Indian Act

Under the section entitled "Reserves" in the Indian Act, reserves are said "to be held for use and benefit of Indians.[5]

18. (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band. Marginal note: Use of reserves for schools, etc.

— Indian Act, R.S.C., c. I-6, s. 18.[10][5]

18. (2) The Minister may authorize the use of lands in a reserve for the purpose of Indian schools, the administration of Indian affairs, Indian burial grounds, Indian health projects or, with the consent of the council of the band, for any other purpose for the general welfare of the band, and may take any lands in a reserve required for those purposes, but where an individual Indian, immediately prior to the taking, was entitled to the possession of those lands, compensation for that use shall be paid to the Indian, in such amount as may be agreed between the Indian and the Minister, or, failing agreement, as may be determined in such manner as the Minister may direct.

— Indian Act, R.S.C., c. I-6, s. 18.[10]

In the Indian Act, updated to April 2013, the term "band"[5]

means a body of Indians (a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, (b) for whose use and benefit in common, moneys are held by Her Majesty, or (c) declared by the Governor in Council to be a band for the purposes of this Act.

— Indian Act[10]

Fundamental to Canada's ability to interact with First Nations peoples is the question of defining who they are (e.g. who are the "Indians" of the Indian Act?), and this aspect of the legislation has been an ongoing source of controversy throughout its history. Not all people who self-identify as "Aboriginal" are considered "Indians" under the terms of the act. Only those on the official Indian Register maintained by the federal government (or a local "band list" in some cases) are Status Indians, subject to the full legal benefits and restrictions of the act. Notably this excludes Métis, Inuit, and so-called Non-Status Indians. Various amendments and court decisions have repeatedly altered the rules regarding who is eligible for Indian Status. Many bands now maintain their own band lists.

Prior to 1985, Indigenous persons could lose status under the act in a variety of ways, including the following:

• marrying a man who was not a status Indian
• enfranchisement: until 1947, Indigenous persons could not have both Indian status and Canadian citizenship.[11]
• having a father or husband who becomes enfranchised
• having at the age of 21 a mother and paternal grandmother who did not have status before marriage
• being born out of wedlock to a mother with status and a father without.

These provisions interfered with the matrilineal cultures of many First Nations, whereby children were born to the mother's clan and people gained their belonging in the clan from her family. Often property and hereditary leadership passed through the maternal line. In addition, the 1876 Indian Act maintained that Indigenous women with status who married status Indigenous men would, in the event of divorce, be unable to regain their status to the band they were originally registered in.[12] This occurred as a result of the act's enforcement of the patrilineal descent principle required to determine an individual's eligibility for Indian status.[12] As individuals, Indigenous women were not eligible for status or able to transfer status to their children in their own right. Indian status could only be reacquired or transferred legally by proof of an Indigenous father or through marriage to a husband with status.[12]

In Attorney General of Canada v. Lavell (1974), these laws were upheld despite arguments made under the Canadian Bill of Rights. The act was amended in 1985 (Bill C-31)[5] to restore status to people who had lost it in one of these ways, and to their children. Though people accepted into band membership under band rules may not be status Indians, Bill C-31 clarified that various sections of the Indian Act would apply to such members. The sections in question are those relating to community life (e.g., landholdings). Sections relating to Indians (Aboriginal people) as individuals (in this case, wills and taxation of personal property) were not included.

Bonita Lawrence (2003)[13] discusses a feminist position on the relationship between federal definition and Indian identity in Canada. Until 1985, subsection 12(1)(b) of the act "discriminated against Indian women by stripping them and their descendants of their Indian status if they married a man without Indian status."[14] Under subsection 12(2) of the act, "'illegitimate' children of status Indian women could also lose status if the alleged father was known not to be a status Indian and if the child's status as an Indian was "protested" by the Indian agent." Further, subparagraph 12(1)(a)(iv), which Lawrence calls the "double mother" clause, "removed status from children when they reached the age of 21 if their mother and paternal grandmother did not have status before marriage." Much of the discrimination stems from the Indian Act amendments and modifications in 1951.

