HISTORY OF DISCRIMINATORY LAWS
Wendy Moss, Elaine Gardner-O'Toole, Law and Government Division
Revised November 1991
CIVIL AND POLITICAL RIGHTS
A. The Federal
and Provincial Franchise
C. Property Rights
The Right to Homestead
Restricted Right to Sell Agricultural Products
Wills and Estates
CONTROL OF INDIAN STATUS AND MINORITY RIGHTS
A. Liquor Offences
B. Other Criminal Offences
HISTORY OF DISCRIMINATORY LAWS*
This paper will outline
the history of federal and provincial laws applicable to aboriginal people.
Much has been written about
discriminatory federal legislation respecting Indians. The exclusive jurisdiction
of Parliament over "Indians and lands reserved for the Indians"(1) and the large body of resulting federal legislation(2) are obvious reasons for the emphasis
on the federal side of this story. There has been relatively little discussion,
however, of the discriminatory provincial legislation and the joint impact
of federal and provincial discrimination on the basic human rights of
aboriginal people. This paper does not attempt to identify exhaustively
every instance of statutory discrimination and its implications. It will,
however, review the history of this issue and examine both federal and
provincial strands of legislation. The word "discrimination"
will be used in the sense of legal distinctions singling out aboriginal
people for special treatment and operating to the detriment of their fundamental
It is worth noting that,
before Confederation, race relations in the territories that eventually
formed Canada began with slavery, primarily involving Indian slaves (called
"Panis" or "Pawnees").(3)
While in the 1790s legislative action in Upper Canada and judicial action
in Lower Canada signalled the end of slavery, it was not until 1833 that
the Act of the Abolition of Slavery finally abolished slavery in
the British Empire.(4) Paradoxically,
however, the colonial period brought an important shift in the non-native
perception of Indians: from being viewed as independent and (arguably)
sovereign peoples sought after as allies in colonial wars, Indian nations
began to be viewed as dependent groups of Crown subjects in need of protection
It is generally accepted
that the often conflicting goals of "civilization," assimilation,
and protection of Indian peoples that have been pursued throughout the
history of federal Indian legislation have their origin in (primarily
British) colonialism.(5) Throughout
the colonial and post-Confederation periods, governments vacillated between
two policies. The isolationist policy held that assimilation could be
best achieved by isolating Indians on reserves, with Indian agents gradually
preparing them for integration with the dominant society. (Alternatively,
isolation was viewed by some simply as a protective measure until the
Indian people should become extinct). The policy of immediate assimilation,
on the other hand, favoured immediate placement of Indians among non-native
people and removal of special protective measures and legal status. The
isolationist policy has predominated but, as some observers have noted,
it has had the unintended result of preserving Indian cultures and providing
a means for the Indian people to resist assimilative pressures. Accordingly,
Indians have fought to retain their reserves, treaty rights and special
legal status as a way of maintaining distinct cultural or national identities.
While Indian people view
reserve and treaty rights as a quid pro quo for giving up a good
part of their traditional lands, federal and provincial governments have
frequently taken the view that the Indians refusal to abandon their
distinctive cultures, government and identities is a refusal to take up
the ways of a more "advanced civilization" and accordingly,
a refusal to take up the "responsibilities" of full citizenship.
In the result, the history of native policy, particularly Indian policy,
in Canada is replete with examples of legal bars to the exercise of fundamental
civil, political and cultural rights.
AND POLITICAL RIGHTS
A. The Federal
and Provincial Franchise
In the colonial period,
though legislation did not explicitly deny the franchise to aboriginal
people, property qualifications effectively excluded the vast majority
of them (i.e., those living on reserves or in unceded territory). The
early electoral statutes essentially linked the franchise to ownership
in fee simple of land of a specified minimum value. Title to aboriginal
lands, however, was considered to vest in the Crown with the use and benefit
accruing to the aboriginal people.
By 1857, in the Province
of Canada an Indian man could qualify for the right to vote by applying
for enfranchisement and receiving an allotment of reserve lands, which
would be subject to assessment and taxation.(6)
Enfranchisement simply removed all distinctions between the legal rights
and liabilities of Indians and those of other British subjects. It did
not in itself, grant an entitlement to vote. Enfranchisement did, however,
require the abandonment of reserve rights and the right to live with ones
family and culture. Further, it was dependent upon proof of literacy,
education, morality and solvency. Consequently, the requirements for enfranchisement
constituted discriminatory conditions imposed on Indians, preventing them
from qualifying for the right to vote.
After 1867, the colonial
form of enfranchisement policy was continued by federal legislation in
1868(7) and then modified in 1869, so that enfranchisement
and a life estate in an allotment of reserve lands could be granted to
any Indian male "who from the degree of civilization to which he
has attained, and the character for integrity and sobriety which he bears,
appears to be a safe and suitable person for becoming a proprietor of
Upon Confederation, the
federal franchise was determined by the requirements of the provincial
franchise.(9) As the provinces continued to restrict the
franchise to males possessed of substantial property, aboriginal people
were again, for all practical purposes, excluded.(10)
Thus in the early days of Canadas history the interaction between
provincial and federal electoral laws, enfranchisement policy (with its
inherently negative judgment of Indian culture) and judicial interpretations
of the nature of Indian title resulted in the denial of the federal and
provincial franchise to aboriginal people.
The irony of denying aboriginal
people the right to vote through property ownership requirements is illustrated
by the fact that as late as 1969 "any British subject" resident
in Canada 12 months prior to an election had a right to vote; the definition
of "British subject" included citizens of the Union of South
Africa, despite that countrys departure from the Commonwealth in
British Columbia was one
of the first provinces to pass legislation expressly disqualifying people
from the franchise on grounds of race. In 1875, this province passed legislation
providing that "no Chinaman or Indian" could vote.(12)
Similar voting disabilities applied to Indians and other racial groups
under legislation such as the Municipal Elections Act(13)
and the Public School Act.(14)
These racially discriminatory provisions of British Columbias electoral
laws were upheld as valid legislation by the Judicial Committee of the
Privy Council in Cunningham and A.-G. for B.C. v. Tomey Homma
and A.-G. for Canada. The Judicial Committee declared that "the
policy or impolicy of such enactment as that which excludes a particular
race from the franchise is not a topic which their Lordships are entitled
As British Columbia had
done in 1875, New Brunswick introduced a male suffrage in 1889 and disqualified
Indians in general(16) as did Saskatchewan in 1908(17) and the Yukon in 1919.(18) By not defining the word "Indian,"
these provisions may have excluded enfranchised Indians as well. At various
times, all the other provinces except Nova Scotia and Newfoundland passed
legislation that in one way or another disqualified Indians from voting.
