Indian Act

The act was introduced in 1875 by the Liberal government of Alexander Mackenzie as a consolidation of various laws concerning Indigenous peoples enacted by the separate colonies of British North America prior to Confederation, most notably the Gradual Civilization Act passed by the Parliament of the Province of Canada in 1857 and the Gradual Enfranchisement Act of 1869. Reserves, under this legislation, were islands within Canada to which were attached a different set of Indigenous rights. "Enfranchisement" derives from the idea of "franchise", which has gradually been degraded as "vote". Indigenous people with the franchise became official citizens of Canada (or British subjects before 1947), were allowed to vote for representatives, were expected to pay taxes, and lived "off-reserve". By contrast, groups of people who lived on a reserve were subject to a different set of rights and obligations. One needed to descend from an Indian to be allowed to live on a reserve. The tenure of land in a reserve was limited to the collective, or tribe, by virtue of a Crown protectorate. Interactions between enfranchised citizens and Indians were subject to strict controls; for example, the enfranchised were forbidden by the Royal Proclamation of 1763 to traffic in alcohol or land with Indians. The Crown (in this case the Indian Department) hoped, by means of fiduciary duty that it voluntarily took on, to preserve Indian identity. But later the government of the Province of Canada conceived of the compulsory enfranchisement scheme of the Gradual Civilization Act. The 1985 amendment to the Indian Act extinguished the idea of enfranchisement, although by then Status Indians were Canadian citizens by birth. == Definitions ==

"Reserve" Under the section entitled "Reserves" in the Indian Act, reserves are said "to be held for use and benefit of Indians. • having a father or husband who becomes enfranchised • having at the age of 21 a mother and paternal grandmother who did not have status before marriage • being born out of wedlock to a mother with status and a father without. These provisions interfered with the matrilineal cultures of many First Nations, whereby children were born to the mother's clan and people gained their belonging in the clan from her family. Often property and hereditary leadership passed through the maternal line. In addition, the 1876 Indian Act maintained that Indigenous women with status who married status Indigenous men would, in the event of divorce, be unable to regain their status to the band they were originally registered in. This occurred as a result of the act's enforcement of the patrilineal descent principle required to determine an individual's eligibility for Indian status. Meanwhile, the Supreme Court of Canada ruled that the Indian Act was not discriminatory, as the pair gained the legal rights of white women at the same time they lost the status of Indian women, in a parallel to R. v. Drybones. In 1981, Sandra Lovelace, a Maliseet woman from western New Brunswick, forced the issue by taking her case to the United Nations Human Rights Committee, contending that she should not have to lose her own status by her marriage. The Canadian law was amended in 1985. == 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. 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. 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. Amended in 1985 through Bill C-31, section 12 was removed and status was reinstated to those affected. The 1985 amendments led to the repatriation of status for many Indigenous women and their children but did not guarantee acceptance into an Indian band. A decade later, nearly 100,000 people had their status reinstated while bands gained control of membership responsibilities that were previously administrated by the Department of Indian Affairs. However, the children of reinstated women are subject to registration under subsection 6(2). This action has ultimately violated the United Nations' International Covenant on Civil and Political Rights through the discriminatory practices of the Indian Act; this law discriminates against Indigenous women and their descendants in their right to express their culture. In addition, this decision was also made based on the 2007 Supreme Court of British Columbia case of Sharon McIvor and her son, Jacob Grisner, that have been waiting over a decade of a verdict of their case. The UNHRC's decision has determined that Bill C-31 has violated Articles 3 and 26 of the International Covenant, in concurrence of Article 27. As well, in Article 2(3)(a) of the decision, the Government of Canada must provide effective remedy. Under the United Nations' International Covenant on Civil and Political Rights, the Government of Canada is required in 180 days to fulfill these requirements: to ensuring that paragraph 6(1)(a) of the Indian Act is understood in a way that allows registration of those who were not previously registered under the distinction of paragraph 6(1)(a) on the basis of sex and gender, account for the ongoing discrimination of Indigenous peoples in Canada of gender and sex in the Indian Act and to avoid future discrimination similar to this Bill.