Lawrence discusses the struggles of Jeannette Corbiere Lavell and Yvonne Bédard in the early 1970s, two Indigenous women who had both lost their Indian status for marrying white men. Lavell, whose activism helped create the Ontario Native Women's Association and also held the position of vice president of the Native Women's Association of Canada, and other Indigenous women were key actors in generating public awareness of gender discrimination in Canadian law and paving the way for later amendments to the Indian Act that allowed some women and their children to regain and/or attain status under Bill-C31.[15] Meanwhile, the Supreme Court of Canada ruled that the Indian Act was not discriminatory, as the pair gained the legal rights of white women at the same time they lost the status of Indian women, in a parallel to R. v. Drybones. In 1981, Sandra Lovelace, a Maliseet woman from western New Brunswick, forced the issue by taking her case to the United Nations Human Rights Committee, contending that she should not have to lose her own status by her marriage. The Canadian law was amended in 1985.[14]

The Canadian government applied gender bias requirements to the legal status of Aboriginal peoples in Canada. First passed as part of the Gradual Enfranchisement Act, a status Indian woman who married a man who was not a status Indian became non-status.[16] Without legal status, Aboriginal women are unable to access treaty benefits, practice inherent rights to live on their reserve, inherit family property or be buried on reserve with ancestors.[17] Restricted from access to their native community, Aboriginal women without legal status were unable to participate in ceremonies and rituals on their traditional land. However, these conditions did not apply to status Indian men who married non-status women; these men were able to keep their status.[17] Section 12, paragraph 1(b) of the act worked to disadvantage the position of Aboriginal women and can be considered an attempt to demolish Aboriginal families and alienate Aboriginal women from their land. Inflicting gender discriminatory laws, the Canadian government marginalized and disadvantaged Aboriginal women. Section 12 gained the attention of female movements contributing to a variety of proposals for reform.[18] Amended in 1985 through the introduction of Bill C-31, section 12 was removed and status was reinstated to those affected. The 1985 amendments led to the repatriation of status for many Indigenous women and their children but did not guarantee acceptance into an Indian band.[19] A decade later, nearly 100,000 people had their status' reinstated while bands had newly gained control of membership responsibilities which was previously administrated by the Department of Indian Affairs.[19] Consequently, the reality of scarce access to essential services and resources amongst Indigenous communities became a primary factor driving the membership process and its outcomes.[19]

As stated in Bill C-31, women who lost their status as a result of marrying a man who was not a status Indian can apply for reinstatement and regain status under subsection 6(1).[20] However, the children of reinstated women are subject to registration under subsection 6(2).[18] Aboriginal people registered under section 6(2) are unable to transmit status to future generations.[20] Thus, by reinstating women under section 6 of the act, the Canadian government failed to completely remove gender discrimination from its legislation, as the children of reinstated women have restrictions on their status, and status Indian men continue to hold a greater quality of status than women. Under Bill C-31, this system became known as the second generation cut-off.[19] Bill C-31 amendments create a new system for classifying status Indians that maintains gender discrimination.[20] Indigenous women's movements expressed that Bill C-31 failed to eliminate all gender discrimination from the Indian Act, and in 2010 the Canadian government introduced Bill C-3 (the Act to Promote Gender Equality in Indian Registration).[20]

Bill C-31 attempts to recognise the United Nations' Human Rights Committee decision in the Sandra Lovelace case and Charter compliance issues. However, under Bill C-31, women who regain status fall under 6(1) and her children fall under 6(1) status. However, anybody who loses and regains status that is not from marriage falls under 6(2) and cannot gain status [like 6(1)].[21] This action has ultimately violated the United Nations' International Covenant on Civil and Political Rights through the discriminatory practices of the Indian Act; that this law discriminates against Indigenous women and her descendants and their right to express their culture. In addition, this decision was also made based on the 2007 Supreme Court of British Columbia case of Sharon McIvor and her son, Jacob Grisner, that have been waiting over a decade of a verdict of their case.[22] The UNHRC's decision has determined that Bill C-31 has violated Articles 3 and 26 of the International Covenant, in concurrence of Article 27. As well, In Article 2(3)(a) of the decision, the Government of Canada must provide effective remedy.[23]

Under the United Nations' International Covenant on Civil and Political Rights, the Government of Canada is required in 180 days to fulfill these requirements: to ensuring that paragraph 6(1)(a) of the Indian Act is understood in a way that allows registration of those who were not previously registered under the distinction of paragraph 6(1)(a) on the basis of sex and gender, account for the ongoing discrimination of Indigenous peoples in Canada of gender and sex in the Indian Act and to avoid future discrimination similar to this Bill.[23]

Bill C-3 amendments to the act (Gender Equity in Indian Registration Act[24]—GEIRA) permitted Aboriginal women reinstated under subsection 6(2) to be eligible for 6(1) status.[25] Creating paragraph 6(1)(c.1) registration, reinstated Aboriginal women could only be eligible for registration under 6(1) if they had non-status children.[25] Since it was the children of Aboriginal women who had been affected by restrictions under subsection 6(2) legal registration, only women who had children were eligible to be registered under subsection 6(1) of the act. Continuing to place restrictions on the status of reinstated women, Bill C-3 does not remove all gender bias provisions from the act.

