12 The Indian Act

Indian Act, 1876

The most important single act affecting First Nations is the Indian Act, passed by the federal government of the new Dominion of Canada in 1876 and still in existence today. The Indian Act was another attempt to assimilate First Nations people into Canadian society as quickly as possible. Under section 91(24) of the British North America Act (1867), the federal government was given jurisdiction or control over “Indians and Lands reserved for Indians,” providing exclusive authority over Indian affairs. You can read the complete Indian Act online.^[1]

Who is an “Indian”?

In the Indian Act, the Government of Canada defines who is an “Indian.” If the government defines you as an “Indian,” you are said to have “Status.” For this reason, “Indian” is a legal word, but not one that many Indigenous people are comfortable using to describe themselves.

Not all people who identify as First Nations are Status Indian under the Indian Act. Over time there have been many different laws defining who is and who is not eligible for status. Defining who is and who is not an “Indian” is challenging and complicated. “Indians” are the only group of people where the Government of Canada decides who belongs and who does not.

Status and non-Status

Historically, the Indian Act applied only to Indigenous Peoples that the Crown recognized as “Indians.” It excluded Métis and Inuit, and created a group of people who were not entitled to Indian status, referred to as “non-Status Indians.” “Status” determines who the government considers to be entitled to rights that apply to some, but not all, First Nation Peoples in Canada, including:

• the granting of reserves and the rights associated with them
• an extended hunting season
• a less restricted right to bear arms
• some medical coverage
• more freedom in the management of gaming and tobacco

Enfranchisement

The Indian Act made enfranchisement legally compulsory. Under the Indian Act from 1876 until 1955, Status Indians would lose their legal and ancestral identities (or Indian Status) for a variety of reasons, especially if they were women. Enfranchisement was offered to men (although if they were married, their wives and children would be considered enfranchised too).

Until as recently as 1982, the legal status of First Nations women was affected by who they married. First Nation women with Status lost their Indian Status when they married a non-Status man. First Nations women also lost their Indian Status when they married Métis or non-Indigenous men. All the children in these marriages would not be entitled to Indian Status.

Women also lost their status if their husbands died or abandoned them, in which case the woman would:

• lose the right to live on reserve land and have access to band resources,
• not necessarily become a member of her previous band again,
• be involuntarily enfranchised, losing her legal Indian status rights; her children
  could also be involuntarily enfranchised as a result.

Further discrimination against women

Under the Indian Act, First Nations women were also banned from voting and running in Chief and Council elections. The oppression of First Nations women under the Indian Act resulted in long-term poverty, marginalization and violence, which they are still trying to overcome today.

Inuit and Métis women were also oppressed and discriminated against, and prevented from:

• serving in the Canadian armed forces
• getting a college or university degree
• leaving their communities for long periods (e.g., for employment)
• becoming an ordained minister
• becoming a professional (e.g., a doctor or lawyer)

Impacts of the Indian Act: A timeline

Over the years, the Indian Act has legislated extreme changes in the lives of Indigenous Peoples. Navigate the timeline below to view some of these impacts.

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Note: If you are not using the online version of this guide, you can find the timeline in Appendix B.

Amendments to the Indian Act

The problem is we, as Indigenous peoples, have not been dealt with fairly, and also the governments have not dealt with the Indigenous issues the way we would like them to have.

– Elijah Harper (1949–2013; Oji-Cree; Canadian politician, first Treaty Indian elected as a provincial politician, Chief of the Red Sucker Lake community, recipient of the Order of Manitoba and the Stanley Knowles Humanitarian Award, and a key player in the rejection of the Meech Lake Accord)

1951

Amendments to the Indian Act in 1951 made it no longer illegal for First Nations people to:

• gather in groups of more than three
• leave the reserve without a pass
• hire a lawyer
• own property
• practise their culture

But many of the more harmful provisions still remained, including:

• the definition of who is an “Indian”
• the reserve system
• residential school policies
• an imposed system of government

As of 2017, all of these provisions still remain, except residential schools.

1985

In 1985, Bill C-31 was passed, amending the Indian Act to bring it into line with gender equality under the Canadian Charter of Rights and Freedoms. There were three major goals:

• to address gender discrimination in the Indian Act
• to restore Indian status to those who had been forcibly enfranchised
• to allow First Nations to control their own membership as a step toward self-government

The Indian Act today

The Indian Act is still in force, which is a major reason why the use of the offensive term “Indian” persists today.