—GEIRA) permitted Aboriginal women reinstated under subsection 6(2) to be eligible for 6(1) status. 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. 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. With it, "most of the sex inequalities have been removed from the Indian Act." But "there is still other discrimination in place ... involving enfranchisement and adoption." 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. 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. 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. Bans on religious ceremonies ("Potlatch Law") In 1885, an amendment to the act banned the Potlatch ceremony of the West Coast peoples. 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. A series of attempts were denied by the B.C. government or not pursued by the Canadian government. A 1927 amendment (Section 141) forbade any First Nation or band from retaining a lawyer for the purpose of making a claim against Canada, and further forbade them from raising money to retain a lawyer, on punishment of imprisonment 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. == Relation to the Constitution ==

The rights exclusive to Indigenous in the Indian Act 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. 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 issues and even limiting Aboriginal rights. == History of proposed and actual changes ==

List of precursors and amendments Pre-Confederation • 1839: Act for the Protection of the Indians in Upper Canada • 1850: An Act for the Protection of the Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury (13&14 Vic. c.74) • 1850: An Act for the Protection of the Indians in Lower Canada from imposition, and the property occupied or enjoyed by them from trespass and injury" (13&14 Vic. c.42) • 1857: Act to Encourage the Gradual Civilization of Indian Tribes in this Province, and to Amend the Laws Relating to Indians (20 Vic. c.26) through voluntary enfranchisement Post-Confederation • 1868: 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 was created. • 1869: 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 introduced changes to the enfranchisement process. • 1874: An Act to amend certain Laws respecting Indians, and to extend certain Laws relating to matters connected with Indians to the Provinces of Manitoba and British Columbia extended westward the effect of Canadian legislation regarding Indians. • 1876: An Act to amend and consolidate the laws respecting Indians (the original Indian Act) was passed. • 1879: An Act to amend The Indian Act, 1876 amended the act to allow "half-breeds" to withdraw from treaty; to allow punishment for trespassing on reserves; to expand the powers of chief and council to include punishment by fine, penalty or imprisonment; and to prohibit houses of prostitution. • 1880: An Act to amend and consolidate the laws respecting Indians passed. • 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. Further amended to prohibit the sale of agricultural produce by Indians in Prairie Provinces without an appropriate permit from an Indian agent. • 1884: Amended to force attendance of Indian youth in school. Amended to prevent elected band leaders who have been deposed from office from being re-elected. • 1884: Amended to prohibit the potlatch and Tamanawas dances. • 1894: Amended to remove band control of non-indigenous living on reserve. This power now rested exclusively in the hands of the Superintendent-General of Indian Affairs. • 1896: Amended to extend the ban on potlatch and Tamanawas dances to outlaw all dances, ceremonies and festivals that involved the wounding of animals or humans, or the giving away of money or goods. • 1905: Amended to allow Aboriginal people to be removed from reserves near towns with more than 8,000 residents. • 1906: Amended to allow 50% 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 to 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 used it for farming or pasture. • 1920: Amended to make it mandatory for Aboriginal parents to send their children to Indian residential school (Indian Act, 1920 s.10(1)). Also amended to allow the Department of Indian Affairs to ban hereditary rule of bands. Under the previous versions of the Indian Act, persons who had received these land allocations were not entitled to be registered as status Indians. In the Senate of Canada the bill was debated by the newly appointed Senator James Gladstone in his maiden speech on August 12, 1958. Gladstone's speech was the first time the Blackfoot language from the Kainai Nation had been used in parliamentary proceedings. The bill received royal assent on August 13, 1958. • 1961: Amended to end the compulsory enfranchisement of men or bands. • 1970: A judgement in R. v. Drybones, [1970] S.C.R. 282, rules section 94(b) inoperable for violating Section 1(b) of the Canadian Bill of Rights. • 1971: Parliament voted to repeal section 94 in its entirety. • 1985: Indian Act amended to void the enfranchisement process. Amended to allow status Indian 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 qualifies for 6–2 (half) status. If that child grows up and in turn married a