Bill S-3, "An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général)"[26] addresses gender-based inequalities in the Indian Act. Bill S-3 received royal assent in December 2017 and came in to full effect in August 2019.[27][28]

In 1894 amendments to the Indian Act made school attendance compulsory for Indigenous children between 7 and 16 years of age. The changes included a series of exemptions regarding school location, the health of the children and their prior completion of school examinations.[29]^{: 254–255} The Canadian Indian residential school system subjected children to forced conversions, sickness, abuse and what has been described as an attempt at cultural genocide by the Truth and Reconciliation Commission.[30] The residential school system severed family ties and diminished the transmission of traditional culture, in an attempt to assimilate Indigenous peoples into broader Canadian society for which on June 11, 2008, the government of Canada apologized.[31]

In 1885, an amendment to the act banned the Potlatch ceremony of the West Coast peoples.[29]^: 636 The Potlatch ban drove traditional ceremonies underground. A similar amendment in 1895 banned the Sun Dance of the Plains peoples, which was not lifted until 1951. Although lifted in 1951, repression of Indigenous spiritual practices continued in Canadian prisons through to the 1980s, as prison wardens often denied Indigenous peoples access to materials used for prayer.[32]

Starting in the early 1900s, the Nisga'a First Nation started or attempted to start several legal proceedings to take control of their traditional territory.[33] A series of attempts were denied by the B.C. government or not pursued by the Canadian Government. A 1927 amendment (Section 141) forbade any First Nation or band from retaining a lawyer for the purpose of making a claim against Canada, and further forbade them from raising money to retain a lawyer, on punishment of imprisonment.[34][35]

Section 87 exempts Indians from paying taxes on two types of property: (a) the interest of an Indian or a band in reserve lands or surrendered lands; and (b) the personal property of an Indian or a band situated on a reserve.[36]

Section 88 of the act states that provincial laws may affect Aboriginals if they are of "general application", meaning that they affect other people as well as Aboriginals. Hence, provincial laws are incorporated into federal law, since otherwise the provincial laws would be unconstitutional.[37] In Kruger and al. v. The Queen (1978), the Supreme Court found that provincial laws with a more significant impact on Aboriginals than other people can be upheld, as "There are few laws which have a uniform impact."

Constitutional scholar Peter Hogg argues that in Dick v. The Queen (1985),[38] the Supreme Court "changed its mind about the scope of s. 88." Section 88 could now protect provincial laws relating to primary Aboriginal issues and even limiting Aboriginal rights.[39]

• 1839: Act for the Protection of the Indians in Upper Canada
• 1850: An Act for the Protection of the Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury (13&14 Vic. c.74)
• 1850: An Act for the Protection of the Indians in Lower Canada from imposition, and the property occupied or enjoyed by them from trespass and injury" (13&14 Vic. c.42)
• 1857: Act to Encourage the Gradual Civilization of Indian Tribes in this Province, and to Amend the Laws Relating to Indians (20 Vic. c.26) through voluntary enfranchisement[9]
• 1859: An Act respecting Civilization and Enfranchisement of certain Indians[40]

