Indian Act

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Date: 2019
Publisher: Gale, a Cengage Company
Document Type: Law overview
Length: 1,091 words
Content Level: (Level 4)
Lexile Measure: 1250L

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Initially introduced in 1876 and updated on multiple occasions, the Indian Act is a statute that covers the Canadian federal government's official policies regarding the country's indigenous peoples. Still in use today, the Indian Act establishes provisions for defining official First Nations status, the management of First Nations reserves, and federal funding for related matters. Through many amendments, the Indian Act still retains many aspects of its original iteration. Its implementation is overseen by a dedicated division of the Canadian federal government known as Indian and Northern Affairs Canada (INAC).

Background

In 1763, King George III (1738-1820) issued a royal proclamation that established an official colonial policy towards Canada's indigenous peoples. It offered limited rights and protections for native peoples and set forth the legal process through which colonial authorities could take control of native lands. In 1850, a new law known as the Act for the Better Protection of the Lands and Property of the Indians in Lower Canada was passed. This statute introduced the first definition of the term "Indian" to the Canadian legal lexicon.

The Indian Act evolved from these and other acts, most of which were the product of Canada's colonial period. Other key examples include the Gradual Civilization Act (1857) and the Gradual Enfranchisement Act (1869), which introduced assimilation-oriented policies. These early pieces of legislation were amalgamated and updated as the Indian Act in 1876.

Key Aspects of the Indian Act

The original Indian Act draws on the British North America Act (1867), which united Canada into a country and specified the powers of the new nation's federal government. Section 91(24) of the 1867 British North America Act explicitly grants the Canadian federal government administrative authority over "Indians and Lands reserved for Indians." It is this authority that formed the basis for the later passage of the Indian Act.

In addition to defining the scope of the federal government's control over traditional First Nations territories, the original version of the act also incorporated an updated definition of "Indian" as a legal term, which mainly focused on "male person[s] of Indian blood." A person meeting this definition held what is known as "status," which granted First Nations people certain cultural rights and territorial entitlements while also exposing them to certain limitations. For example, First Nations peoples who earned university degrees would lose their Indian status and the rights and entitlements it afforded. Such achievements were framed as desirable because they granted an individual certain rights, such as enfranchisement and full citizenship, that were not normally available to status Indians.

From a legal "status" standpoint, women were treated differently than men under the initial terms of the Indian Act. For instance, a status woman was no longer legally considered an Indian if she married a non-status man. Similarly, a non-status woman who married a status Indian became a status Indian herself, regardless of her actual racial or ethnic heritage.

The original Indian Act also conferred governing authority over First Nations people to the Canadian government rather than aboriginal peoples themselves. It also gave federal authorities wide latitude in restricting or banning certain traditional First Nations cultural practices. Notably, the Indian Act also established the concept of the "Indian agent," who acted as a representative of the Canadian federal government and held the authority to restrict the free movement of status Indians and enforce the act's other provisions and policies.

Did You Know?

For many years, the Indian Act functioned as a legal tool of social, political, and economic oppression.

It once required status Indians to abandon their traditional names and adopt European replacement names.

Early versions of the Indian Act banned First Nations members from forming their own political organizations. They also prohibited the sale of alcohol or ammunition to status Indians.

Former iterations of the Indian Act also outlawed the use of native languages, traditional native religions, and many other traditional spiritual and cultural practices.

The Canadian government began to reverse course on these policies in the late 1940s upon the recommendation of a special senatorial and parliamentary committee.

Amendments to the Indian Act

Over the years, the original Indian Act was updated and amended to introduce new polices and remove outdated ones. In 1884, a clause compelling status Indian children to attend assimilation-oriented residential schools was implemented. That year, it also became illegal for both status and non-status people to sell alcoholic beverages to status Indians. The following year, traditional potlatch ceremonies were banned.

In 1886, the definition of "Indian" was changed to encompass "any person who is reputed to belong to a particular band or who follows the Indian mode of life, or any child of such person." The 1886 revisions also introduced a path to enfranchisement and citizenship, available to any status Indian of "good moral character" who was "temperate in his or her habits." During World War I (1914-1918), status Indians became required to secure official permission before appearing off-reserve in traditional garb. At this time, the Canadian federal government also granted itself the right to appropriate native land for lease to non-status farmers. Traditional dances were outright banned in 1925, and status Indians were prohibited from hiring attorneys or legal representatives in cases involving land claims disputes without first securing the explicit permission of the Canadian federal government.

By the middle of the twentieth century, the injustices of the Indian Act had become plainly apparent and the Canadian government gradually began to reverse them, eventually leading to First Nations self-governance. The bans on traditional dances and cultural ceremonies were repealed and status Indians were again permitted to retain legal counsel in land claims lawsuits. In 1960, status Indians were granted the right to vote in federal elections and the act's enfranchisement provisions were removed in 1961.

In 1969, Prime Minister Pierre Trudeau (1919-2000) announced plans to remove the Indian Act from Canadian law altogether. Fearing they would lose the land rights and entitlements it provided, First Nations leaders petitioned for its preservation and continued reform. Trudeau assented.

It was not until the mid-1980s that women's Indian status was no longer affected by their choice of marriage partner. Canada's last residential school did not close until 1996. The federal government issued a formal apology for the forced education system in 2008 and offered financial compensation to impacted First Nations members. Since the start of the twenty-first century, the continued evolution of the act has largely focused on expanding the rights, entitlements, and protections afforded to status Indians, as well as ensuring the act's universal compliance with the Canadian Charter of Rights and Freedoms.

Source Citation

Source Citation   

Gale Document Number: GALE|EJ2181600583