Ontario in 1874 excluded all but enfranchised Indians(19)
and then specified that enfranchised Indians not resident on reserves,
even if in receipt of annuities, were eligible to vote, if otherwise qualified.(20)
Manitoba disqualified Indians or persons of Indian blood receiving an
annuity from the Crown (1886).(21)
Alberta excluded all persons of Indian blood who belonged or were reputed
to belong to any band of Indians (1909).(22)
Quebec excluded Indians and individuals of Indian blood domiciled on land
reserved for Indians (1915).(23) P.E.I. excluded Indians ordinarily
resident on an Indian reservation (1922).(24)
In the Northwest Territories, unenfranchised Indians were excluded.(25)
Federally, blatant racial
discrimination first appeared in 1885. The Electoral Franchise Act,
the first federal franchise Act, extended the right to vote in federal
elections to certain Indians by providing that the word "person"
meant male person, including an Indian but disqualifying:
Indians in Manitoba, British
Columbia, Keewatin and the North-West Territories, and any Indian on
any reserve elsewhere in Canada who is not in possession and occupation
of a separate and distinct tract of land in such reserve, and whose
improvements on such separate tract are not of the value of at least
one hundred and fifty dollars, and who is not otherwise possessed of
the qualifications entitling him to be registered on the list of voters
under this Act.(26)
The interesting history
of the 1885 Act and its repeal in 1898 has been discussed in some detail
elsewhere.(27) It is worth noting that Sir John A. Macdonald
was prepared originally to extend the federal vote to all Indians, whether
enfranchised or not, without conditions different from those imposed on
other British subjects. The Prime Minister also maintained that the different
nature of Indian title should not prevent recognition of the right of
Indians to vote.(28) Heated
debate in the House, however, as a result of the Oppositions virulent
resistance to granting the vote to any Indians, resulted in the compromise
evident in the 1885 Act, whereby Indians in areas recently involved in
the Metis-Indian rebellion were excluded. Bartlett has identified the
numerous reasons given by Opposition Members during the House debate for
denying the vote to Indians in general:
were incapable of exercising the franchise;
were not capable of civilization and would eventually become extinct;
were utterly incapable of managing their own affairs and the numerous
legal disabilities imposed on them by the Indian Act made extension
of the franchise inappropriate;
not be extended to Indians involved in the 1885 rebellion;
interests in reserve lands not equivalent to non-native property interests;
should not have the vote while under the discretionary care of the
were too much controlled by government and therefore interference
by Indian agents was possible;
the true intent of the bill was gerrymandering;
the vote represented and encroachment on the rights of white men.
Bartlett has also noted
the various epithets used in debate by opponents of the 1885 bill to describe
Indians: "the low and filthy Indians of the reserves," "barbarians,"
"ignorant and barbarous," "brutes," "dirty, filthy,
lousy Indians," "savages."(29)
It would not be until the
advent of human rights legislation following World War II that legal remedies
would be available for discriminatory action and that federal and provincial
governments would initiate legislative changes to conform with human rights
The process of eliminating
this form of legislated discrimination began when federal and provincial
governments extended the right to vote first to Indians, enfranchised
or not, who did not reside on reserves,(30) then to Indians with service
in the armed forces, and then to their spouses.(31)
Quebec appears to be the only province not to have provided an exemption
for service in the armed forces.
In 1950, the federal franchise
was extended to Indians only if they waived their tax exemptions under
the Indian Act respecting personal property.(32)
Universal adult suffrage was not finally achieved federally until 1960,
with the unqualified extension of voting rights to all Indians under the
Act to Amend the Canada Elections Act, and provincially until 1969,
when Quebec became the last province so to extend its provincial franchise,(33)
after British Columbia in 1949,(34)
Manitoba (1952),(35) Ontario (1954),(36) Saskatchewan (1960),(37) P.E.I. (1963),(38)
New Brunswick (1963),(39)
and Alberta (1965).(40)
Following the removal of these legal disabilities, there were reports
that Indians hesitated to exercise their right to vote for fear of weakening
their claims to treaty rights and tax exemptions.(41)
The denial of the franchise
to aboriginal people had meant that they were also prevented from serving
on juries. Even after extension of the federal and provincial franchise
there was a practice of omitting Indians names from voters
lists compiled for jury purposes. The first time Indians served on a Canadian
jury is reported to have been 24 January 1972.(42)
Only the federal government
appears to have discriminated expressly against the Inuit in its electoral
laws. "Esquimaux" were disqualified from voting federally in
1934(43) with no exemptions for service in the armed
forces.(44) The Inuit received an unqualified
right to the franchise in 1950.(45)
It should be pointed out
that exclusion from the franchise had not disqualified aboriginal people
from certain privileges or rights available to British subjects, such
as appointment to the Senate, or election to the House of Commons. Senator
Gladstone, a Blood Indian, was appointed in 1958 to the Upper House, though
he could not vote in federal or provincial elections. Further, in 1870,
an Ontario court held that an Indian who was a British subject and otherwise
qualified, even though not enfranchised, could hold the position of Reeve
of a municipality.(46)
Official recognition of
the fact that aboriginal peoples have had their own legitimate forms of
political institutions is very recent (the 1983 Report of the Special
Committee on Indian Self-Government). Before contact with Europeans and
to a large extent afterwards, aboriginal people did not rely on the written
word, but rather on a variety of distinctive ways to organize, operate
and record political ideals and institutions. Examples of these were oral
traditions, wampum belts and potlatch ceremonies. The significance of
these has not been appreciated by the dominant non-native society; consequently,
they have frequently been ignored or legally suppressed while the federal
government has tried to impose a uniform set of Euro-Canadian political
ideals on vastly differing native societies from coast to coast.
