Indian Act

The Indian Act (An Act respecting Indians, French: Loi sur les Indiens), (the Act) is a Canadian Act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves.[1][2] First passed in 1876 and still in force with amendments, it is the primary document which defines how the Government of Canada interacts with the 614 First Nation bands in Canada and their members. Throughout its long history the Act has been an ongoing subject of controversy and has been interpreted in different ways by both Aboriginal Canadians and non-Aboriginal Canadians. The legislation has been amended many times, including "over twenty major changes" made by 2002.[3]

The Act is very wide-ranging in scope, covering governance, land use, healthcare, education, and more on Indian reserves. Notably, the original Indian Act does two things affecting all indigenous peoples in Canada:

  • It says how reserves and bands can operate. The Act sets out rules for governing Indian reserves, defines how bands can be created and spells out the powers of "band councils". Bands do not have to have reserve lands to operate under the act.[4]
  • It defines who is, and who is not recognized as an "Indian". The Act defines a number of types of Indian people who are not recognized as "registered" or "status" Indians and who are therefore denied membership in bands.[4]

The Act's existence is necessitated by the fact that First Nations (historically called "Indians") relate differently to the state because of inherited legal arrangements such as the Royal Proclamation of 1763 and various treaties, and because Canada's constitution specifically assigns Native issues to the federal, rather than provincial governments, by the terms of Section 91(24) of the Constitution Act, 1867. The Indian Act replaces any laws on the topic passed by a local legislature before a province joined Canadian Confederation, creating a definitive national policy on the subject. The Act is not a treaty; it is Canada's legal response to the treaties. Nevertheless, its unilateral nature, imposed on indigenous peoples by the Canadian government in contrast to the treaties, is itself a source of discontent among Native peoples in Canada.

Original rationale and purpose

"The great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion as speedily as they are fit to change."

John A Macdonald, 1887[5]

The Indian Act was first passed in 1876 as a consolidation of various laws concerning indigenous peoples enacted by the separate colonies of British North America prior to Canadian 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.[5] The Indian Act was passed 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 govern in relation to "Indians and Lands Reserved for Indians". It was an attempt to codify rights promised to Native peoples by British King George III in the Royal Proclamation of 1763, while at the same time enforcing Euro-Canadian standards of "civilization". The purpose of the act, as stated by its drafters, was to administer Indian affairs in such a way that Indian people would feel compelled to renounce their Indian status and join Canadian civilization as full members: a process called enfranchisement.

The idea of enfranchisement predated the 1876 version of Indian Act and survived in some form until 1985. Upon the introduction in 1857 by the Taché-Macdonald administration of the Gradual Civilization Act and until 1961, the enfranchisement process was compulsory for men of age 21 able to read and write English.[6]

Reserves, under this legislation, were islands within Canada to which were attached a different set of rights. "Enfranchisement" derives from the idea of "franchise", which has gradually been degraded as "vote". Indigenous people with the franchise 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. It was hoped through means of fiduciary duty voluntarily taken up by the Crown to preserve the Indian identity, but this was later vitiated by the compulsory enfranchisement scheme of the Gradual Civilization Act. The 1985 amendment to the Indian Act extinguished the idea of enfranchisement.

Other Languages
Deutsch: Indian Act
português: Indian Act
Simple English: Indian Act