oSection 91(24) of the BNA Act Gives the federal government control over: “Indians and lands reserved for Indians.”
o“In the event of any conflict between any regulation made by the Superintendent General and any rule or regulation made by the band, the regulations made by the Superintendent General shall prevail.” - The Indian Act
Facts about the Indian Act oIt was made by Parliament and not by Indian people. oBecause Parliament is supreme in Canada, it can therefore change the Act without consultation with Indians. oIndian peoples' weapons against revision without their input is through provincial and national Indian organizations. oThe Act is basically not the source of substantive or basic Indian rights; it merely tells how to administrate. oThe Act has, however, been used through the courts, to erode substantive Indian rights. oThe Act does, however, have certain provisions which preserve Indian rights. oThere have been various other Federal Acts dealing with Indians since the early 1800's. oAll 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 non- native 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 oLegal 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 oSTATUS 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. oENFRANCHISED - 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 oTREATY 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 re- apply. 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 half- breed 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 on- going 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, dis- enfranchise his wife and kids as well) This amendment was in force between 1920- 1922 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 oIndian 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 oBan on Indian ceremonies is dropped oBan on raising money for political purposes dropped oConsumption of liquor in public places is permitted oRetains the old objective of assimilating Natives into mainstream Canadian society. oInuit 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 oCanadian Status Indians gain the right to vote in Federal Elections. (Note: This is in the lifetime of many of Thunderbird's gentle readers!) oOttawa 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 non- Native 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.
1969 WHITE PAPER ON INDIAN POLICY oCalled for an end to any special status for Native people. oIts aim was to quickly culturally assimilate Native people into mainstream Canadian society. oThe Indian Act would be repealed. oGovernment management on reserve lands would be dismantled. oAll federal responsibilities for Native people would end.
BACKLASH FROM THE NATIVE COMMUNITY (and Canadian Society was quick and furious) oNative leaders accused the government of cultural genocide and a "thinly disguised program of extermination through assimilation." oWhite Paper was quickly withdrawn by then Prime Minister Pierre Trudeau and Indian Affairs Minister Jean Cretien. oNative 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 self- government. 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. oThe 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.
oOn 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. oThe proposed amendments would also give off- reserve band members voting rights in electing band councillors. oFirst 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.
oThey 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. oRoberta 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. oThe 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. oThe new Act does not acknowledge the distinctiveness of each nation. oThe new Act will basically extinguish existing Aboriginal and Treaty Rights. oIt 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.
oIt will remove tax immmunity on reserves. oIt will allow the various levels of government to phase out special funding and collect income tax. oIt will allow band enforcement offers the right to enter homes without reasonable grounds. oIt 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). oMaintains Minister of Indian and Northern Affairs legislative control. oMinister will retain power in key areas such as election appeals. oCreates a new legislative basis for the Minister to meddle in financial affairs of bands. oCreates 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… oElections 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. oLegal 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
oPowers and Authorities: The legislation includes procedures for the passing of bylaws, which is an infringement on Native rights to self- determination. 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. oFinancial 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.) oNo 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? oNatives 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. oAll 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. oBands cannot sell or otherwise dispose of reserve lands without first surrendering it to the Crown.
oSettlement 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. oInfighting, 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. oStandards 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.