The Indian Act is the principal statute through which the federal government administers Indian status, local First Nations governments and the management of reserve land and communal monies. It was first introduced in 1876 as a consolidation of previous colonial ordinances that aimed to eradicate First Nations culture in favour of assimilation into Euro-Canadian society. The Act has been amended several times, most significantly in 1951 and 1985, with changes mainly focusing on the removal of particularly discriminatory sections.
The Indian Act pertains only to First Nations peoples, not to the Métis or Inuit. It is an evolving, paradoxical document that has enabled trauma, human rights violations and social and cultural disruption for generations of First Nations peoples. The Act also outlines governmental obligations to First Nations peoples, and determines “status” — a legal recognition of a person’s First Nations heritage, which affords certain rights such as the right to live on reserve land.
Early Policies: 1763–1876
The Royal Proclamation of 1763 laid down the basis for how colonial administration would interact with First Nations peoples in the centuries that followed. The Proclamation guaranteed certain rights and protections for First Nations peoples, and established the process by which the government could acquire their lands. Further policies were enacted in the first half of the 19th century. These policies aimed to assimilate First Nations peoples into the growing settler population, while also protecting them and their lands. Legislation concerning First Nations peoples required a definition of what the government considered to be an “Indian.”
The 1850 Act for the better protection of the Lands and Property of the Indians in Lower Canada was one of the first pieces of legislation that included a set of requirements for a person to be considered a legal Indian — a precursor to the concept of “status.” These requirements were based on blood, and essentially said that people “shall be considered as Indians” if they were of “Indian blood” and were members of a “Body or Tribe of Indians.” All descendants of such people, non-Indians who “intermarried with such Indians,” people whose parents (one or both) would have been considered Indians, and “all persons adopted in infancy by any such Indians,” were also considered to be Indian.
The Constitution Act, 1867, assigned to Parliament legislative jurisdiction over "Indians, and Lands reserved for the Indians." Other acts drew heavily from earlier legislation passed by the then-Province of Canada. Such legislation promoted assimilation into non-Indigenous society. Indian status was seen as a transitional state, protecting First Nations peoples until they became settled on the land and acquired European agricultural habits. In particular, the Acts commonly known as the Gradual Civilization Act of 1857 and the Gradual Enfranchisement Act of 1869 were almost uniformly aimed at removing any special distinction or rights afforded First Nations peoples and at assimilating them into the larger settler population. This was initially meant to be accomplished by the Gradual Civilization Act through voluntary enfranchisement (i.e., a First Nations person would relinquish their status in exchange for land and the right to vote), but only one person voluntarily enfranchised. As a result, the government then began unilaterally enfranchising First Nations people.
A number of Indigenous groups made treaties — in particular the first five numbered treaties — with Canadian governments before the 1876 passing of the Indian Act. Those groups may consider their legal identity as First Nations people to flow through those treaties, rather than through the Indian Act.
Entrenched Paternalism: 1876–1951
In 1876, the government consolidated the Gradual Civilization Act and the Gradual Enfranchisement Act into the Indian Act. Through the Department of Indian Affairs (now Indigenous and Northern Affairs Canada) and its Indian Agents, the Indian Act afforded the government sweeping powers with regards to First Nations identity, political structures, governance, cultural practices and education. These powers were extremely paternalistic, and allowed officials to determine rights and benefits based on “good moral character.” Further, the Act replaced traditional structures of governance with band council elections — all at the discretion of the Department and its agents.
The Act was an attempt to generalize a vast and varied population of people and assimilate them into non-Indigenous society, and therefore forbade First Nations peoples and communities from expressing their identities through governance and culture. Subsequent amendments required First Nations children to attend industrial or residential schools (1894 and 1920) and made it illegal for First Nations peoples to practice religious ceremonies such as the potlatch in 1884. The definition of religious ceremonies did not include dancing; however, Indian Agents allowed the lines to be blurred, and were instructed to use whatever means necessary to discourage dancing like that seen at powwows or Sun Dances. An amendment in 1914 outlawed dancing off-reserve and in 1925 dancing was outlawed entirely. Amendments to the Act in 1927 made it illegal for First Nations peoples and communities to hire lawyers or bring about land claims against the government without the government’s consent.
The 1996 report of the Royal Commission on Aboriginal Peoples stated that many of the Indian Act’s measures were oppressive, and noted that “Recognition as 'Indian' in Canadian law often had nothing to do with whether a person was actually of Indian ancestry.” Indeed, the administration of status was a tool of assimilation and cultural destruction. A First Nations person lost status if they graduated university, became a Christian minister, or achieved professional designation as a doctor or lawyer. In 1961, the government removed Section 112 — the so-called “compulsory enfranchisement” section — to end this and other assimilatory practices. For nearly a century, it was effectively illegal to be a First Nations person in a traditional sense, and impossible to interact with non-Indigenous society in any meaningful way without losing status.
