What Does the Indian Act Actually Say?

Highlights from the Indian Act and its Notable Players

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The Indian Act is a Canadian federal law that governs in matters pertaining to Indian status, bands, and Indian reserves. It was first passed in 1876 and is still in force with amendments. The act authorizes the Canadian federal government to regulate and administer in the affairs and day-to-day lives of registered Indians and reserve communities.

Notable Players

Sir John A MacDonald

1st Prime Minister of Canada Architect of the Indian Act

AN 1888 CARTOON FROM THE NOW- DEFUNCT GRIP MAGAZINE SHOWING MACDONALD AND INDIAN COMMISSIONER EDGAR DEWDNEY

Sir John Alexander MacDonald was the first prime minister of Canada. The dominant figure of Canadian Confederation, he had a political career that spanned almost half a century. MacDonald was born in Scotland; when he was a boy his family immigrated to Kingston in the Province of Upper Canada. As the architect of the Indian Act, his opinions of the Indigenous population are important, dated or not.

Here are a few of his quotes on Indigenous People.

“to wean them by slow degrees, from their nomadic habits, which have almost become an instinct, and by slow degrees absorb them or settle them on the land. Meantime they must be fairly protected. “ (Biggar, 1985. P. 177)

“When the school is on the reserve, the child lives with its parents, who are savages, and though he may learn to read and write, his habits and training mode of thought are Indian. He is simply a savage who can read and write. It has been strongly impressed upon myself, as head of the Department, that Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men." (House of Commons Debates, 1883. p1107–1108)

“I have reason to believe that the agents as a whole … are doing all they can, by refusing food until the Indians are on the verge of starvation, to reduce the expense,” (House of Commons Debates, 1882. p. 1186)

Duncan Campbell Scott

Deputy Superintendent General of Indian Affairs from 1913 – 1932 and Poet

Quotes from Mr Scott.

"It has always been clear to me that the Indians must have some sort of recreation, and if our agents would endeavour to substitute reasonable amusements for this senseless drumming and dancing, it would be a great assistance." (Titley, 1986. p. 177)

“I want to get rid of the Indian problem.... Our objective is to continue until there is not an Indian that has not been absorbed into the body politic, and there is no Indian question, and no Indian Department…” (Scott, 1920. National Archives of Canada)

“…the system was open to criticism. Insufficient care was exercised in the admission of children to the schools. The well-known predisposition of Indians to tuberculosis resulted in a very large percentage of deaths among the pupils. They were housed in buildings not carefully designed for school purposes, and these buildings became infected and dangerous to the inmates. It is quite within the mark to say that fifty per cent of the children who passed through these schools did not live to benefit from the education which they had received therein." (TRC Canada, 2015, p. 375)

Peter Henderson Bryce

Chief Medical Officer of the federal Department of Immigration 1904

Peter Henderson Bryce became an ally to Canada’s Indigenous People shortly after becoming the first Chief Medical Officer of the Interior in 1904, twenty years after the start of mandatory residential school enrolment. Tasked with “systematic collection of health statistics of the several hundred Indian bands scattered over Canada” (Bryce, 1922).

In 1907 he reported that over 25% of the (1537) students had died from tuberculosis, with some schools approaching 70% death rates. Bryce’s report blamed school construction and care standards for the much higher rates of TB in the schools which went against the popular racial susceptibility theory of the time. (Bryce, 1907)

Bryce wrote that Indigenous children enrolled in residential schools were deprived of adequate medical attention and sanitary living conditions. He suggested improvements to national policies regarding the care and education of Indigenous peoples that would drastically reduce TB rates in the schools, however all of them were rejected as “too costly” and the report never went public. In 1921 Bryce was forced into retirement by government and although he appealed the decision, he was ultimately denied. Shortly after his forced resignation he published his earlier suppressed report condemning the treatment of the Indigenous at the hands of the British North America Act.

