lecture 23/24: indian act

when did the first indian act come out?

1876

first indian act is in 1876, much of it is basically…

a compilation of earlier colonial legislation

there are how many main revisions to the indian act?

2

when did the two main revisions to the indian act occur?

in 1951, and 1985 respectively

the government amends…

the indian act all the time so they are constantly changing it and fiddling with it

is the indian act still a thing today?

the indian act is currently still in effect - it provides the instructions for the government on how it is to relate to FN - everybody has agreed for a long time that it needs to be scrapped and replaced but nobody can agree on how - the royal commission on aboriginal peoples (1993) had some good ideas but they were largely ignored

the indian act remains the only…

race based legislation anywhere in the world

the indian act is in someways the pinnacle of…

colonial control

the indian act is totalizing in the sense that…

it seeks to regulate and control nearly every aspect of indian lives

in the 1920s the south african government sent a commission to investigate our indian act why?

to use it as the legislative basis of apartheid

the understanding behind the indian act is the…

“vanishing indian” - it expected that in about 30 years all the indians would have disappeared and so it was edited for that time frame - now here we are 138 years later

what is the first thing the indian act does?

it establishes the minister as the superintendent general of indian affairs and the deputy minister as the deputy superintendent general - so it established the department

indian department: (3)

• originally, indian affairs was in the department of the interior and prime minister john a. macdonald was the minister

• indian affairs was then moved under the department of mines where it stayed until the 1950s (throughout this entire time it was a very small department with only about 8 people not including clerks/field staff)

• in the 1950s it was part of the department of natural resources and then the department of citizenship and immigration until the 1960s when it became its own department of indian affairs and northern development

inuit and northern affairs: (2)

• section 4 of the act states that it does not apply to inuit - this is important because it means that inuit have never come under the restrictions and regulations of the act

• this act does not deal with northern affairs, the other half of the department which is responsible for the 3 northern territories (yukon, NWT, nunavut) and for the administration of inuit - they were always very separate organizations

defining an indian: (3)

• the 1876 act follows the gradual civilization act in its definition:

• indian was defined as: any male person of indian blood reputed to belong to a particular band; any child of such person; any woman who is/was lawfully married to such person

• the rules we discussed for enfranchisement are very similar except that now involuntary enfranchisement for indians who obtained a university degree or religious order is introduced as well as an indian who lived outside of canada for a period of 5+ years without permission from the department was enfranchised

did the definition of who is an indian change?

yes, over time the simpler definition develops into the one used in the 1951 act

1951 act: define an indian (6)

11. subject to s.12, a person is entitled to be registered if that person:

• considered to be entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of various tribes, bands or bodies of indians in canada

• is a member of a band: for whose use/benefit, lands have been set apart/agreed by treaty to he set apart OR that had been declared by the governor in council to be a band

• is a male person who is a direct descendant in the male line of a male person described in the prior paragraphs

• is the legitimate child of: a male person described in the above paragraphs OR a person described just above

• is the illegitimate child of a female person described in the first 2 points or 4th pount

• is the wife or widow of a person who is entitled to be registered by virtue of all above points

1951 act - section 12: (3)

the following persons are not entitled to be registered namely:

• a person who: has received/been allotted half breed lands/money scrip; is a descendant of a person described above; is enfranchised; is a person born of a marriage (and is 21+) whose mother/father are not persons described in section 11 abd or entitled to be registered by virtue of paragraph e, unless being a woman, they are wife/widow described in section 11

• woman who married a person who is not an indian, unless that woman is subsequently the wife or widow of a person described in section 11

1951 an act respecting indians: (8)

• the indian register was established to record all individuals entitled to registration

• indian registrar can delete or add names from the register

• individuals can protest additions or deletions to the register

• when a male is added or deleted from the register, so too are his wife and kids

• women who marry a non-indigenous man are not eligible for registration and are removed from band lists upon marriage

