugation at the hands of male-dominated band councils
tacitly agreed to by the government!
What is Left?
o Natives do not own title to reserve lands. This is being
challenged. On March 2, 2002, the Haida people of
Haida Gw'ai (Queen Charlotte Islands) filed suit
claiming title to the Islands, surrounding water, gas and
oil resources.
o All personal property of Natives or Bands on reserve
are not subject to mortgage or legal seizure. This
makes it difficult for bands to finance on-reserve
development since they cannot obtain bank loans.
o Bands cannot sell or otherwise dispose of reserve
lands without first surrendering it to the Crown.
o Settlement of land claims on a case by case basis is enormously
expensive and time consuming for both sides. There lacks a cohesive
agreement among Native Nations themselves to forge a comprehensive
program on behalf of Native people as regards land claims and other
Indigenous rights. The Assembly of First Nations, for example, does not
speak for all Indigenous people.
o Infighting, leadership struggles, power-over mentality, jealousy and
resentment, the usual stuff that is pervasive among non-Native political
institutions points Native organizations as well, as more and more Native
groups drift away from their essential selves and their circular-based,
consensus-building teachings. Yet, distrust runs deeply not only with
opposing governmental and other authoritative forces, but within the
Nations themselves. To become a third level of government requires ALL
Native people to be onside and singing one glorious song.
o Standards of living on many reserves (i.e., Davis Inlet) are far below even
minimalist standards for the average Canada. Lack of clean water,
electricity, paved roads. Despair is rampant as the forgotten Indigenous
people of the north struggle with spousal abuse, drug and alcohol
problems eight times the national average Suicide among teens (15-17)
is five times the national average.