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Highlights from The Indian Act

1876 - The Indian Act is created. The reserve system is governed by the Indian Act and relates to First Nations, bands and people, referred to in a legal context as Indians. Inuit and Métis people normally do not live on reserves, though many live in communities that are governed by land claims, or self- government agreements.

Any existing Indigenous self-government structures at this time are extinguished.

 All lands reserved for Indians or for any tribe, band or body of Indians, or held in trust for their benefit, shall be deemed to be reserved and held for the same purposes as before the passing of this Act, but subject to its provisions; and no such lands shall be sold, alienated or leased until they have been released or surrendered to the Crown for the purposes of this Act.

Upon the death of any Indian holding under location or other duly recognized title any lot or parcel of land, the right and interest therein of such deceased Indian shall, together with his goods and chattels, devolve one-third upon his widow, and the remainder upon his children equally ; and such children shall have a like estate in such land as their father ; but should such Indian die without issue but leaving a widow, such lot or parcel of land and his goods and chattels shall be vested in her, and if he leaves no widow, then in the Indian nearest akin to the deceased, but if he have no heir nearer than a cousin, then the same shall be vested in the Crown for the benefit of the band : But whatever may be the final disposition of the land, the claimant or claimants shall not be held to be legally in possession until they obtain a location ticket from the Superintendent-General in the manner prescribed in the case of new locations.

In the case of an Indian reserve which adjoins or is situated wholly or partly within an incorporated town or city having a population of not less than eight thousand ... the Governor in Council may, upon the recommendation of the Superintendent General, refer to the judge of the Exchequer Court of Canada for inquiry and report the question as to whether it is expedient, having regard to the interest of the public and of the Indians of the band for whose use the reserve is held, that the Indians should be removed from the reserve or any part of it....

1880 - Though not a law but a policy, Indigenous farmers are expected to have a permit to sell cattle, grain, hay, or produce. They must also have a permit to buy groceries and clothes.

1884 - Attendance in residential schools becomes mandatory for status Indians until the age of sixteen. Children are forcibly removed and separated from their families and are not allowed to speak their own language or practice their own religious rituals. Over 150,000 Indigenous children will be forced into the school system, between 10 and 30 thousand will never return.

The sale of alcohol to Indigenous peoples is prohibited.

1885 - Indigenous peoples are banned from conducting their own spiritual ceremonies such as the potlatch. One of the most famous examples of this oppression and subsequent resistance and adaptation is known as the “Potlatch Law.” In 1884, the federal government banned potlatches under the Indian Act, with other ceremonies such as the sun dance to follow in the coming years. The potlatch was one of the most important ceremonies for coastal First Nations in Western Canada and marked important occasions as well as serving a crucial role in the distribution of wealth.

“Every Indian or other person who engages in or assists in celebrating the Indian festival known as the "Potlatch" or in the Indian dance known as the "Tamanawas" is guilty of a misdemeanor, and liable to imprisonment for a term of not more than six nor less than two months in any gaol or other place of confinement; and every Indian or persons who encourages ... an Indian to get up such a festival ... shall be liable to the same punishment” (Indian Act, 1885.)

A pass system is also created and Indigenous peoples are restricted from leaving their reserve without permission. In the aftermath of the North-West Rebellion, Indian Affairs instituted a pass system designed to confine Indians to their reserves in selected areas of the prairie west. Where the system was in effect, an Indian wishing to leave his reserve was required to obtain a pass, duly signed by the Indian agent and stipulating the duration and purpose of the leave.

Indians without a pass, or in violation of the terms of the pass, were taken into custody by the police and summarily returned to their reserve. Lacking any basis in law, the system evolved as a form of local administrative tyranny, informally endorsed at the ministerial level of Indian Affairs. It aimed at a racial segregation meant to restrain Indian mobility, thereby minimizing friction with the white community, as well as ameliorating certain real or imagined problems, such as Indian prostitution, alcoholism, and cattle killing.

1886 - The definition of Indian is expanded to include "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." Voluntary enfranchisement is allowed for anyone who is "of good moral character" and "temperate in his or her habits".