• individuals are eligible for voluntary enfranchisement id they meet specific requirements

• wife/kids of a man who is enfranchising must be clearly named on the order of enfranchisement to be removed from the register

• double mother rule was introduced to remove status from grandchildren at age 21, whose mother and paternal grandmother both acquired status via marriage to an Indian

reserves: (4)

term reserve means any tract/tracts of land set apart by treaty/otherwise for the use/benefit of granted bands of indians of which the lead title is in the crown, but which is unsurrendered and includes all the trees, wood, timber, soil, stone, minerals, metals, or other valuables thereon or therein

• introduces the idea of location tickets - subdividing the reserves into lots although indians do not own the lot

• prohibits using reserve lands as collateral in a mortgage

• only allows surrenders following royal proclamation rules

schools: (3)

• original 1876 indian act did not have a section on schools, as the industrial/residential school system had not yet developed

• in 1894 an amendment to the Act makes attendance at residential schools compulsory

• in 1920, it became an offence if the parents of indian children did not allow their children to go to school, parents could be jailed or fined

post secondary education for First Nations: (2)

• it is NOT free

• each band is given a flat grant to cover post secondary education for their members, they have to work out internally how they are going to spend it and there is rarely enough money to cover everything

could First Nations vote in manitoba?

in manitoba first nations were allowed to vote until 1876 when legislation was passed to ban this right

band councils: (5)

• “whenever the governor in council deems it advisable for the good government of a band to introduce the election system of chiefs, he may order in council provide that the chiefs of any band be elected”

• first nations had no say in how they were to acquire their leadership - they were to move towards “democratic” elections when the government felt that they were ready

• explicit intent was to undermine the power and authority of the traditional chiefs (as it did)

• established that there would be one chief and two counsellors for every 200 people [changes to 100 people in 1951, no less than 2 counsellors and no more than 12] - for 3 year terms (unless deposed by the governor for dishonesty, intemperance, immorality or incompetence)

• allows the government to set aside elections if they were deemed to be fraudulent - basic point was to give the outward semblance of democracy, undermine traditional chiefs and give control over the councils to the government

power of the band councils:

power was fairly low level municipal responsibilities & municipal governments are created/maintained by the provinces

examples of band council responsibilities:

1. to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases

2. the regulation of traffic

3. the observance of law and order

4. the prevention of disorderly conduct and nuisances

5. the protection against and prevention of trespass by cattle and other domestic animals, the establishment of pounds, the appointment of pound-keepers, the regulation of their duties and the provision for fees and charges for their services

6. the construction and maintenance of water courses, roads, bridges, ditches, fences, other local works

7. the dividing the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of an my class of buildings or the carrying on of any class of business, trade, or calling in any such sone

8. the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band

9. the survey and allotment of reserve lands among the members of the band and the establishment of a register of certificates of possession and certificates of occupation relating to allotments and the setting apart of reserve lands for common use, if authority therefore has been granted under section 60

10. the destruction and control of noxious weeds

11. the regulation of beekeeping and poultry raising

12. the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies

13. the control and prohibition of public games, sports, races, athletic contests and other amusements

14. the regulation of the conduct and activities of hawkers, paddlers or others who enter the reserve to buy, sell or otherwise deal in wares or medhandise

15. the preservation, protection and management of fur bearing animals, fish and other game on the reserve

16. the removal and punishment of persons trespassing upon the reserve or frequenting the reserve for prescribed purposes

17. with respect to any matter arising out of or ancillary to the exercise of powers under this section

18. the imposition on summary conviction of a fine not exceeding one hundred dollars or imprisonment for a term not exceeding thirty days or both fine and imprisonment for violation

the powers of the band council are essentially…

a limited form of municipal government and not much more

while band councils were established, recall that First Nations had a much…

wider understanding of government/band councils and had a much broader realm of responsibilities they were used to managing/governing - now they were heavily limited/restricted via Canada’s imposition

