Indian Act
Note: On this page when referring to anything regarding government legislation and laws – the word “Indian” is used.
The Indian Act, enacted in 1876 has since been amended, allows the government to control most aspects of Indigenous life: Indian status, land, resources, wills, education, band administration and so on. Also: In 1977, the Canadian Human Rights Act was passed. Section 67 exempted it from being applied to provisions in the Indian Act, largely understood to be an admission that the Indian Act would not meet human-rights standards. That section was repealed in 2008. |
FACTS ABOUT THE INDIAN ACT (Assembly of First Nations) “It is the only legislation in the world designed for a particular race of people. It was made by Parliament and not by Indian people. Because Parliament is supreme in Canada, it can therefore change the Act without consultation with Indians. Indian peoples’ weapons against revision without their input is through provincial and national Indian organizations. The Act is basically not the source of substantive or basic Indian rights; it merely tells how to administrate. The Act has, however, been used through the courts, to erode substantive Indian rights. The Act does, however, have certain provisions which preserve Indian rights. There have been various other Federal Acts dealing with Indians since the early 1800’s. All 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.” |
“Sadly, our history with respect to the treatment of Aboriginal people is not something in which we can take pride. Attitudes of racial and cultural superiority led to a suppression of Aboriginal culture and values. As a country, we are burdened by past actions that resulted in weakening the identity of Aboriginal peoples, suppressing their languages and cultures, and outlawing spiritual practices. We must recognize the impact of these actions on the once self-sustaining nations that were disaggregated, disrupted, limited or even destroyed by the dispossession of traditional territory, by the relocation of Aboriginal people, and by some provisions of the Indian Act. We must acknowledge that the result of these actions was the erosion of the political, economic and social systems of Aboriginal people and nations.”
Statement of Reconciliation, 1998 |
1858
The Civilization of Indian Tribes Act expressly makes assimilation of Indian people its goal. It is declared that Indians who are “sufficiently advanced in terms of education or capable of managing their own affairs will be enfranchised (the legal process of eliminating Native status). The Management of Indian Lands and Property Act declares the Commission 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. |
(INCLUDING SOME MAJOR AMENDMENTS)
1850 An Act for the Better Protection of the Lands and Property of Indians in Lower Canada. A commissioner is established to hold Indian lands in trust for Indian people, but with full power to do what he wishes with that property. An Act where this provides the Better Protection of Indians in Upper Canada. The property occupied or enjoyed by Indians 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 become “civilized or assimilated.” |
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 Affairs 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. |
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. |
POWERS 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.
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 Indigenous lands. |
1887 – Indian Agent Determine Who Is A Native
“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 matter 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 Trespassing
“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 committed 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 wants!
Allowed portions of reserves to be expropriated by municipalities for roads, railways or other public purposes without Native consultation. Manifest Destiny! |
1920 – Enfranchisement Amendment
Enfranchisement is the legal process for terminating a person’s Native status under the Indian Act. Native Men, for example, were given the right to vote, and become Canadian citizens, among other things, if they gave up their Indian status. “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.” This amendment was in force between 1920-1922 and 1933-1951. It was very unpopular and a complete failure as a result. Education Beware Women! NOTE: There is no section of the Act that, upon analysis, translates to direct patriarchal imposition, gender bias and as a result declares its racism. |
1924
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1927 – Natives 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 –
Ban on Indian ceremonies is dropped.
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1960
Canadian Status Indians gain the right to vote in federal elections. (Note: This is in the lifetime of many of my gentle readers!) Ottawa begins to phase out Residential Schools (the last one closes 1988) |
1985 – BILL C-31 – MAJOR AMENDMENT TO THE INDIAN ACT
Changes to the registration system in the Indian Act is repealed so that entitlement was no longer based on sexually discriminatory rules. Among other things, Bill C-31, 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. Important changes were made to Canada’s Indian Act on June 28, 1985, when Parliament passed Bill C-31, an Act to Amend the Indian Act. Bill C-31 brought the Act into line with the provisions of the Canadian Charter of Rights and Freedoms. The three principles that guided the amendments to the Indian Act were:
In addition to bringing the Indian Act into accord with the equality provisions of the Canadian Charter of Rights and Freedoms, Bill C-31 expanded band control over membership and community life, enabling Indian people to take an important step toward self-government.