The imposition of the Euro-Canadian
political ideal of elected local government began soon after Confederation.
The 1869 "Act for the gradual enfranchisement of Indians..."
provided that the federal government could order the establishment of
an elected band council as well as removal from office "for dishonesty,
intemperance or immorality." Limited recognition was given to aboriginal
custom by continuing the tenure of existing "life chiefs"
only, until their death, resignation or removal by the government.(47) This Act was aimed at bands
in the older settled regions, considered to be more advanced and prepared
to take further steps toward the ultimate goal of "civilization."(48)
However, these bands were given only very limited powers of local government,
essentially minor by-law making powers over public health and maintenance
of peace and order, and even these were subject to confirmation by the
The first consolidated Indian
Act (1876) was again primarily aimed at speeding up the "civilization"
of Indians living east of Lake Superior (western Indians were exempted
from many of its provisions). The Act gave the government power to impose
an elected band council system and set out in some detail how that system
would operate. Government policy was to apply the system only upon request
and to encourage such requests, band councils were given slightly increased
By 1880, the very Indians
who were intended to take advantage of the Act had made clear their rejection
of its restricted elective system and their distaste for the degree of
federal control. These protests were seen as further evidence of a need
to guide and direct aboriginal people.(51) The 1880 Indian Act(52) clearly stated the governments intent
to impose the style of elective government it deemed advisable for the
"good government" of bands. It continued to provide broad criteria
for the removal of elected officers. In addition, where an elective system
had been imposed, the Act stripped traditional Chiefs of their authority
The government continued
to experiment with ways to repress the old "tribal system."
The Indian Advancement Act, 1884(53)
again offered slightly increased band council powers but also increased
the governments power to direct the bands political affairs.
For example, the Superintendent-General or an agent delegated by him was
empowered to call elections, supervise them, call band meetings, preside
over and participate in them in every way except by voting and adjourning
them.(54) Indians east of Lake Superior
were further encouraged to request this elective system by the extension
of the federal franchise in 1885. Despite these inducements, most bands
refused to come under the Act and in 1898 the federal franchise was withdrawn.(55)
The government continued to expand its control over band political affairs
by removing elected traditional leaders and prohibiting their re-election
under the 1884 legislation. In 1895, the Minister was given power to depose
chiefs and councillors where the elective system did not apply.(56)
"This amendment was included because the band leaders in the West
were found to be resisting the innovations of the reserve system and the
Governments effort to discourage the practice of traditional Indian
beliefs and values."(57)
Attempts were also made
to suppress the West Coast potlatches and winter dance ceremonies. To
the Indian people, these were important social, cultural and political
conventions that provided a means of affirming leadership and social order
and of recognizing property rights, inheritance and transfer of property.
To the federal government, however, they symbolized the tribalism that
it was intent on eliminating. Section 3 of An Act Further to Amend
The Indian Act, 1880 made the exercise of these practices a criminal
3. Every Indian or other
person who engages in or assists in celebrating the Indian festival
known as the "Potlach" or in the Indian dance known as the
"Tamanawas" is guilty of a misdemeanor, and shall be liable
to imprisonment ... and any Indian or other person who encourages ...
an Indian or Indians to get up such a festival or dance, or to celebrate
the same, ... is guilty of a like offence ...(58)
Indian opposition to the
Indian Act system of elective government continued, punctuated
by periodic government attempts to suppress completely all traditional
forms of aboriginal government. In the 1920s, the Canadian government
jailed the traditional leaders of the Haudesaunee, raided the council
hall, seized all official records and symbols of government and installed
an Indian Act council. The anti-potlatch laws continued as late
as 1951; under them, arrests were made and ceremonial items and symbols
of government seized and in many cases never returned.(59)
Apart from the 1985 amendments
to eliminate sex discrimination and to increase band control over band
membership, the last major revision of the Indian Act took place
in 1951. In 1969, a federal White Paper suddenly proposed immediate integration
by dismantling the Indian Act system completely and removing all
legal distinctions between Indians and other Canadians. Rejected with
great hostility by Indian groups, the proposal was quickly dropped. Later
attempts to reach agreement with Indian groups on a major revision of
the Act also failed.
Over the last 20 years,
there has been some acceptance of aboriginal peoples desire to retain
and to protect their special legal status in the Constitution. For example,
"existing aboriginal and treaty rights" are now constitutionally
the constitutional conferences held pursuant to the Constitution Amendment
Proclamation, 1983 failed to result in an agreement on how
to recognize an aboriginal right to self-government in the Constitution.
In the autumn of 1991, the federal government, as part of its initiative
for constitutional renewal, proposed that the right to self-government
be entrenched in the Constitution Act, 1982. The Assembly
of First Nations has reiterated its desire to seek constitutional recognition
of an inherent right to self-government. While these developments appear
promising, it remains to be seen whether the Constitution Act, 1982
will be amended.
Outside the constitutional
reform process, two groups have successfully negotiated self-government
arrangements which take them out of the Indian Act for purposes
of local government. The James Bay Cree arrangement was a consequence
of the land claims settlement. The Sechelt Band arrangement was the result
of a new policy allowing bands to negotiate increased powers either under
the Indian Act or under a separate statute (the Sechelt chose the
latter). A number of framework agreements for self-government under the
federal governments community self-government policy have been signed,
but not yet finalized. With respect to some bands, the negotiations are
in the context of land claims agreements.
The Right to Homestead
In 1862, an Indian offered
to buy of portion of Crown land at a public sale in British Columbia.
Colonel Moody, who was conducting the sale, reacted with such surprise
and shock that he felt compelled to write the colonial secretary for instructions.
Three weeks later, the secretary, after consulting the Governor, replied
that there could be no objections.(61)
Soon after this incident,
the colony, and later the province, introduced legislation prohibiting
aboriginal people from pre-empting (homesteading) but not from purchasing.