Six Nations Reserve band council: (3)

• the Haudenosaunee of Six Nations in southern ontario (branford) has established the tradition confederacy council on their lands based around the traditional chiefs of the confederacy

• the confederacy argued that they were not wards but allies of the crown and took their case to the house of commons and the senate and when they would not listen directly to the king and the league of nations

• also concerned that the indian act said only male members of the band council could vote and act in council - directly contradicted the power of women in Haudenosaunee society

Six Nations Reserve band council: continued

• in 1924, the indian department imposed an elected council of one chief and nine councillors - the confederacy council refused to recognize it and continued meeting - the indian department then sent in the RCMP to break up the confederacy council and impose the elected council

• about 5% of the population have participated in the band council elections over the past 100 years - the confederacy council continues to operate alongside the elected band council - of course, only the band council receives any of the funding from the government

• the same thing happened in Akwesasne in 1899 and today in Kanesetake the same problems occur

elsewhere… (outside of Six Nations ex)

the first nations would elect their traditional chiefs to these band council positions and the indian department would depose of them then the first nations would re-elect their traditional chiefs and so on and fourth it went

the Six Nations band council helps us to understand the current conflicts…

in BC where the band councils have agreed to the building of pipelines through the territory, but these have been opposed by the traditional chiefs - who does the oil companies negotiate woth

Indian monies: (4)

• any money made from the sale of reserve lands, from the sale of resources or products from the reserve or in any other way does not go to the band council but instead goes into a consolidated trust fund held by the government

• as of 2018, that fund had $634 million from 608 bands in 1216 trust accounts - its estimated that over the life span of the fund some $36 billion has flowed through the fund

• bands have to apply to the government to use that money, in a very restricted number of ways

• funds were used to pay the salaries of school teachers and for health care on some reserves but First Nations objected that these were treaty obligations and not to be paid out of the funds

sale of produce on the prairies: (2)

• no produce produced on reserves in MB, SK, AB, can be sold to anyone - unless approved by superintendent (government never seems to approve anything beneficial to the First Nations tho)

• replaced in 2014, this came about because of the success of the FN in the treaty 4 area in farming

describe the initial success of the First Nations in the treaty 4 area in farming:

(4)

• first nations realized that the buffalo were gone, and they needed to learn how to farm in order to support themselves so they did

• they pooled their treaty annuity payment and with it bought the most modern farming equipment available (1890s - tractors, ploughs, harrows) - with their land held in common they already had large areas to farm - there was no mortgage on their property, no loans on the equipment - this meant that they could sell their farm produce at a much lower price than the incoming settler farmers

• settlers had mortgages on their property, house loans and equipment loans, settlers on their prairies complained to the government that the FN were undercutting them and so the indian department brought in the regulation that they could not sell their produce without department permission

• the FN response was to hell with farming and retired the practice (peasantization policy)

peasantization policy:

could only farm for subsistence use (cannot sell food on the market)

taxation: (5)

• is a real bug bear for non FN folks

• following property exempt from taxation: (a) the interest of an indian or band in reserve or surrendered lands, (b) the personal property of an indian or band situated on a reserve

• and no indian/band is subject to taxation in respect of the ownership, occupation, possession or use of any aforementioned property

• property is therefore exempt from taxation (why would the government tax themselves)

• basic point here is that money earned on the reserve is not taxable but money earned off the reserve is

First Nations living and working on reserve _____ have to pay taxes?

DON’T!

First Nations not living or working on reserve ______ have to pay taxes?

DO!

laws of general application: (2)

this has proved to be a real problem - it says that indians come under provincial law when the issue has not been dealt with in the indian act or treaty - the big issue here is particularly that of resource extraction rights, hunting, fishing and harvesting rights in general

• game laws/hunting are provincial responsibility - under treaties First Nations are given the right to hunt and trap as they always have BUT the provincial government has always tried to fight that and to make game laws apply to first nations too (regulating their hunting)