The federal government continues to maintain the “Indian Register”. Those who were recorded in the Indian Register when the amendments came into force continue to be recorded there. Those whose status was to be restored or who are eligible to be registered for the first time must apply to the Registrar to be recorded. Two categories of persons were excluded from registration under the C-31 provisions:
Interesting Note: The following is from the book, “Inconvenient Indian” by Thomas King, 2012“Let’s say that you have a brother, an identical twin. Both you are Status, full-blooded Indians. You marry a full-blood Native woman who is Status, but your brother marries a full blood Native women who is non-Status. You have a daughter. Your brother has a daughter. both girls are status. Two girls grow up, fall in love and marry. Your daughter marries a full-blood Status Native Man. Your brother’s daughter marries a full-blood non-Status Native man. Your daughter and your brother’s daughter have boys. Watch closely. Nothing up my sleeve. Your daughter’s son, who is a full-blood Native, has Status. Your brother’s daughter’s son, who is a full blood Native does not. One child is status. One child is not. Even though each child has the same Status grandparents, even though everyone involved married full-bloods. What you just watch happen is referred to as two-generation cut-off clause. Marry out of status for two generations and children of the second union are non-Status. Was this draconian measure something that Native people requested? Or was it an initiative that the government came up with to eliminate Status Indians?” (pg. 168) Thomas King continues with wondering why Band Councils have not taken up the sword with more force where this is concerned. Good question. I’m wondering as well. The Final Frontier: In reality, the two-generation cut-off clause is the killing off of anyone with an Indian background, thereby eliminating the “Indian problem” altogether. Band Membership
Interesting Note: ‘Status” is a Canadian concept, it does not exist in the United States, for example, where Natives have to deal with blood quantum. No blood quantum for us! |
I received an email from a retired tribal chief expressing his concerns about his recent tenure. As an elected chief he was simply administering the poverty of his people. He wondered what the differences were between elected and traditional chiefs. I unearthed an article I’d written some time ago on the subject and personalized it for him. I’ve chosen not to use his name. |
The following is correspondence I had with a former chief.
Dear Former Chief, What happened in a nutshell is that the central government singled out our people as impediments to progress. To bring us under control our land and property rights were taken away and our treatment handed to the Minister of Indian and Northern Affairs* and other such government officials (i.e. Indian Agents) who were chosen over time to assist with repressing our basic freedoms and human rights. Essentially our people were under foreign rule and therefore we were forced to cede to the new policies and political structures; in so doing we lost our collective identity. This is why achieving any form of universal self-government is so difficult. The demands and prejudices of the central government and within our own Indigenous communities overrides any vestige of cultural identify, authenticity and sovereignty we may have left. Prior to the turn of the century the band council system replaced our time-honoured system of Traditional Chiefs and consensual decision-making. The Traditional Chief had no more power than any other tribal members, but may have been distinguished by the passion of his/her oratory or by being a great warrior and setting good examples. Nonetheless, the chief had only one voice and was simply part of group decision-making. You see, “back in the day” we were governed by the power of the Talking Stick and the Five Native Ethics, one of which was the Ethic of Non-Interference. In other words, if you and I were sitting together I would not impose my opinions or will on you. I would simply speak from my own truth as would you. No anger, no threats, no bad language, no behind the scenes subterfuge, no glad handing, no interference. The conversation would respectively go back and forth, or around the circle until consensus had been reached. In other words, everyone who wish to speak on a particular subject was heard and respected. The Traditional Chief, in other words was not permitted to wield any form of personal power without, at the very least, being governed by a Council of Elders. For example, neither the Cherokee or the Haudenosaune were permitted to go to war without the consent of a Council of Women. The Traditional Chief was then charged with the responsibility of speaking on behalf of the collective will of the Elders who were speaking on behalf of the people and ensuring that decisions were acted upon as decided. It was democracy in its highest and purest form. The introduction of white, racist colonialism and assimilation policies changed all that. Over time, however, our Traditional Chiefs were replaced with elected ones who gained considerable power within Native communities. If an elected Chief is walking the walk and talking the talk in a good way, then there was nothing to worry about. If he is not, and seeks only to put forward a personal agenda then the problems are immediate and often devastating. Non-Indigenous elections, in my view are a very successful divide and conquer technique deliberately introduced in the Indian Act to keep us separated and at odds with one another. It is simply an arm of the government that breeds, jealousy, nepotism, greed, corruption, among other things. On top of this are a number of corrupt, misguided and racist government officials overseeing it all. It is, to say the least, an untenable situation. I am not surprised that your tenure as Chief was a somewhat unhappy one. You sound like an honest, honorable man and I am sure you are very disappointed not having been able to move your people forward in a good way. Please keep in mind that none of it was your fault. You were hamstrung to the point of probably not being able to act at all in some situations because your hands were effectively tied by those within and without your community who had their own political agendas and axes to grind. The Ancestors smile on you for taking on the onerous task of Chief in the first place and to try to make a difference for your people. May your Spirit be Strong, Wilwilaaysk, All My Relations Shannon Thunderbird, M.A. |
1969 WHITE PAPER ON INDIAN POLICY
BACKLASH FROM THE NATIVE COMMUNITY
MEECH LAKE ACCORD – JUNE, 1990 Holding an eagle feather for spiritual strength, Cree, Elijah Harper, NDP 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. |
WHAT IS LEFT?