Initially, the 1860 Land Ordinance had reserved Indian settlements from
pre-emption but had not forbidden pre-emption by Indians. The colonial
legislation defined the exclusion from pre-emption rights in the broadest
Provided that such right
of pre-emption shall not be held to extend to any of the Aborigines
of this Continent, except to such as shall have obtained the Governors
special permission in writing to that effect.(62)
The province of British
Columbia retained this provision in successive Land Acts at least until
1948.(63) A related provision prohibited any "Indian"
or "Chinaman" from acting as an agent for a homesteader trying
to fulfill the statutory requirements of occupation.(64)
The practical effect of this legislation and B.C. native land policy was
that non-native settlers were permitted to homestead 320 acres of land,
while future reserves for Indians were to be limited to 20 acres for each
head of a family of five persons.(65) Existing B.C. reserves were frequently much
Indians in the remainder
of the West suffered a similar disability under federal law. The Crown
lands of what is now Alberta, Saskatchewan and Manitoba were administered
by the Canadian government until 1930. Accordingly, homestead laws in
these areas came under federal jurisdiction. Under the heading "Disabilities
and Penalties," section 70 of the 1876 Indian Act prohibited
Indians from homesteading on the prairies.(66)
Some Members at the time
questioned the discriminatory intent of section 70. On the other hand,
some contemporary observers have stated that its clear intent was to prevent
Indians who had signed treaties from receiving both a share of reserve
land and a homestead.(67)
However, the provision expressly applied to non-treaty and treaty Indians
alike and, in addition, most of the western treaties allowed for a maximum
of 160 acres or 1 square mile per family of five (and proportionally less
for smaller families) whereas federal homestead laws allowed free land
grants ranging from 160 to 320 acres per head of family. Section 70 of
the 1876 Indian Act would seem clearly to represent a further aspect
of the isolationist policy for unenfranchised Indians; i.e., the privileges
and benefits generally available to the rest of society were to be withheld
as inducements for these Indians to abandon their distinctive identities
and adopt European ways.
Section 10 of the 1876 Act
made it even clearer that a western Indian could not acquire a "free"
grant of Crown lands other than through a share of reserve land. Under
this provision, any improved land possessed by an individual Indian that
was to be included or surrounded by a reserve would simply be merged with
the reserve land. The Indian then had the same "privilege" as
an Indian holding under a reserve location ticket.
The prohibition against
Indian homesteading remained in effect until the Act was repealed in 1951.(68)
Right to Sell Agricultural Products
Further restrictions were
placed on the property rights of western Indians by section 1 of An
Act to Amend "The Indian Act, 1880,"(69)
which prohibited the sale of agricultural products grown on reserves in
the Territories, Manitoba or the District of Keewatin, except in accordance
with government regulations. Though some Members objected, Prime Minister
Macdonald defended the provision as a measure to prevent the sale of goods
"for liquor or other worthless items." This provision was retained
in the 1888 Act and an Order in Council was passed the same year prohibiting
the sale of agricultural products by western Indians without the consent
of an Indian agent.(70) A statutory amendment to this
effect was passed in 1930(71)
and a similar prohibition applying to all Indians was enacted in 1941,
restricting the sale of wild animals and furs.(72)
The agricultural products provision remained unchanged until sections
32 and 33 of the 1951 Act broadened its application to all Indians and
made such transactions void unless approved by the Superintendent in writing.
However, the Minister could exempt individual bands and individual band
Wills and Estates
Prior to 1876, Indian legislation
provided that enfranchised Indians could assign property by will(73) but said nothing about the devolution of
property of unenfranchised Indians. Section 9 of the 1876 Indian Act
set out various formulas for the division of property of any male Indian
dying intestate: for example, if there was no text of kin closer than
a cousin, any property would vest in the Crown for the benefit of the
band. Since there was still no provision allowing unenfranchised Indians
to will their property, Indians had no say in how their property would
The Indian Act, 1880
had a similar but more detailed provision, section 20, that also gave
the Superintendent-General the power at any time to remove a widow from
the administration and charge of reserve land (held under location ticket)
and of any goods held by her on behalf of her minor children. The Superintendent-General
was essentially an executor with extraordinary powers to remove at will
any guardian (including the widow) of the children of a deceased Indian.
There were no provisions for the separate devolution of property of Indian
In 1884,(74) a similar provision was enacted that also
allowed an Indian holding reserve land under a location ticket to will
the parcel and other property to family members or relatives. A number
of restrictions were placed on this right, including requirements for
band consent to the will and for no bequest to be made to any relative
further removed than a second cousin. New restrictions were placed on
the right of a widow to inherit by intestacy from her husband and to administer
his estate on behalf of the children. In either case, the widow had to
be "a woman of good moral character" and living with her husband
at the date of his death.
In 1894, section 20 was
again amended by An Act to Further Amend "The Indian Act."(75) Band consent was no longer required for a
will to be valid but consent of the Superintendent-General was necessary
for disposal of any interest in reserve land. In the case of an Indian
male dying intestate, his widow, to be entitled to inherit property or
to manage it on behalf of the children, need no longer have been living
with him at the date of his death. The Act specified, however, that the
Superintendent-General would be the sole and final judge as to the moral
character of the widow. Changes were made to the division of property
and for the first time the Act provided that the property of a married
Indian woman would devolve in the same way as that of a man.
In 1906, the Indian Act
for the first time dealt with the disposal of the property of unmarried
Indian women: "the property of any unmarried Indian woman who dies
intestate shall descend in the same manner as if she had been male."(76)
Later amendments, in 1914
and 1924, gave the Superintendent-General power to appoint administrators
for the estate of any deceased or insane Indian, and removed the "good
moral character" requirement, though only in the case of an Indian
dying intestate with no issue.(77) The "good moral character" condition
was reinstated in 1927:
Upon the death of an Indian
intestate his property of all kinds, real and personal, movable and
immovable, including any recognized interest he may have in land in
a reserve, shall descend as follows:
of the inheritance shall devolve upon his widow, if she is a woman
of good moral character, and the remainder upon his children, if
all are living, or, if any who are dead have died without issue;
is no widow, or if the widow is not of good moral character, the
whole inheritance shall devolve upon his children in equal shares,
if all are living, or if any who are dead have died without issue.
The 1951 Indian Act
reworked the language of the provisions dealing with descent of property,
removed the "good moral character" requirements but kept in
the Minister very broad powers over the administration of wills and estates.
