Canadian Law and Indigenous Peoples (Oct. 7)

Indian Act,

Who approved the Charter of Rights and Freedoms?

The federal government and 9 out of 10 provinces (Quebec did not sign).

At the time of patriation (1982), there was no rule in Canada that required all provinces to agree to constitutional changes.

The only rule was:

• The federal government (Prime Minister Trudeau), and

• A “substantial majority” of provinces

Why was the Charter a major shift in Canadian politics?

It moved power from Parliament to the courts, allowing laws to be ruled unconstitutional.

• More power to the courts, more weight related to their decisions.

What major change happened to the Indian Act in 1985?

The government removed the enfranchisement sections (109–113).

Enfranchisement was where First Nations people lost their Treaty status through marrying a non-Indigenous person (for women), and becoming a doctor, lawyer, judge, military (men).

Who gained Status back after 1985?

• Women who lost status through marriage

• Children of these marriages

• Men and families who had been enfranchised

Why was the Indian Act unique globally?

It is a law that controls nearly every part of First Nations life, including identity, voting, land, and governance. 

Regulates every aspect of a First Nations persons life. 

What is the Indian Register? (Section 5)

A federal list of everyone legally recognized as a Status First Nations person.

What is the difference between “Status” and “Non-Status”?

• Status: Registered under the Indian Act.

• Non-Status: First Nations ancestry but not legally registered under the act. Does not have entitlement to the same Treaty rights as those that do. 

Why was having Status originally seen as “bad”?

The goal of the government was to get rid of Status through enfranchisement; it was seen as something to escape.

Who holds legal title to reserves?

Section 18 

The Crown (first the British, now the government of Canada) holds the land for the use and benefit of the First Nations band.

Why is Section 18 controversial?

The government can decide how reserve land is used, sometimes without consent, using discretionary power.

What is Section 74(1) of the Indian Act?

It creates band councils, elected by members but ultimately answering to the federal government.

• The Chief and Band council are democratically elected by members within that community, however they are still completely responsible to the government (Prime Minister and Minister).

  • A top-down approach of governance that had been imposed upon First Nations people.

Why is the band council system problematic?

It is not traditional Indigenous governance, it is a top-down, colonial system.

Tried to stop women from being a part of Chief and council. Dismantled natural structures of governance.

• E.g. in BC they have hereditary Chiefs, who are chosen through family lineage in a community.

What is a Band Council Resolution?

A decision made by the band council that must be approved by Ottawa before it takes effect.

This means the minister of the department has the ultimate say, in whether or not the resolutions pass. Meaning that the communities are still subject to oversight.

How has the federal government historically controlled Band Councils?

By controlling funding. They can restrict or stop money, which had implications of the First Nations governance, programs and communities.

Who could vote in band elections under Section 77?

Only Status First Nations people living on reserve.

When can a Chief or Councillor be removed? (Section 78 - Indian Act)

• convicted of an indictable offence

• declared ineligible

• removed by Minister’s discretionary power

• death or resignation

What powers do band councils have (Section 81)?

They make bylaws similar to municipal governments, but also handle major responsibilities like education and housing. It still requires ministerial approval before bylaws take effect. 

What does Section 88 say?

Provincial laws apply to First Nations unless they conflict with treaty rights. Provincial laws apply to First Nations unless they conflict with treaty rights.

• This specific section of the Indian Act, is why some people argue it is important to keep. This protects and ensures governments follow Treaty rights (education, taxes, healthcare). 

• This section appears in hundreds of court cases that violate that protection of Treaty rights.

Section 78(2) Indian Act

This section discusses when a Chief of Councillor can be removed from office.

• This is if they are convicted of the indictable offence.

• Minister has discretionary power to get rid of Chief and Band councillors.

• If the Chief dies or resigns.

• Becomes ineligible to hold office for reasons outlined in the act.

What is the Indian Act?

The Indian Act (1876) is a Canadian federal law that controls many parts of life for Status First Nations people in Canada.
It decides things like:

• who is a “Status Indian”

• how band councils work

• how reserves are managed

• what powers First Nations communities have

• how money is given to First Nations

• how elections work on reserves

It was created without Indigenous input and has been changed many times. It still exists today.

Historical Cons of Indian Act 

• Forced assimilation into the dominate Canadian society.

• Residential schools were enforced.

• Government control over governance. 

• Loss of women’s rights, status and roles. 

• Loss of land control, ownership and traditional land bases. 

• Bans and prohibition of cultural practices.

• Mobility restricted (for migratory nations). 

• No voting or political withstanding.

Historical Pros of Indian Act 

• Formal recognition of First Nations peoples and identity.

  • Legal acknowledgement.

• Creation of reserves for First Nations use.

  • Land could not be taken away by the province, settlers or others.

• Some treaty rights were recognized inside the Act.

  • S. 88 protected Treaty rights from provincial laws.

• Government obligations in a changing landscape. 

Section 83(1) of the Indian Act

The by-laws that the Chief and Band council are able to pass, and that require the approval of the Minister to be able to carry out.

Section 74(2) Composition of Council

Indian Act

Dictates that there can only be one Chief and one Councilor for every one hundred members of the band. Or not less than two or more than twelve councilors, and no more than one Chief.

Designated amount of Chiefs (only one) and councilors.

Section 77(2) Councillor

Established that a band member had to be 18 years of age and living on reserve to vote.