Indian Act

The Indian Act ("An Act respecting Indians"), R.S., 1985, c. I-5, is a Canadian statute that concerns registered Indians (that is, First Nations peoples of Canada), their bands, and the system of Indian reserves. The Indian Act was enacted in 1876 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 legislate in relation to "Indians and Lands Reserved for Indians". The Indian Act is administered by the Minister of Indian Affairs and Northern Development.

The Indian Act defines who is an "Indian" and contains certain legal disabilities and legal rights for registered Indians. The rights exclusive to Indians in the Indian Act are beyond legal challenge under of the Canadian Charter of Rights and Freedoms. Section Twenty-five of the Canadian Charter of Rights and Freedoms in particular, provides that the charter shall not be interpreted as negating specific aboriginal treaties and their corresponding rights and freedoms. [Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 631.] Section Thirty-five of the Constitution Act, 1982 also recognizes and affirms the legal validity of aboriginal treaties.

Status

An Indian whose name is in the Indian Register established by the act is said to have Indian status or treaty status. An Indian who is not registered is said to be a non-status Indian. Prior to 1985 status was often lost in ways that are now considered unfair. In Attorney General of Canada v. Lavell (1974), these discriminatory laws were upheld despite arguments made under the Canadian Bill of Rights. The act was nevertheless amended in 1985 to restore status to people who had lost it in one of these ways, and to their children. Before the amendment, the ways in which status were lost were:

* marrying a man who was not a Status Indian
* enfranchisement (until 1960, an Indian could vote in federal elections only by renouncing Indian status)
* having a mother and paternal grandmother who did not have status before marriage (these people lost status at 21)
* being born out of wedlock of a mother with status and a father without.

Section 88

Section 88 of the Indian 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. [Hogg, p. 598.] 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), the Supreme Court "changed its mind about the scope of s. 88." Section 88 could now protect provincial laws relating to primary Aboriginal laws and even limiting Aboriginal rights. [Hogg, pp. 598-599.]