There is some pressure to change the Act to make it more responsive to
aboriginal customs. The Cree-Naskapi (of Quebec) Act, which has
replaced the Indian Act with respect to the Cree of James Bay and
Northern Quebec, contains provisions authorizing the descent of property
according to Cree customs.(79)
The Minister, however, has
very broad discretionary powers over matters and causes testamentary where
Indians resident on reserve or Crown lands are concerned. For example,
the Minister may appoint or remove executors and administrators of estates,(80)
or may declare a will void for various reasons.(81)
While the Ministers decision under these particular provisions may
be appealed to the Federal Court of Canada, the right of appeal under
the statute does not apply to all the Ministers decisions. Much
of the Ministers authority has been delegated to other officials.
Under provincial legislation applicable to Canadians to which the Indian
Act does not apply, there is no such discretion vested in a government
representative. Legislation is much more detailed and matters must be
adjudicated, or directions sought, from the courts.
In 1985, subsections 48(13)
and (14) were repealed. These previsions determined the rules under which
illegitimate children inherited in an intestacy situation. Furthermore,
the definition of "child" for the purposes of distribution of
property on intestacy was amended to include a child born in or out of
wedlock. Consequently, it is now clear that legitimacy is an irrelevant
consideration with respect to the right to inherit property pursuant to
the Indian Act. Section 48(2) was also amended, increasing the
spousal share on intestacy from $2,000 to $75,000. The changes in 1985
ensured that, with respect to these two particular issues, the Indian
Act is more consistent with provincial legislation.
CONTROL OF INDIAN STATUS AND MINORITY RIGHTS
Until recently, the enfranchisement
of Indians was one of the major objectives of federal Indian legislation.
Enfranchisement brought the end of special legal status and the end of
legal acknowledgement of a separate Indian identity. To the government,
it meant the end of its special legal obligations and the successful absorption
of a minority culture. Enfranchisement has traditionally been equated
with "civilization"; that is, it was equated with the abandonment
of a culture perceived to be inferior and savage for a "superior"
European one. From a human rights perspective, enfranchisement policies,
whether voluntary or compulsory, have had a number of objectionable aspects.
Voluntary enfranchisement has required Indians to prove that they were
civilized in order to leave the legal regime of the Indian Act
and to exercise civil and political rights available to non-natives such
as the right to vote or to homestead Crown land. Compulsory enfranchisement
has forced hundreds of thousands of Indians to leave their communities,
language and culture.
In addition, the definition
of the word "Indian" under the Indian Act and earlier
legislation has determined who has the right to reside on a reserve and
to participate in programs made available to reserve residents and the
broader group of "status Indians." The necessity of strictly
defining "Indian" and, accordingly, restricting access to many
Indian rights, including treaty rights, was claimed to be justified as
a protective measure. In particular, the now repealed section 12(1)(b),
which took away the Indian status of a woman who married a "non-status"
man, was claimed to be necessary to prevent the domination and exploitation
of reserve communities by white men. Some question this claim, since Indian
women could not regain Indian status even after divorce or death of their
non-Indian husbands (except by remarrying an "Indian").(82) The protective purpose was also called into
question when examined in the historical context of enfranchisement policies:
As the maintenance of
a dependent protected class came to be a large financial burden on the
treasury, the pressure to reduce the size of the status group grew.
The process of enfranchising was made progressively easier. The right
of the band to consent to the enfranchisement of its members was eroded.
Finally, the pressure to "integrate" the Indians resulted
in the compulsory enfranchisement legislation of 1920 and 1923.
The trend in Indian legislation
over time was clearly to integrate the Indian (whether he wished to
or not) by the dual mechanism of the "shrinking" or increasingly
restricted definition of the term "Indian" and enfranchisement,
or the removal of Indians from status as they acquired the attributes
of "White" civilization. The result today is that large group
of natives outside the Indian Act: "non-status" Indians.(83)
In 1981, the U.N. Human
Rights Committee ruled that the operation of section 12(1)(b) of
the Act constituted a breach by Canada of article 27 of the International
Covenant on Civil and Political Rights. The compulsory loss of status
under the Act and the resulting denial of the right to continue living
on a reserve was held to constitute a denial of Sandra Lovelaces
right, as a member of a minority, to have access to her native culture
and language in community with the other members of her group. The federal
government has since repealed section 12(1)(b)(84)
and has developed policy and programs to allow bands to define their own
membership and to separate band membership from status under the Act.
These amendments and related policies have themselves become matters of
some controversy and the question of the right of Indian and other aboriginal
people to define themselves remains unresolved.
Other civil disabilities
were imposed on Indians. For example, Indian children were forced to attend
residential schools at great distance from their families and home and
were otherwise barred from participating in provincial school systems.(85)
An amendment in 1882 prohibited appeals from decisions in cases involving
only Indian parties where the sum did not exceed ten dollars.(86)
This was intended to curtail "Indian fondness for petty litigation."
Special criminal sanctions
were intended to suppress certain traditional Indian social or political
practices. Other measures, such as the restrictive liquor provisions,
were considered to be protective.
The suppression of liquor
sales to Indians began early in colonial history and became a fixture
of federal and provincial legislation after Confederation. In 1868, the
first federal statute dealing with aboriginal people had three separate
sections prohibiting the sale or barter of liquor to Indians.(87)
Penal sanctions (in the form of fines) were imposed only on the supplier
of liquor at this time. In 1874, for an Indian to be found in a state
of intoxication became an offence punishable by imprisonment of no more
than one month; an additional period not exceeding 14 days was imposed
if the Indian did not give the name of his supplier.(88)
Exemption was made for suppliers of alcohol for medical requirements.
"Intoxicating liquor" was broadly defined to include all manner
of drinks but also included opium and other intoxicating drugs or substances.
All these provisions, from 1868 to 1874, were consolidated in the Indian
Act, 1876,(89) which
also expressly prohibited simple possession of liquor on a reserve by
an Indian. The increasingly strict nature of post-Confederation liquor
provisions has been attributed to commitments by the Government of Canada
in Treaties No. 1 to 6 to exclude liquor from reserve lands and to protect
Indians "from the evil influence of intoxicating liquors."(90)
In 1886, supplying liquor
to Indians became an offence punishable by imprisonment of up to six months,
or a fine not exceeding $300 and not less than $50.(91)
As with previous legislation, half the fine went to the informer or prosecutor
and half to the government for the benefit of the Indian band concerned.