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CANADIAN AND SOUTH AFRICAN APARTHEID: A COMPARISON |
CANADA | SOUTH AFRICA |
Department of Indigenous and Northern Affairs Canada was dissolved in 2017 and replaced with two departments: Crown Indigenous Relations and Northern Affairs Canada. | The South African Native Affairs Commission (SANAC) was appointed to provide comprehensive answers to “the native question.” Its report (1905) proposed territorial separation of black and white landownership, systematic urban segregation by the creation of black “locations,” the removal of black “squatters” from white farms. |
1850 – Better Protection of Lands and property of Indians in Lower Canada. Called Reserves. One reason for removal was discovery of – gold, oil, diamonds and other Minerals. | Moved to specific Territories with ‘forced’ removals – Called Reserves then changed to Homelands — One reason for removal was the discovery of Diamonds & Minerals. |
1867 – Indian Act consolidated all legislation | 1950, the Population Registration Act required that all South Africans be racially classified into one of three categories: white, black (African), or colored (of mixed decent). The coloured category included major subgroups of Indians and Asians. Classification into these categories was based on appearance, social acceptance, and descent. |
Department of Indian and Northern Affairs determined Native Status. | The Department of Home Affairs oversaw colour classifications. |
Deprived Citizenship | Deprived Citizenship |
Segregated education, medical care and other public services all of which were inferior to the rest of Canadians. | Segregated education, medical care and other public services all of which were inferior to the rest of South Africans. |
The 1867 Indian Act is an amalgamation of a variety of different pieces of legislation as shown above was the final step in a continuum of measures aimed at putting down independent Indigenous interests. | Called South Africa’s Original Sin, the promulgation, in 1913, of the Native Land Act is viewed as the next step in a continuum of measures aimed at destroying independent African existence in the interest of White settlers. The Act set out to facilitate the formal establishment of African reserves. 7% of South Africa’s land area was set aside for this purpose and it was from these reserves that the mines and urban employers were to draw migrant labour. Term “Reserve” later changed to “Homeland” – how ironic |
Native, without citizenship and confined to reserves were not eligible for loans as they did not have collateral. Reserve land is Crown land and therefore not own by Natives | Under the Black (or Natives) Land Act No. 27 of 1913 Native Land Act. Black Africans were no longer be able to own, or even rent, land outside of designated reserves |
Indian Act restricted movement off-reserve. Permits were required to leave restricted areas. If the time frame was exceeded, Natives were hunted down by the Indian Agents and jailed for violating the restrictions set out on the pass. | Restrictions on movement – Permits required to leave restricted areas – Native (Black) Urban Areas Act, No 21 of 1923.
Superseded by the Native (Urban Areas) Consolidation Act No 25 of 1945. Repealed by the Abolition of Influx Control Act No 68 of 1986. |
1927 Amendment to the Indian Act banned Natives from raising money for political purposes. Jailed for up to two months and fined. | In 1953, the Public Safety Act and the Criminal Law Amendment Act were passed, which empowered the government to declare stringent states of emergency and increased penalties for protesting against or supporting the repeal of a law.
The penalties imposed on political protest, even non-violent protest, were severe. During the states of emergency which continued intermittently until 1989, anyone could be detained without a hearing by a low-level police official for up to six months. |
Assembly of First Nations among other protest groups including American Indian Movement in the States. | No means of protest until the African National Congress was formed 1912. |
A crucial new element was evangelicalism, brought to the Cape by Protestant missionaries. The evangelicals believed in the liberating effect of “free” labour and in the “civilising mission” of British imperialism. They were convinced that indigenous peoples could be fully assimilated into European Christian culture once they had been ‘civilized’ & ‘Assimilated’ to the ways of the Europeans. | DITTO SOUTH AFRICA! |
Indian Act banished Traditional Chiefs in favour of Elected Chiefs. | In addition to pushing Africans off the land, much was done to undermine the chieftain system of traditional African society as these tribal authorities acted as an independent political pole, which resisted these changes. |
e.tripod.com/rese
General: Indian Act/Apartheid was imposed to cement control over nApartheid policies abounded in the post-European contact colonial world. There are more than enough similarities between Canada and South Africa to raise a red flag that South African officials came to Canada a few times in the late 1800s to see how a democratic country could go about oppressing its original citizens. “Akin to the ways Indigenous resistance is and has been described as terrorist in Canada, Black resistance against the apartheid regime in South Africa was also deemed as terrorism and as a threat to the state and white South Africans. Like Canada, South Africa was a white settler state created through a process of the colonization of Indigenous peoples and lands. In fact Canadian and South African officials shared colonial techniques. In the early 1900s, South African officials came to Canada several times to study the colonial and reserve system set out in the Indian Act. Borrowing what they needed from these approaches, South African officials retuned to implant these highly racist tools in their own systems of segregation and apartheid.” http://6nsolidarity.wordpress.com/2010/03/21/what-is-the-international-day-for-the-elimination-of-racism/ ALSO: http://offreservational economic and social systems. They basically maintain white domination while keeping the offending racial groups separate. And so gradually over a relatively short spate of time, South African Blacks and Canadian Natives woke up to discover that “while they were not exactly slaves, they were pariahs in the lands of their births.” (Sol Plaatje, Native Life in South Africa, pg. 21, 1916) |