non-status person, the child of that union would be non-status. If a 6–2 marries a 6–1 or another 6–2, the children revert to 6–1 status. Blood quantum is disregarded, or rather, replaced with a "two-generation cut-off clause". Under amendments to the Indian Act (Bill C-31), Michel Band members have individual Indian status restored. No provision made in Bill C-31 for the restoration of status under the Band enfranchisement provision that was applied to the Michel Band. According to Thomas King, around half of status Indians are currently marrying non-status people, meaning this legislation accomplishes complete legal assimilation in a matter of a few generations. • 2011: Gender Equity in Indian Registration Act (Bill C-3) amended provisions of the Indian Act that the Court of Appeal for British Columbia found to be unconstitutional in the case of McIvor v. Canada. The bringing into force of Bill C-3 on January 31, 2011, ensured that eligible grandchildren of women who lost status as a result of marrying non-status men became entitled to registration (Indian status). As a result of this legislation approximately 45,000 persons became newly entitled to registration. • 2012: Jobs and Growth Act (Bill C-45). • 2013: 200,000 Métis and 400,000 non-status Indians are included in the federal responsibility for Indians after a 13-year legal dispute. • 2016: Changes to the Jobs and Growth Act (Bill C-45). • 2017: Gender-based inequalities addressed (Bill S-3). 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 • The Statement of the Government of Canada on Indian policy or "the White Paper" (1969) would have abolished reserves and all other markers of "special status" and assimilated Indians fully into Canada. Failed due to First Nations' opposition (e.g. "the Red Paper") and withdrawn in 1971. • The Manitoba Framework Agreement – a 1994 agreement between the Assembly of Manitoba Chiefs and the Minister of Indian Affairs, it created a regional pilot project to dismantle the Department of Indian Affairs' regional structure in Manitoba. It was deemed unsuccessful and discontinued in 2004. • The Indian Act Optional Modification Act (Bill C-79) – introduced in 1996, it would have devolved certain powers to bands, but was opposed by most bands as being too limited and not respecting the principle of Aboriginal self-government as endorsed by the Royal Commission on Aboriginal Peoples. It died in parliament at the start of the 1997 election. • The First Nations Governance Act (Bill C-7) – introduced in 2002, it would have allowed bands to amend their own leadership selection processes and devolved some other powers. It was opposed by most bands and died in Parliament in 2003. • Senate Proposals (several) – the most recent is An Act for the Recognition of Self-Governing First Nations (Bill S-216) initiated by Senator Gerry St. Germain in May 2006 which would have allowed bands to write their own constitutions, subject to vetting by the Auditor General. Died in Parliament in September 2007. 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. • First Nations Land Management Act (FNLMA)—enacted in 1999, it allowed opt-outs of 34 land-related sections of the Indian Act and allows bands to create their own codes on land use and environmental stewardship. Fourteen bands originally signed on, by 2013 there were over 30 bands involved. Repealed and replaced by the Framework Agreement on First Nation Land Management Act. • First Nations Fiscal Management Act (FNFMA)—enacted in 2005, allows bands to issue their own bonds. • First Nations Oil and Gas and Moneys Management Act (FNOGMMA)—enacted in 2005, allows bands to opt to take over the management of funds held in trust for them by the Crown, or to assume management of oil and gas resources on their reserves. • First Nations Commercial and Industrial Development Act (FNCIDA)—enacted in 2006, has allows a band to request the federal government to create regulations for a particular industry on reserve that mirror those of the surrounding province. Amended in 2010 by the First Nations Certainty of Land Title Act (FNCLTA) which creates a registry similar to a provincial land titles registry for on-reserve real estate. • Framework Agreement on First Nation Land Management Act (FAFNLMA) — enacted in 2022, it replaced the FNLMA in order to reduce the barriers for First Nations taking land management powers on reserves. == 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. 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". The dance ceremony involved the giving away and exchange of blankets and horses; thus it breached Section 114 of the Indian Act. As a result, Wanduta, an elder of the Dakota community, was sentenced to four months of hard labour and imprisonment on January 26, 1903. 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. 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. It is estimated that between 1900 and 1904, 50 Aboriginal people were arrested and 20 were convicted for their involvement in such dances. The Indian Act was amended in 1951 to allow religious ceremonies, including the "give-away dance". 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. ==See also==