The Indian Act (1886) added the new offences of trafficking in
liquor from vessels and manufacturing and trafficking in liquor by Indians.
In addition, section 99 of the Act provided that anyone supplying liquor
to Indians on an order from someone else, was to be held as liable as
if he had supplied it independently. Section 99 also made it an offence,
punishable as liquor trafficking, for anyone to be found drunk or gambling
in an Indian residence, or to refuse to leave a reserve after sunset on
order of an Indian agent. (This provision was amended in 1894, so that
it was made an offence only to be drunk, gambling or in possession of
intoxicants on any part of a reserve and the penalty was cut in half,
to a maximum of three months imprisonment or a fine between $10
In 1887, being an Indian
in a state of intoxication was made punishable by either a fine or imprisonment
or both. In addition, the police were empowered to arrest an intoxicated
Indian without a warrant and to confine him until sober, at which point,
he was to be brought to trial.(93) By 1936, the Indian Act made it a
criminal offence to be in possession of any intoxicant in the home of
an Indian, whether on or off a reserve and abolished the practice of giving
half of the fines collected for liquor offences to informers.(94)
By 1950, work had begun
on a new revision of the Indian Act. Bill 267, introduced on 7
June 1950, would have liberalized the liquor provisions as recommended
by the 1948 Special Joint Committee Report on amendments to the Indian
That the Indians be accorded
the same rights and be liable to the same penalties as others with regard
to the consumption of intoxicating beverages on licensed premises, but
there shall be no manufacture, sale or consumption, in or on a reserve,
of "intoxicants" within the meaning of the Indian Act.(95)
In 1951, Indian representatives
suggested three options: continuation of prohibition; application of provincial
laws to Indians; or a compromise measure by which Indians would be allowed
to consume intoxicants in public places according to provincial laws but
not permitted to take liquor on to a reserve.(96) The eventual outcome, the
1951 Indian Act, controlled the possession and use of liquor by
Indians off a reserve and by any person on a reserve.(97)
The off-reserve provisions made it an offence for an Indian to have intoxicants
in his possession or to be intoxicated off a reserve. Provision was made
to allow off-reserve possession of intoxicants by Indians in accordance
with provincial law, where the province requested a proclamation to that
The 1951 Act defined "intoxicant"
as "alcohol, alcoholic, spirituous, vinous, fermented malt or other
intoxicating liquor or combination or liquors and mixed liquor a part
of which is spirituous, vinous, fermented, or otherwise intoxicating and
all drinks or drinkable liquids and all preparations or mixtures capable
of human consumption that are intoxicating." This definition was
much broader than that in laws applicable to all Canadians, and carried
a heavier penalty than was provided for in other provincial and territorial
legislation respecting intoxication in a public place.
Intoxication (section 95(b)
of R.S.C. 1970, c. I-6) in the absence of a provincial proclamation, and
possession of intoxicants (section 95(a) or R.S.C. 1970, c. I-6) therefore
became discriminatory off-reserve restrictions applying only to Indians.
Other off-reserve offences included the making or manufacturing of intoxicants
by an Indian (section 95(c) of R.S.C. 1970, c. I-6) and knowingly selling,
bartering, supplying or giving an intoxicant to an Indian (section 94(a)(ii)).
In R. v. Drybones(98) the Supreme Court of Canada
held that the off-reserve intoxication offence (section 95(b) of R.S.C.
1970, c. I-6) was inoperative as a contravention of the guarantee of equality
before the law without discrimination by reason of race, under the Canadian
Bill of Rights.(99) After Drybones, no one was prosecuted
for off-reserve liquor offences, but there were conflicting court decisions
on alcohol and uncertainty about the future operation or application of
In 1985, Bill C-31, an Act
to amend the Indian Act was passed, repealing the substantive provisions
relating to liquor offences on and off reserve. In their place, band councils
were given by-law powers:
the sale, barter, supply and manufacture of intoxicants on the reserve;
any person from being intoxicated on the reserve;
any person from having intoxicants in his or her possession on the
Other Criminal Offences
Indian people have suffered
a number of criminal sanctions for traditional cultural and political
practices. The suppression of the potlatch and winter dance ceremonials
has been discussed above, under self-government. The first such provision,
enacted in 1880 (quoted above) was amended and broadened in 1895.(101)
A further provision, aimed at Indian dances in general taking place off-reserve,
was enacted in 1914:
2. Any Indian in the province
of Manitoba, Saskatchewan, Alberta, British Columbia, or the Territories
who participates in any Indian dance outside the bounds of his own reserve,
or who participates in any show, exhibition, performance, stampede or
pageant in aboriginal costume without the consent of the Superintendent
General of Indian Affairs or his authorized Agent, ... shall on summary
conviction be liable to a penalty not exceeding twenty-five dollars
or to imprisonment for one month, or to both penalty and imprisonment.(102)
The persistence of the Nishga
in pursuing recognition of their land rights eventually led to a criminal
law prohibition in 1927 against the collection of funds for claims suits
without the written consent of the Superintendent-General.(103)
Cultural conflicts appear
to have underlain the special application of vagrancy and truancy laws
to native people. In 1889, Indian agents were given powers as justices
of the peace for the purposes of the Vagrancy Act, which was expected
to be strictly applied to Indians.(104) In 1927, the Superintendent-General was
given power to regulate Indian access to poolrooms on reserves. In 1930,
a statutory amendment allowed a magistrates court to ban an Indian
from a poolroom on or off reserve, where the Indian "by inordinate
frequenting of a poolroom on or off a reserve, misspends or wastes his
time or means to the detriment of himself, his family or his household."(105)
Over the history of the
Indian Act, there have been special "Indian" offences,
such as that of an Indian falsely representing himself to be enfranchised.(106)
Indians have also been made subject to special penalties. The Indian
Act, 1876 provided that:
71. Any Indian convicted
of any crime punishable by imprisonment in any penitentiary or other
place of confinement, shall, during such imprisonment, be excluded from
participating in the annuities, interest money, or rents payable to
the band of which he or she is a member; and whenever any Indian shall
be convicted of any crime punishable by imprisonment in a penitentiary
or other place of confinement, the legal costs incurred in procuring
such conviction, and in carrying out the various sentences recorded,
may be defrayed by the Superintendent-General, and paid out of any annuity
or interest coming to such Indian, or to the band, as the case may be.
