Indian Act

Indian Act 1869

The first Indian Act was called The Act for the Gradual Civilization of the Indian (1869). The Indian Act came into effect in 1876 and is still in effect today. It is a piece of government legislation that defines who is an Indian (status/registered Indian) and governs the lands (reserves) set aside for Indians.

This Act is known as Canada’s racist and deceiving acts under Canadian Law.  There is a misconception as what’s in the act does not reflect on what the Number Treaties are about. 

It was the beginning of a psychological assault on Indian identity that would be escalated by the later Indian Act prohibitions on other culture practices such as traditional dances and regalia and by the residential school policy.

Under the Act, only First Nation men could seek enfranchisement. In order to do so, they had to be over the age of 21, able to read and write in either English or French, be reasonably well educated, free of debt, and of good moral character as determined by a commission of non-Aboriginal examiners (Report of the Royal Commission on Aboriginal Peoples, 1996). In 1933, an amendment to The Indian Act enforced assimilation even further. That amendment empowered the government to order the enfranchisement of First Nations members who met the qualifications set out in the act, even when they had not requested this. The era of Assimilation and Ethnocide policies begins in Canada.  

Indian Act 1876

The Government of Canada, introduced the first Indian Act in 1876, with the purpose of consolidating all prior federal legislation regarding Aboriginals into one single piece of legislation. The Act was designed to protect the land that First Nations still had left to them. But, under the act, title to the land still belonged to the Crown, which would administer the land on behalf of the First Nations people through the representative of the Minister of Indian Affairs (the Indian agent). A Reserve was deemed “Crown Land set aside for the use of a Band of Indians.”

It is the only legislation in the world designed for a particular race of people. It influences all aspect of a First Nations person’s life from birth to death. Indian Bands were created and Indian Agents became the intermediaries between First Nations people and the rest of the country. It is not about protecting rights. It is about control of a certain segment of society. That is all the Indian Act does.

Throughout its history, the Indian Act had three main principles:

  • to assimilate and civilize Indian people;
  • to manage Indian people and their lands; and
  • to define who was and was not an Indian.

“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 it was supposed to protect”. 

Harold Cardinal

Philosophy of the Indian Act

The Indian Act adopted an explicit vision of assimilation, in which Indians would be encouraged to leave behind their Indian status and traditional cultures and become full members of the broader Canadian society. The Act was to force individual Indians the right to seek Canadian citizenship by renouncing their rights and privileges under Treaty.

In this context, those that chose to stay as Indians were viewed as children or wards of the state, to which the government had a paternalistic duty to protect and civilize. This underlying philosophy was clearly expressed by The Hon. David Laird told the House of Commons that “they should not attempt to act in any way contrary to the views of the Indians, at least as far as their right to property were concerned”. He said this was “the policy of the Administration.”  However, Laird also said, “Indians must either be treated as minors or as white men.” The Deputy Superintendent of Indian Affairs said that “the legal status of Indians of Canada is that of minors with the Government as their guardians.”

“Our Indian legislation generally rests on the principle, that the aborigines are to be kept in a condition of tutelage and treated as wards or children of the State. …the true interests of the aborigines and of the State alike require that every effort should be made to aid the Red man in lifting himself out of his condition of tutelage and dependence, and that is clearly our wisdom and our duty, through education and every other means, to prepare him for a higher civilization by encouraging him to assume the privileges and responsibilities of full citizenship.”

Until aboriginals were self-sufficient, Laird reasoned, the government had a duty to ensure their well-being and to protect their interests. What inextricably binds Canada to First Nations is a thing called fiduciary duty: the fundamental responsibilities that stem from that Canadian-aboriginal partnership. With the Indian Act in 1876, Indians, treatied or not, became literal wards of the Canadian state; likewise, their lands, assets and mineral rights came under the trust of the federal government. As defined by Canada’s courts, the federal-Indian relationship is sui generis: unique, because it is a trust that exists at a deeper level than any business contract or public law, not quite like any other legal entity.

It is important to note the change in Aboriginal policy from the Royal Proclamation, 1763 (segregating from Canadian population as Indian Nations) to the Indian Act (Indians as wards of the state). The Indian Act maintained the Crown’s role as trustee of Indian interests, but had a very different view of that relationship. No longer were Indigenous groups viewed as autonomous quasi-nations within the broader Canadian political system, to which the Crown had an obligation to protect from abuse and encroachment from European colonial society. Moreover, many of the changes to the Act granted the government greater powers to move Indians onto Reserves and expropriate their lands for the purpose of non-Indian use. In the Act, a Band (No longer described as Nations or tribes) had to have its meeting in the presence of the Superintendent General or his Indian Agent. Authority was given to the Governor in Council to depose Chiefs. Provisions were added to allow the Superintendent General to exclude illegitimate children, those who were absent in a foreign country for more than five years without permission, and those who had taken scrip. Enfranchisement (getting the right to vote) for the purposes of assimilation was a constant feature of the Indian Act. If an Indian person became enfranchised (accepted the right to vote) they had to relinquish their Indian Status. The Act also allowed for the compulsory enfranchisement of any Indian who received a university degree or who became a doctor, lawyer or clergyman, regardless of whether they desired to lose their Indian status and gain full Canadian citizenship. 

The Indian Act is basically NOT the source of substantive or basic Indian rights (Indian Act is not a Treaty right); it merely tells how to administrate over and the eventual abolition of special rights for Indians. The effect was to transform independent Indigenous nations into physically marginalized and economically impoverished ‘bands’ and individuals into “wards of the state” or forced enfranchisement to become Canadian citizens without special rights as promised thru Treaties. Through the Indian Act, the federal government has denied First Nation peoples the basic rights that most Canadians take for granted. The Indian Act is not legal under international law.

The Royal Commission on Aboriginal Peoples (1996) called the Indian Act “the single most prominent reflection of the distinctive place of Indian peoples within the Canadian federation … marked by singular disparities in legal rights with Indian people subject to penalties and prohibitions that would have been ruled illegal and unconstitutional if they had been applied to anyone else in Canada.” [vol 1, p. 256-7]

Topic documents:

http://fnt2t.com/index.php/2019/06/07/tipi-talks-moving-beyond-the-indian-act-our-way/

http://fnt2t.com/index.php/law-development/

http://fnt2t.com/index.php/2018/09/05/moving-beyond-the-indian-act-constituting-our-way-forward/