• 1868: An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands[41] was created.
• 1869: An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42 introduced changes to the enfranchisement process.
• 1874: An Act to amend certain Laws respecting Indians, and to extend certain Laws relating to matters connected with Indians to the Provinces of Manitoba and British Columbia extended westward the effect of Canadian legislation regarding Indians.
• 1876: An Act to amend and consolidate the laws respecting Indians (the original Indian Act) was passed.
• 1879: An Act to amend The Indian Act, 1876 amended the act to allow "half-breeds" to withdraw from treaty; to allow punishment for trespassing on reserves; to expand the powers of chief and council to include punishment by fine, penalty or imprisonment; and to prohibit houses of prostitution.[42]
• 1880: An Act to amend and consolidate the laws respecting Indians passed.
• 1881: Amended to make officers of the Indian Department, including Indian Agents, legal justices of the peace, able to enforce regulations. The following year they were granted the same legal power as magistrates.[43] Further amended to prohibit the sale of agricultural produce by Indians in Prairie Provinces without an appropriate permit from an Indian agent.[43] This prohibition is, as of 2008, still included in the Indian Act, though it is not enforced.[44]
• 1884: Amended to force attendance of Indian youth in school. Amended to prevent elected band leaders who have been deposed from office from being re-elected.
• 1884: Amended to prohibit the potlatch and Tamanawas dances.[45][46]
• 1894: Amended to remove band control of non-natives living on reserve. This power now rested exclusively in the hands of the Superintendent-General of Indian Affairs.[47]
• 1896: Amended to extend the ban on potlatch and Tamanawas dances to outlaw all dances, ceremonies and festivals that involved the wounding of animals or humans, or the giving away of money or goods.[46]
• 1905: Amended to allow Aboriginal people to be removed from reserves near towns with more than 8,000 residents.[48]
• 1906: Amended to allow 50% of the sale price of reserve lands to be given to band members, following the surrender of that land.
• 1911: Amended to allow municipalities and companies to expropriate portions of reserves, without surrender, for roads, railways, and other public works.[48][49] Further amended to allow a judge to move an entire reserve away from a municipality if it was deemed "expedient."[47] These amendments were also known as the "Oliver Act".
• 1914: Amended to require western Indians to seek official permission before appearing in "Aboriginal costume" in any "dance, show, exhibition, stampede or pageant."[43]
• 1918: Amended to allow the Superintendent-General to lease out uncultivated reserve lands to non-Aboriginals if the new lease-holder used it for farming or pasture.[47]
• 1920: Amended to make it mandatory for Aboriginal parents to send their children to Indian residential school (Indian Act, 1920 s.10(1)). Also amended to allow the Department of Indian Affairs to ban hereditary rule of bands.[48] Further amended to allow for the involuntary enfranchisement (and loss of treaty rights) of any status Indian considered fit by the Department of Indian Affairs, without the possession of land previously required for those living off reserve. Repealed two years later but reintroduced in a modified form in 1933.[47]
• 1927: Amended to prevent anyone (Aboriginal or otherwise) from soliciting funds for Indian legal claims without a special license from the Superintendent-General. This effectively prevented any First Nation from pursuing Aboriginal land claims.[43]
• 1930: Amended to prevent a pool hall owner from allowing entrance to an Indian who "by inordinate frequenting of a pool room either on or off an Indian reserve misspends or wastes his time or means to the detriment of himself, his family or household". The owner could face a fine or a one-month jail term.[43]
• 1936: Amended to allow Indian agents to direct band council meetings, and to cast a deciding vote in the event of a tie.[47]
• 1951: Amended to allow the sale and slaughter of livestock without an Indian Agent permit. Status women are allowed to vote in band elections. Attempts to pursue land claims and the use of religious ceremonies (such as potlatches) are no longer prohibited by law. Further amended for the compulsory enfranchisement of First Nations women who married non-status men (including Métis, Inuit and non-status Indian, as well as non-Aboriginal men), thus causing them to lose their status, and denying Indian status to any children from the marriage.[47]
• 1958: Bill C-24 Métis scrip provision. On June 9, 1958, the Minister of Citizenship and Immigration, Ellen Fairclough, introduced legislation that would keep persons and their descendants that had received "half-breed lands and money scrip" (land-entitlements) from being removed from the Indian Register.[50] Under the previous versions of the Indian Act, persons who had received these land allocations were not entitled to be registered as status Indians. In the Senate of Canada the bill was debated by the newly appointed Senator James Gladstone in his maiden speech on August 12, 1958. Gladstone's speech was the first time the Blackfoot language from the Kainai Nation had been used in parliamentary proceedings. The bill received royal assent on August 13, 1958.[51]
• 1961: Amended to end the compulsory enfranchisement of men or bands.
• 1970: Amended after R. v. Drybones, [1970] S.C.R. 282, due to sections 94(b) and 96 of the Indian Act violating Section 1(b) of the Canadian Bill of Rights.
• 1985: Indian Act amended to void the enfranchisement process. Amended to allow status Indian women the right to keep or regain their status even after "marrying out" and to grant status to the children (but not grandchildren) of such a marriage. This amendment was debated in Parliament as Bill C-31. Under this amendment, full status Indians are referred to as 6–1. A child of a marriage between a status (6–1) person and a non-status person qualifies for 6–2 (half) status. If that child grows up and in turn married a non-status person, the child of that union would be non-status. If a 6–2 marries a 6–1 or another 6–2, the children revert to 6–1 status. Blood quantum is disregarded, or rather, replaced with a "two-generation cut-off clause".[52] Under amendments to the Indian Act (Bill C-31), Michel Band members have individual Indian status restored. No provision made in Bill C-31 for the restoration of status under the Band enfranchisement provision that was applied to the Michel Band. According to Thomas King, around half of status Indians are currently marrying non-status people, meaning this legislation accomplishes complete legal assimilation in a matter of a few generations.[52]
• 2002: Amended to allow band members living off reserves to vote in band elections and referendums.[53]
• 2011: Gender Equity in Indian Registration Act (Bill C-3) amended provisions of the Indian Act that the Court of Appeal for British Columbia found to be unconstitutional in the case of McIvor v. Canada. The bringing into force of Bill C-3 on January 31, 2011, ensured that eligible grandchildren of women who lost status as a result of marrying non-status men became entitled to registration (Indian status). As a result of this legislation approximately 45,000 persons became newly entitled to registration.[54]
• 2012: Jobs and Growth Act (Bill C-45).
• 2013: 200,000 Métis and 400,000 non-status Indians are included in the federal responsibility for Indians after a 13-year legal dispute.[55]
• 2016: Changes to the Jobs and Growth Act (Bill C-45).
• 2017: Gender-based inequalities addressed (Bill S-3).[28]