Over the history
of federal native administration, both isolationist and assimilationist
policies have, with the occasional participation of provincial governments,
significantly encroached on the fundamental rights of aboriginal people.
The result has been a significant body of laws that have impaired the
ability of such people to determine their own future, whether as distinct
cultural communities or as individuals outside these communities.
* This paper is based on work by Wendy
Moss in 1987. It has been reviewed and updated by Elaine Gardner-OToole.
(1) Constitution Act, 1867, (U.K.) R.S.C.
1970, Appendix II, No. 5, s. 91(24).
(2) Indian and Northern Affairs Canada, Indian
Acts and Amendments, 1868-1950, and Contemporary Indian Legislation,
1951-1978, Ottawa, 1981.
(3) Walter Tarnopolsky and William Pentney,
Discrimination and the Law, DeBoo, Don Mills, 1985, p. 1-1.
(4) Ibid., p. 1-2.
(5) See John Leslie and Ron Maguire, ed., The
Historical Development of the Indian Act, 2nd ed., Indian
and Northern Affairs Canada, Ottawa, 1978 and Richard Bartlett, "Citizens
Minus: Indians and the Right to Vote," 44 Sask. Law Rev. (1980),
(6) An Act for the Gradual Civilization of
the Indian Tribes in This Province, and to Amend the Laws Respecting Indians,
S.C. 1857, c. 26.
(7) An Act Providing for the Organization
of the Department of the Secretary of State of Canada, S.C. 1868,
c. 42, s. 33.
(8) 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, S.C.
1869, c. 6, s. 13.
(9) Constitution Act, 1867, (U.K.) R.S.C.
1970, Appendix II, No. 5, s. 41.
(10) Bartlett (1980), at p. 164.
(11) Margaret A. Banks, "The Voting Rights
of Persons Other Than Canadian Citizens in Federal and Provincial Elections"
(1969), 8 Western Ontario Law Review 147.
(12) An Act to Make Better Provision for
the Qualification and Registration of Voters, S.B.C. 1875, c. 2.
(13) The B.C. Municipal Elections Act
from 1896 (S.B.C. 1896 c. 38) to 1948 (R.S.B.C. 1948, c. 105) prohibited
voting at any municipal election of a Mayor, Reeve, Alderman or Councillor,
by Indians, Chinese, Japanese (and from 1908 to 1936 "other Asiatics").
(14) Similar racial disqualifications existed
for elections under the Public School Act from 1884 (S.B.C. 1884,
c. 27) to 1948, (R.S.B.C. 1948, c. 297).
(15)  A.C. 151 at 155-156.
(16) The New Brunswick Elections Act
of 1889, S.N.B. 1889, c. 3, s. 24.
(17) The Saskatchewan Elections Act,
S.S. 1908, c. 2, s. 11.
(18) An Ordinance Respecting Elections O.Y.T.
1919, c. 7, s. 35.
(19) An Act to Further Amend the Laws Affecting
the Elections of Members of the Legislative Assembly and the Trial of
Such Elections, S.O. 1874, c. 3, s. 15.
(20) An Act to Further Amend the Law Respecting
Elections of Members of the Legislative Assembly, and Respecting the Trial
of Such Elections, S.O. 1875-6, c. 10, s. 4.
(21) The Election Act, 1886, S.M. 1886,
c. 29, s. 130.
(22) The Alberta Election Act, S.A.
1909, c. 3, s. 10.
(23) An Act to Amend the Quebec Election
Act, S.Q. 1915, c.17, s. 5.
(24) The Election Act, 1922, S.P.E.I.,
1922, c. 5, s. 32.
(25) Proclamation Relating to Electoral
Districts and Elections in the North-West Territories, O.N.W.T. 1881,
s. 17, 18.
(26) The Electoral Franchise Act, S.C.
1885, c. 40, ss. 2, 11.
(27) Bartlett (1980); Malcolm Montgomery, "The
Six Nations Indians and the Macdonald Franchise," Ontario History,
Vol. 57, No. 1, March 1965, p.13.
(28) Bartlett (1980), p. 169, 179.
(29) Ibid., p. 175.
(30) Dominion Elections Act, S.C. 1920,
c. 46, s. 29(1); The New Brunswick Elections Act, 1944,
S.N.B. 1944, c. 8, s.34; Provincial Elections Act Amendment Act,
1947, S.B.C. 1947, c. 28, s. 14; The Saskatchewan Election Act,
1951, S.S. 1951, c. 3, s. 29.
(31) World War I, World War II, Korean War:
Military Votes Act, S.C. 1917, c. 34, s. 2; Dominion Elections
Act, S.C. 1920, c. 46, s. 29(1); The Election Act, 1922, S.P.E.I.
1922, c. 5, s. 31; The Election Act, 1926, S.O. 1926, c. 4, s.
19, 23; The Manitoba Election Act, S.M. 1931, c. 10, s. 16(5);
The Statute Law Amendment Act, 1939 (No. 2), S.O. 1939 (2nd
sess.) c. 11, s. 3; An Act to Amend the Dominion Election Act,
1938, S.C. 1948, c. 46, s. 6; An Act to Amend The Dominion Elections
Act, 1938, and to Change its Title to The Canada Elections Act, S.C.
1951 (2nd sess.) c. 3, s. 6; The New Brunswick Elections
Act, 1944, S.N.B. 1944, c. 8, s. 34(2); The Manitoba Election Act,
R.S.M. 1940. c. 57, s. 16(5); An Act to Amend "The Election Act",
1922, S.P.E.I. 1946, c. 10, s. 2; Provincial Elections Act Amendment
Act, 1945, S.B.C. 1945, c. 26, s. 3; The Saskatchewan Election
Act, 1951, S.S. 1951, c. 3, s. 29; The Election Act, S.A.
1956, c. 15, s. 16(b).
(32) An Act to Amend the Dominion Elections
Act, 1938, S.C. 1950, c. 35, s. 1.
(33) An Act to Amend the Election Act,
S.Q. 1969, c. 13, s. 1.
