The Indian Act
The Indian Act is one of the cornerstones of Canadian colonialism. Some of the main points we need to remember about the Indian Act are:
- It imposes a foreign system of government on First Nations in which accountability is to colonial masters in Ottawa, not to our people
- The government controls the disbursement of federal money to band councils and uses this as a means of controlling band councils’ political decisions.
- Through the Indian Act, the government gives itself the power to determine who is an Indian and who is not.
- The Indian Act was imposed on First Nations without our consent and it has no basis in treaty
- Its fundamental purpose is not protection, but assimilation and termination of Indigenous Peoples.
History of the Indian Act
Before Confederation, legislation had been passed in Upper Canada dealing with the protective duties of the crown in relation to Indigenous Peoples. As Canada increasingly sought to open land for settlement and resource extraction, Indigenous peoples were seen as a barrier that had to be overcome. This drove a new approach to Indian policy by the Crown: assimilation and termination. These policy objectives have driven federal Indian policy from that time until the present. The first legislation to reflect this shift in policy was the Act for the Gradual Civilization of the Indian Tribes of the Canadas (1857). The purpose of this Act was the “gradual removal of all legal distinctions” between Indians and settlers, and it provided criteria for so-called “enfranchisement”. This marked the beginning of intrusive legislative measures which began to interfere in the internal affairs of the Indian nations. At the same time, these pieces of legislation increasingly contradicted the nature and scope of the treaty relationship, and the terms of the treaties themselves.
The first Indian Act was passed in 1876.This Act embodied all of the contradictions of previous legislation, only more so. On the one hand, there were sections which highlighted the protective duties of the Crown, and provided a legislative base for the implementation of the treaties. On the other hand, there were sections which were highly intrusive and which focused on the government priorities of assimilation, “enfranchisement”, and “civilization”. This Indian Act was the model for colonial laws in Australia and for the Apartheid system in South Africa. Under the Indian Act, the government assumed control of and responsibility for Aboriginal lands. The Indian Act unilaterally gave the government the power to deem who was a “status Indian” and who not.
During the early years of the Indian Act, First Nations persisted in electing their customary leadership, who generally proved more stubborn in resisting the changes Ottawa was trying to impose. As a result, the Indian Act was amended and tinkered with to produce a leadership selection process that would favour leaders more pliant to Ottawa’s will. The imposed system of governance also disenfranchised women, who had played important roles in government in many nations. Fierce resistance in some nations was put down by force.
Over the next 80 years, the Act was amended numerous times, focusing more and more on intrusion, control, and assimilation, and less and less on protection and the treaties. Controls and prohibitions were placed on ceremonies, leadership selection, mobility off-reserve, trade & commerce, and the raising of funds for claims. Government was given increased powers to break up Indian reserves and Indian Bands. In 1884, companion legislation was passed – An Act for conferring certain privileges on the more Advanced Bands of the Indians of Canada, with the view of training them for the exercise of municipal powers. Among other things, it provided for Band Councils to levy taxes from Band members. This was the first example of government policy which persists to this day – the attempt to assimilate First Nations by turning them into municipalities “like others” and calling this “self-government”. The real objective is to strip First Nations of their Aboriginal and collective rights.
Among provisions of the Indian Act in these early years:
- Under the Act, it was an offense for an Indian to retain a lawyer for the purpose of advancing a claim.
- Under the Act, traditional ceremonies like potlatches and sundance were banned.
- Under the act, Indians could not vote — unless they gave up status. The aim was assimilation and an end to “the Indian problem”.
- Indigenous people were also required to get a pass from the Indian agent (a white bureaucrat appointed by Ottawa) if they wanted to leave the reserve. These pass laws inspired similar apartheid laws in South Africa.
- After Mistahimaskwa’s Sun Dance at Poundmaker’s reserve in 1884, which was attended by 2000, Canada amended the Indian Act to make it illegal for 3 or more Indians to gather in one place.
- Under the Act, Indians people could be jailed for drinking alcohol.
- In 1927, Indian political organizing was outlawed.
- Under the Indian Act, a woman who married a non-Native man would lose her Indian status, without gaining any right to vote.
Recent reforms of the Indian Act
Beginning in 1951, Canada began a series of reforms to the Indian Act. None of these, to this day, has questioned the core of government policy: maintaining the government’s fiduciary, trust, and protective duties to First Nations only until such time as the policy goal of assimilation, termination, and extinguishment has been achieved. The 1969 White Paper of the Trudeau government and the Buffalo Jump Memo of the Mulroney government define the underyling approach of Canada: Under the guise of “giving” Indigenous Peoples the “same” rights as other people, the White Paper proposed to eliminate Indigenous Peoples’ inherent, collective, and treaty rights by eliminating the legal concept of Indian Status and repealing the Indian Act. The White Paper was met with fierce resistance from First Nations, led by people like George Manuel and Harold Cardinal, who presented an alternative Red Paper proposing a new relationship based on Aboriginal and treaty rights.
The Mulroney government’s Buffalo Jump Memo adopted an even more deceitful approach, which has persisted in federal Indian policy to this day. The memo used the metaphor “Buffalo Jump” after a Plains practice of herding unsuspecting bison over a cliff to their death. The memo proposed a series of apparently innocuous policy changes that Indians would voluntarily accept, so that Indigenous Peoples would be herded towards assimilation and extinction. It proposed a ‘management approach’ for First Nations policy & programs, which had the following intent:
- Limiting & eventually terminating the federal trust obligations.
- Reducing federal expenditures for First Nations, underfunding programs, and prohibiting deficit financing.
- Shifting responsibility and costs for First Nations services to provinces and “advanced bands” through co-management, tri-partite, and community self-government agreements.
- “Downsizing” of the Department of Indian Affairs and Northern Development (DIAND) through a devolution of program administration to “advanced bands” and transfer of programs to other federal departments.
- Negotiating municipal community self-government agreements with First Nations which would result in the First Nation government giving up their Constitutional status as a sovereign government and becoming a municipality subject to provincial or territorial laws.
- Extinguishing aboriginal title and rights in exchange for fee simple title under provincial or territorial law while giving the province or territory underlying title to First Nations lands.
Comprehensive reforms embodying the approach of the White Paper and the Buffalo Jump Memo have periodically been put forward by Canada, notably in the 2001 First Nations Governance Act, and in a 2009 agenda of administrative reforms to Indian Governance by the Harper government to achieve most of these objectives without a political process or consultation which could block it. This agenda and its intent were leaked and blocked by widespread outrage.
To date, the government’s motives for reform to the Indian Act have not been about refounding the relationship between Indigenous Peoples on a basis of respect and responsibility, and recognition of Indigenous and Treaty rights. Amendments to the Indian Act have never seriously considered the wider issues:
- Relationship between the Indian Act and treaty & aboriginal rights
- Relationship between s.91(24) authority and the Crown’s trust, fiduciary and treaty obligations
- Relationship between the Indian Act, s.91(24) authority, and the inherent right of self-government
Instead, reforms have sought to achieve the following ends:
- Shedding fiduciary and trust responsibilities
- Fiscal restraint and cutting the costs of Indian expenditures
- Reducing the burden of C -31 implementation
- Encouraging integration into the provincial mainstream
- The imposition of taxation
- Diluting or neutralizing constitutional and treaty protections and obligations.
The fundamental intent and effect of the Indian Act is to manage, assimilate, and terminate Indigenous Peoples in Canada. The Indian Act has been, and continues to be, an unjustified infringement on the Aboriginal & treaty rights of the First Nations. They have never consented to its application.