1914 - Indigenous peoples are required to ask for official permission before wearing any "costume" (traditional attire) at public events. Dancing is outlawed off reserve. In 1925, it is outlawed entirely. This had profound effects on Indigenous populations. First, it contributed to the loss of Indigenous cultural traditions and practices leading to a sense of disconnection from their history and identity. Second, the ban had a significant impact on Indigenous peoples' mental health and well-being. Finally, it contributed to the ongoing marginalization and discrimination.

1918 - The Canadian government gives itself the power to lease out Indigenous land to non-Indigenous persons if it is not being used for farming. According to historical records, the government leased out large portions of Indigenous land for resource extraction, such as mining, logging, and oil and gas development. This resulted in the displacement of Indigenous peoples from their traditional territories and the loss of their cultural and spiritual connections to the land. The exact amount of land leased out under the Indian Act is difficult to determine, as records were not always kept accurately or transparently.

1927 - In the early 1900’s, the Nisga'a First Nation would attempt to take a legal route to attempt to secure their traditional territory. All attempts were denied by the governments of British Columbia and/or ignored by the Canadian Government. A 1927 amendment (Section 141) forbade any First Nation or Indian band from retaining legal counsel for the purpose of making a claim against the governments, and further forbade them from raising money to retain counsel, on threat of imprisonment: Indigenous peoples are banned from hiring lawyers or legal representation regarding land claims against the federal government without the government's approval. Without access to the court system to resolve land claim disagreements, the Indigenous peoples were completely at the mercy of the government of Canada and the Indian agents’ predatory actions and legislation. The right to representation is a hallmark of western civilization, but one not granted to the Indigenous of Canada until the last half of the twentieth century.

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.

(Indian Act, Section 141, 1876 – Repealed 1951)

1951 - After the Joint Committee of the Senate and House of Commons examines the Act again in the late 1940’s, the bans on dances, ceremonies, and legal claims are removed. Women are now allowed to vote in band council elections. Provisions that are still in place include compulsory enfranchisement through marriage to a non-status man; Indigenous peoples who receive a degree or become a doctor, clergyman or lawyer lose status. 1951 amendments now enact the "double mother rule" which removes the status of a person whose mother and grandmother were given status through marriage.

1960 - Indigenous peoples are finally allowed to vote in federal elections. That is to say, for nearly a century, Indigenous peoples were denied the right to vote for the government that had stolen their land from them.

1961 - Compulsory enfranchisement is removed. The ultimate purpose of enfranchisement (loss of status rights) was to encourage assimilation/civilization and to reduce the number of Indians the federal government was financially responsible for. If you gave up your status you gave up associated rights and benefits.

Any Indian who may be admitted to the degree of Doctor of Medicine, or to any other degree by any University of Learning, or who may be admitted in any Province of the Dominion to practise law either as an Advocate or as a Barrister or Counsellor, or Solicitor or Attorney or to be a Notary Public, or who may enter Holy Orders, or who may be licensed by any denomination of Christians as a Minister of the Gospel, may upon petition to the Superintendent-General, ipso facto become and be enfranchised under the provisions of this Act; and the Superintendent-General may give him a suitable allotment of land from the lands belonging to the band of which he is a member.

1969 - The first Trudeau government announces its intentions to entirely eliminate the Indian Act with the White Paper. The Indigenous community is outraged. Highlights include…

1. Elimination of the Indian Act: The White Paper proposed the elimination of the Indian Act, which gave the Canadian government control over many aspects of Indigenous peoples' lives, including their education, land, and cultural practices. The White Paper argued that the Indian Act was a barrier to Indigenous peoples' integration into Canadian society and should be replaced with a new policy framework.

2. Assimilation: The White Paper proposed the assimilation of Indigenous peoples into Canadian society, arguing that Indigenous peoples should have the same rights and responsibilities as other Canadians. The White Paper proposed the elimination of the special status of Indigenous peoples and the transfer of responsibility for Indigenous affairs to provincial governments.