Amendments

* 1881: Amended to make officers of the Indian Department, including Indian Agents, legal justices of the peace, able to enforce regulations. The following year they were granted the same legal power as magistrates. [http://www.ainc-inac.gc.ca/ch/rcap/sg/sg25_e.html Report of the Royal Commission on Aboriginal Peoples] , page 25] Further amended to prohibit the sale of agricultural produce by Indians in Prairie Provinces without an appropriate permit from an Indian agent. This prohibition is, as of 2008, still included in the Indian Act though not enforced. [ [http://laws.justice.gc.ca/en/ShowDoc/cs/I-5/bo-ga:s_32::bo-ga:s_34//en?page=5&isPrinting=false#codese:32 s.32 – Sale or Barter of Produce] , Indian Act ( R.S., 1985, c. I-5 )]
* 1884: Amended to prevent elected band leaders who have been deposed from office from being re-elected.
* 1885: Amended to prohibit religious ceremonies (such as potlatches) [ An Act further to amend "The Indian Act, 1880," S.C. 1884 (47 Vict.), c. 27, s. 3.]
* 1894: Amended to remove band control of non-natives living on reserve. This power now rested exclusively in the hands of the Superintendent-General of Indian Affairs. [http://www.ainc-inac.gc.ca/ch/rcap/sg/sg24_e.html Report of the Royal Commission on Aboriginal Peoples] , page 24]
* 1905: Amended to allow aboriginal people to be removed from reserves near towns with more than 8,000 residents."History of the Canadian Peoples, 1867–Present," Alvin Finkel & Margaret Conrad, 1998]
* 1906: Amended to allow 50 per cent of the sale price of reserve lands to be given to band members, following the surrender of that land.
* 1911: Amended to allow municipalities and companies expropriate portions of reserves, without surrender, for roads, railways, and other public works. Further amended to allow a judge to move an entire reserve away from a municipality if it was deemed "expedient." These amendments were also known as the Oliver Act.
* 1914: Amended to require western Indians to seek official permission before appearing in "aboriginal costume" in any "dance, show, exhibition, stampede or pageant."
* 1918: Amended to allow the Superintendent-General to lease out uncultivated reserve lands to non-aboriginals if the new lease-holder would use it for farming or pasture.
* 1920: Amended to allow the Department of Indian Affairs to ban hereditary rule of bands. Further amended to allow for the involuntary enfranchisement (and loss of treaty rights) of any status Indian considered fit by the Department of Indian Affairs without the possession of land previously required for those living off reserve. Repealed two years later, but reintroduced in a modified form in 1933.
* 1927: Amended to prevent anyone (aboriginal or otherwise) from soliciting funds for Indian legal claims without a special license from the Superintendent-General. This effectively prevented any First Nation from pursuing aboriginal land claims.
* 1930: Amended to prevent a pool hall owner from allowing entrance to an Indian who "by inordinate frequenting of a pool room either on or off an Indian reserve misspends or wastes his time or means to the detriment of himself, his family or household". The owner could face a fine or a one-month jail term.
* 1936: Amended to allow Indian agents to direct band council meetings, and to cast a deciding vote in the event of a tie.
* 1951: Amended to allow the sale and slaughter of livestock without an Indian Agent permit. Status women are allowed to vote in band elections. Attempts to pursue land claims, and the use of religious ceremonies (such as potlatches) are no longer prohibited by law. Further amended for the compulsory "enfranchisement" of First Nations women who married non-status men (including Metis, Inuit and non-status Indian, as well as non-aboriginal men) thus removing their status and that of any children from the marriage.
* 1961: Amended to end the compulsory "enfranchisement" of men or bands.
* 1985: Amended to allow First Nations women the right to keep or regain their status even after "marrying out", and to grant status to the children (but not grandchildren) of such a marriage. This amendment was debated in Parliament as Bill C-31. Under this amendment, full status Indians are referred to as 6-1. A child of a marriage between a status (6-1) person and a non-status person would qualify for 6-2 (half) status, but if his/her child in turn married another 6-2 or a non-status person, the child will be non-status. If a 6-2 marries a 6-1 or another 6-2, their children will revert to 6-1 status. Blood quantum is disregarded, or rather, replaced with a "two generation cut-off clause".King, Thomas. The Truth about Stories. 2003] According to Thomas King, around half of status Indians are currently marrying non-status people, meaning this legislation will accomplish complete legal assimilation in a matter of a few generations.
* 2000: Amended to allow band members living off reserve vote in band elections and referendums. [ [http://www.ainc-inac.gc.ca/nr/prs/s-d2000/00168bkd_e.html Amendments to the Indian Band Election Regulations and the Indian Referendum Regulations] , November 20, 2000, Department of Indian and Northern Affairs.]

Case law

In R. v. Jim (1915), the British Columbia Supreme Court found that Aboriginal hunting on Indian reserves should be considered federal jurisdiction under both the Constitution and the Indian Act. The case involved provincial game laws.

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 being one of the few in which the Bill of Rights prevailed.

In Corbiere v. Canada (1999), voting rights on reserves were extended under Section Fifteen of the Canadian Charter of Rights and Freedoms.

Discriminatory definition issues

Bonita Lawrence (2003) discusses a feminist position on the relationship between federal definition and Indian identity in Canada. Until 1985, section 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" [Lawrence, Bonita. (2003) "Gender, Race, and the Regulation of Native Identity in Canada and the United States: An Overview" Hypatia 18.2 pages 3-31 p13] . Under Section 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, Section 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 modifications in 1951.

She discusses the struggles of Jeannette Corbiere Lavell and Yvonne Bedard in the early 1970s, two women who had both lost their status for marrying white men. The Canadian Supreme Court 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. Finally, in 1981, Sandra Lovelace, a Maliseet woman from Tobique—Mactaquac forced the issue by taking her case to the United Nations Human Rights Committee. The Canadian law was amended in 1985 [Lawrence (2003) p13] .

References

External links

* [http://laws.justice.gc.ca/en/I-5/ Department of Justice of Canada – Indian Act]
* [http://www.bloorstreet.com/200block/sindact.htm Henderson's Annotated Indian Act (By a Toronto lawyer working on behalf of Aboriginal groups)]
* [http://www.ainc-inac.gc.ca/qc/csi/ind_e.html The Indian Act Past And Present] – Department of Indian and Northern Affairs
* [http://www.ainc-inac.gc.ca/pr/ra/rpi/3-2_e.html Entitlement to Indian Status under Bill C-31] – Department of Indian and Northern Affairs