Numerous failed attempts have been made by Canadian parliamentarians to repeal or replace the Indian Act without success. Those changes that have been made have been piecemeal reforms, rather than sweeping revisions.

• The Statement of the Government of Canada on Indian policy or "the White Paper" (1969) would have abolished reserves and all other markers of "special status" and assimilated Indians fully into Canada. Failed due to First Nations' opposition (e.g. "the Red Paper") and withdrawn in 1971.
• The Manitoba Framework Agreement – a 1994 agreement between the Assembly of Manitoba Chiefs and the Minister of Indian Affairs, it created a regional pilot project to dismantle the Department of Indian Affairs' regional structure in Manitoba. It was deemed unsuccessful and discontinued in 2004.
• The Indian Act Optional Modification Act (Bill C-79) – introduced in 1996, it would have devolved certain powers to bands, but was opposed by most bands as being too limited and not respecting the principle of Aboriginal self-government as endorsed by the Royal Commission on Aboriginal Peoples. It died in parliament at the start of the 1997 election.
• The First Nations Governance Act (Bill C-7) – introduced in 2002, it would have allowed bands to amend their own leadership selection processes and devolved some other powers. It was opposed by most bands and died in Parliament in 2003.
• Senate Proposals (several) – the most recent is An Act for the Recognition of Self-Governing First Nations (Bill S-216) initiated by Senator Gerry St. Germain in May 2006 which would have allowed bands to write their own constitutions, subject to vetting by the Auditor General. Died in Parliament in September 2007.

Since the 1990s, several pieces of legislation have been passed allowing individual bands to opt out of a particular section of the Indian Act if an agreement is signed between the band and the government putting alternative measures in place. These are called "Sectoral Legislative Arrangements". The band remains subject to the act except for the section in question.

• First Nations Land Management Act (FNLMA)—enacted in 1999, it allows opt-outs of 34 land-related sections of the Indian Act and allows bands to create their own codes on land use and environmental stewardship. Fourteen bands originally signed on, by 2013 there were over 30 bands involved.
• First Nations Fiscal Management Act (FNFMA)—enacted in 2005, allows bands to issue their own bonds.
• First Nations Oil and Gas and Moneys Management Act (FNOGMMA)—enacted in 2005, allows bands to opt to take over the management of funds held in trust for them by the Crown, or to assume management of oil and gas resources on their reserves.
• First Nations Commercial and Industrial Development Act (FNCIDA)—since 2006 has allowed a band to request the federal government to create regulations for a particular industry on reserve that mirror those of the surrounding province. Amended in 2010 by the First Nations Certainty of Land Title Act (FNCLTA) which creates a registry similar to a provincial land titles registry for on-reserve real estate.