3. Land Claims: The White Paper proposed the elimination of Indigenous land claims, arguing that Indigenous peoples should have the same property rights as other Canadians. The White Paper proposed the transfer of Indigenous lands to provincial governments and the elimination of reserves

1970 - The Royal Commission on the Status of Women recommends that legislation be enacted to repeal sexist Indian Act provisions.

1973 - The Supreme Court rules that Indigenous rights to land do indeed exist and cites the 1763 Royal Proclamation as proof. This translates into an actual victory in the following decade, when the Inuvialuit Claims Settlement Act comes into force in 1984, giving Inuit of the western Arctic control over resources.

1978 - Canada issues a report which acknowledges the sexist marrying out rule which strips status women of their status and benefits if they marry non-status men. Sandra Lovelace challenges this rule in the late 1970s, petitioning to the UN Human Rights Committee in her quest. In 1981, the committee finds that the loss of a woman's status upon marriage violates the International Covenant on Civil and Political Rights.

1985 - Bill C-31 comes into effect. The marrying out rule in the Indian Act is finally removed but further distinctions in status are created, with additional issues stemming from this distinction. Re-instated women are given status, while men retain status.

2023 - The Indian Act exist in it’s current form here…

https://laws-lois.justice.gc.ca/eng/acts/i-5/

Some Indigenous and non-Indigenous peoples call for the abolition of the Act, others fear that its removal would erode certain protections, such as those on Indian Status. Assembly of First Nations chief Perry Bellegarde stated in 2018, “We all want to move beyond the Indian Act’s control and reconstitute ourselves as Indigenous peoples and Nations with fundamental inherent rights.”

I’m reminded of the words of Hopi Indian Chief White Eagle, whose statement in March of 2020 reminded us all that in every moment the choice for the future is individually ours, with collective implications.

“This moment humanity is going through can be seen as a portal and as a hole. The decision to fall into the hole or go through the portal is up to you. If they repent of the problem and consume the news 24 hours a day, with little energy, nervous all the time, with pessimism, they will fall into the hole.

But if you take this opportunity to look at yourself, rethink life and death, take care of yourself and others, you will cross the portal. Take care of your home, take care of your body. Connect with the middle body of your spiritual house, all this is synonymous, that is to say the same. When you are taking care of one, you are taking care of everything else.

Do not lose the spiritual dimension of this crisis, have the aspect of the eagle, which from above, sees the whole, sees more widely. There is a social demand in this crisis, but there is also a spiritual demand. The two go hand in hand. Without the social dimension, we fall into fanaticism. But without the spiritual dimension, we fall into pessimism and lack of meaning.

You were prepared to go through this crisis. Take your toolbox and use all the tools at your disposal. Learn about resistance with indigenous and African peoples: we have always been and continue to be exterminated.

But we still haven’t stopped singing, dancing, lighting a fire and having fun. Don’t feel guilty about being happy during this difficult time. You don’t help at all by being sad and without energy. It helps if good things emanate from the Universe now. It is through joy that one resists.

Also, when the storm passes, you will be very important in the reconstruction of this new world. You need to be well and strong. And, for that, there is no other way than to maintain a beautiful, happy and bright vibration. This has nothing to do with alienation. This is a resistance strategy. In shamanism, there is a rite of passage called the quest for vision. You spend a few days alone in the forest, without water, without food, without protection. When you go through this portal, you get a new vision of the world, because you have faced your fears, your difficulties…

This is what is asked of you. What world do you want to build for yourself? For now, this is what you can do: serenity in the storm. Calm down and pray. Everyday. Establish a routine to meet the sacred every day. Good things emanate, what you emanate now is the most important thing. And sing, dance, resist through art, joy, faith and love.”

Canada has come to a crossroads in its history, we can either open the door, or fall into the hole. Will we fall back into our holes of ignorance, or can we open the door, have real conversations, and start a path to true reconciliation?

Darren Grimes

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