(34) Provincial Elections Act Amendments
Act, 1949, S.B.C. 1949, c. 19, ss. 2, 3.
(35) An Act to Amend the Manitoba Election
Act, S.M. 1952, c. 18, ss. 15, 16.
(36) S.O. 1954, c. 25.
(37) An Act to Amend the Saskatchewan Election
Act, S.S. 1960, c. 45, s. 1.
(38) Bartlett (1980), p. 193.
(39) An Act to Amend the Elections Act,
S.N.B. 1963, c. 7.
(40) An Act to Amend the Election Act,
S.A. 1965, c. 23.
(41) "The Indians Got to Vote This Year,
but Fear Kept Many of Them away from the Polls," Macleans
Report, July 14, 1962.
(42) The Indian News (1972), Vol. 14,
(43) The Dominion Franchise Act, S.C.
1934, c. 51, s. 4.
(44) Bartlett (1980), p. 186.
(45) S.C. 1950, c. 35.
(46) Gibb v. White,  P.R.
(47) S.C. 1869, s. 10.
(48) John L. Tobias, "Protection, Civilization,
Assimilation: An Outline of Canadas Indian Policy," The
Western Canadian Journal of Anthropology (1976), Vol. VI, No. 2, p.
13 at p. 17.
(49) S.C. 1869, c. 6, s. 12.
(50) Tobias (1976), p. 17.
(51) Ibid., p. 19.
(52) The Indian Act, 1880, S.C. 1880,
c. 28, s. 72.
(53) S.C. 1884, c. 28.
(54) Tobias (1976), p. 19-20.
(55) Franchise Act, S.C. 1898, c. 14.
(56) An Act to Further Amend the Indian
Act, S.C. 1895, c. 35, s. 3.
(57) Tobias (1976), p. 20.
(58) S.C. 1884, c. 27.
(59) Canada, House of Commons, Report of the
Special Committee on Indian Self-Government, 1983, p. 13.
(60) Constitution Act, 1982, ss. 25
and 35 (Schedule B to Canada Act 1982, U.K. Stats. 1982, c. 11).
(61) Robert E. Cail, Land, Man and the Law,
University of British Columbia Press, Vancouver, 1974, p. 177.
(62) An Ordinance to Amend and Consolidate
the Laws Affecting Crown Lands in British Columbia, S.B.C. 1870, c.
(63) Land Act, R.S.B.C. 1948, c. 175,
s. 12(2) (a).
(64) The Land Ordinance Amendment Act,
1873, S.B.C. 1873, c. 1, s. 2.
(65) Cail (1974), p. 200.
(66) S.C. 1876, c. 18, s. 70.
(67) Leslie and Maguire (1978), p. 67.
(68) S.C. 1951, c. 29.
(69) S.C. 1881, c. 17.
(70) Leslie and Maguire (1978), p. 93.
(71) An Act to Amend the Indian Act,
S.C. 1930, c. 25, s. 6.
(72) An Act to Amend the Indian Act,
S.C. 1940-41, c. 19.
(73) An Act to Amend Certain Laws Respecting
Indians, S.C. 1874, c. 21. s. 9.
(74) An Act to Further Amend the Indian
Act, 1880, S.C. 1884, c. 27, s. 5.
(75) S.C. 1894, c. 32, s. 1.
(76) Indian Act, R.S.C. 1906, c. 81,
(77) An Act to Amend the Indian Act,
S.C. 1914, c. 35, s. 5; An Act to Amend the Indian Act, S.C. 1924,
c. 47, s. 2, 3.
(78) Indian Act, R.S.C. 1927, c. 98,
(79) S.C. 1984, c. 18, Part XIII.
(80) Indian Act, R.S.C. 1951, c. 29,
(81) Ibid., s. 43.
(82) Linda Rayner, The Creation of a "Non-Status"
Indian Population by Federal Government Policy and Administration,
Native Council of Canada, Ottawa, 1978, p. 13. See also Kathleen Jamieson,
Sex Discrimination and the Indian Act, Arduous Journey, J. Rick
Printing ed., McClelland and Stewart, Toronto, 1986, p. 112 at p. 114.
(83) Rayner (1978), p. 4.
(84) An Act to Amend the Indian Act,
S.C. 1985, c. 27.
(85) Chief Joe Mathias, Conspiracy of Legislation
(86) Leslie and Maguire (1978), p. 81; An
Act to Further Amend the Indian Act, 1880, S.C. 1882, c. 30,
(87) An Act Providing for the Organization
of the Department of the Secretary of State of Canada, S.C. 1968,
c. 42, ss. 9, 12, 13.
(88) An Act to Amend Certain Laws Respecting
Indians ..., S.C. 1874, c. 21, s. 1.
(89) S.C. 1876, c. 18, ss. 79-85.
(90) University of Saskatchewan Native Law
Centre, Liquor Offences under the Indian Act, University of Saskatchewan
Native Law Centre, Report No. 19, 1983, p. 2.
(91) The Indian Act, R.S.C 1886, c.
43, s. 94.
(92) An Act to Further Amend the Indian
Act, S.C. 1894, c. 32, s. 7.
(93) An Act to Amend "The Indian Act,"
S.C. 1887, c. 33, s. 10.
(94) Indian Act, R.S.C. 1927, c. 98,
s. 126 and An Act to amend the Indian Act, S.C. 1936, c. 20, ss. 6-12.
(95) Leslie and Maguire (1978), p. 147.
(97) S.C. 1951, c. 29, ss. 93-99.
(98)  S.C.R., 282.
(99) R.S.C. 1970, Appendix II.
(100) An Act to Amend the Indian Act,
S.C. 1985, c. 27, s. 16, 17.
(101) An Act to Further Amend the Indian
Act, S.C. 1895, c. 35, s. 6.
(102) An Act to Amend the Indian Act,
S.C. 1914, c. 35, s. 8.
(103) Indian Act, R.S.C. 1927, c. 98,
(104) Leslie and Maguire (1978), p. 90-95.
(105) An Act to Amend the Indian Act,
S.C. 1926-27, c. 32, s. 2; An Act to Amend the Indian Act, S.C. 1930,
c. 25, s. 16.
(106) 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, S.C.
1869, c. 6, s. 19.