THE INDIAN ACT
Mary C. Hurley
Law and Government Division
4 October 1999
TABLE OF CONTENTS
1876-1996: A VERY BRIEF HISTORY
1993-1999: LONG-TERM OBJECTIVE AND INTERIM REFORM
ISSUES FOR PARLIAMENT
THE INDIAN ACT
1876-1996: A Very Brief History
The Constitution Act, 1867
granted the federal Parliament legislative authority over "Indians, and Land Reserved
for the Indians." In 1876, the first consolidated Indian Act reflected the
governments preoccupation with land management, First Nations membership and local
government, and the ultimate goal of assimilation of Canadas Aboriginal population.
Today, despite numerous legislative changes ¾ notably in 1951 and 1985 ¾ the 1876
framework has been preserved fundamentally intact. The Indian Act remains the
principal vehicle for the exercise of federal jurisdiction over "status
Indians," and governs most aspects of their lives. It defines who is an Indian and
regulates band membership and government, taxation, lands and resources, money management,
wills and estates, and education.
The deficiencies of the Indian
Act have been well documented. Aboriginal peoples object to its inherent paternalism.
Government officials also acknowledge the Acts limitations as a framework for
relations with First Nations. While serving as an instrument of assimilation, however, the
Act has also provided certain protections for First Nations. These conflicting roles,
together with the differing views of Aboriginal self-government adopted by federal
authorities and First Nations in the modern constitutional context, intensify the
complexities of Indian Act reform.
1993-1999: Long-Term Objective and Interim Reform
Throughout the 35th Parliament,
the former Minister of Indian Affairs stated his commitment to eventual abolition of the Indian
Act. Negotiations toward that end have been underway in Manitoba, the
"pilot" province, since 1994. Notwithstanding this objective, in December
1996, Bill C-79, the Indian Act Optional Modification Act, proposed significant
"interim" modifications to the Indian Act in several areas, including
band governance, by-law authority and legal capacity, and regulation of reserve land and
resources. First Nations opposed the legislative process from the start. To a degree, the
bill as tabled responded to this opposition, both in its reduced scope from that of
initial proposals, and in its unusual "all or nothing" optional scheme whereby
the bill was to apply only to First Nations that elected to be governed by it, rather than
to all First Nations, as had originally been envisaged.
Despite these adjustments, an
apparently strong majority of First Nations across the country either remained firmly
opposed to Bill C-79 in its entirety, or found it seriously flawed. The bill was
criticized as an unwanted initiative, based on inadequate consultations, that ignored the
recently released Report of the Royal Commission on Aboriginal Peoples, and its
authors caution against piecemeal reform of the Indian Act as a viable
policy. First Nations spokespersons also objected to the bill as a potential threat to the
inherent right of self-government, as well as to other Aboriginal or treaty rights, and as
a perpetuation of government paternalism.
Bill C-79 died on the order paper
prior to second reading with the dissolution of Parliament in April 1997. No analogous
legislation has since been introduced.
Parliament has, however, modified
the scope of application of the land management regime in the Indian Act. In
February 1996, 13 First Nations from British Columbia, Alberta, Saskatchewan, Manitoba and
Ontario entered into a Framework Agreement on Land Management with the Minister of Indian
Affairs. A fourteenth First Nation from New Brunswick joined at a later date. The
agreement was intended to give the First Nations control over reserve lands and resources
and thus end ministerial discretion under the Indian Act over land management
decisions on reserves. Enabling legislation to give effect to the Framework Agreement was
enacted by Parliament in June 1999. Under the First Nations Land Management Act,
land-related provisions of the Indian Act cease to apply to signatory First Nations
that have enacted a land code in accordance with the terms of the FNLMA.
Issues for Parliament
In May 1999, then Minister of
Indian Affairs Jane Stewart expressed unwillingness to proceed with unilateral changes to
the Indian Act, an approach that had been tried and found wanting. The current
Minister, Robert Nault, has expressed the governments openness to dismantling the
Act, suggesting that decisions on significant modernizing changes to refashion the
relationship between government and First Nations could be made during the coming
parliamentary session. First Nations reaction to a renewed legislative initiative may be
expected to hinge largely not only on the nature and scope of the reform per se but
on the extent of their involvement in designing any reform package.
Priority areas of ongoing concern
to Aboriginal groups under the present Indian Act are also worth noting. These
include issues associated with 1985 amendments to membership rules aimed at eliminating
gender-based discrimination, ensuing population increases, land and other resource
shortages; governance and electoral issues; land management issues; taxation; the scope of
application of provincial legislation to First Nations; and legislative gaps in
matrimonial property matters.
Moss, Wendy and Elaine
Gardner-OToole. Aboriginal People: History of Discriminatory Laws. BP-175E.
Parliamentary Research Branch, Library of Parliament, Ottawa, November 1991.
Wherrett, Jill. The Indian
Act: Proposed Modifications. BP-433E. Parliamentary Research Branch, Library of
Parliament, Ottawa, January 1997.