Problematic Reforms: 1951–1985
The period immediately following the Second World War involved much societal introspection in Canada, and led to a reconsideration of some of the more restrictive and oppressive measures imposed by the Indian Act. A series of proposed reforms were rejected or opposed by First Nations peoples because they were not involved in the process. As a result, the government of Canada broke with tradition and through the Joint Committee process, consulted with First Nations communities for the very first time ever about changes to the Indian Act. The resulting overhaul in 1951 removed some of the most egregious political, cultural and religious restrictions, but instituted new restrictions on status that discriminated against First Nations women. The new restrictions included the loss of status for a woman marrying a non-status man, prohibited status people from possessing intoxicants or being intoxicated, and extended provincial laws to reserve communities.
Under the revised Indian Act, the potlatch and other gatherings were no longer outlawed, communities were able to bring about land claims against the government and women were allowed to vote in band council elections. The Act also replaced the concept of “Indian blood” with one of status through registration. In other words, simply having First Nations heritage was not enough to qualify for status. The Royal Commission on Aboriginal Peoples called such registrations, heavily restricted in regards to women, a “legal fiction.” For example, the “double mother” rule revoked a child’s status on its 21st birthday if both its mother and grandmother had not qualified for status. Indeed, the Royal Commission further noted that the revisions contained in the 1951 overhaul did little but return the Indian Act to its 1876 state, while the additional restrictions on the transfer of status did harm to First Nations women and their children.
The provisions regarding a woman’s status were particularly extreme. A woman’s status rights flowed entirely through her husband. A non-status woman who married a man with status would gain status herself. A status woman who married a status man had her band membership tied to his so she was no longer a member of her own band, and she lost her status entirely if she was widowed or abandoned by her husband.
Restrictions, the White Paper, and Human Rights
In 1969, the Trudeau government released its White Paper, which declared the government’s intention to entirely eliminate Indian status and the Department of Indian Affairs. Pierre Trudeau was against special status for any group of people, and fully intended to eliminate Indigenous peoples as a distinct group. His idea was to assimilate Indigenous peoples into Canadian society, thereby eliminating any special status and treatment they received up to that point. This included reserve lands, fishing and hunting rights, education rights, medical services, use of land, and economic development on reserve lands. Understandably, the White Paper was met with outrage from First Nations peoples and was immediately countered by the “Red Paper,” created and presented by Harold Cardinal, then-president of the Indian Association of Alberta. Due to the fierce and continued opposition by Indigenous groups and their supporters, the Canadian government quickly withdrew the White Paper.
A 1973 decision of the Supreme Court of Canada was widely criticized when it held that the provision tying a woman’s status to her husband’s did not discriminate against women, even though status men kept their status if they “married out.” (See also Jeanette Lavell.) In 1977, the Canadian Human Rights Act was passed. In it, Section 67 exempted it from being applied to provisions in the Indian Act, largely understood to be an admission that the Indian Act would not meet human-rights standards. That section was repealed in 2008. In 1981, the United Nations Human Rights Commission ruled that Canada had violated Article 27 of the International Covenant on Civil and Political Rights in the case of Sandra Lovelace — a Maliseet woman who had lost her status through marriage. The government had prevented Sandra from returning to her home community because, according to the Indian Act, she had married out and was no longer considered to be a band member.
Challenge and Change: 1985 and Beyond
In 1985, responding to growing concern over the lack of equality in the Indian Act, the government passed Bill C-31. Those who had lost status through marriage were reinstated as Status Indians and as band members. Their children gained status, but would not gain band membership for two years. This interval was intended to give bands time to enact their own membership codes, which could exclude the children, but not their mothers. If such a code was not enacted prior to June 1987, the children gained band membership as well.
Bill C-31 also fully removed all remaining enfranchisement clauses, though the minister of Indigenous affairs retains broad and sweeping powers in some areas, and the Indian Act remains a target of criticism. Bill C-31 reinstated status to people who had been denied it for discriminatory reasons, and gave bands control of their membership lists. Though bands may have members that are non-status, funding through Indigenous and Northern Affairs Canada is based on status members, which is an incentive for bands to have as few non-status members as possible. Additionally, the Act continues the practice of denying status to children who “marry out.” The child of a woman whose status was reinstated under Bill C-31 will not pass on status to her children if the other parent is non-status.
In November 2017, the federal government pledged to end sex-based discrimination in the Act by proposing an amendment that would restore status to First Nations women and their children born before 1985 and ensure that women can pass down status to their children.
The contemporary version of the Indian Act still outlines the various rules around reserves, financial guardianship of minors and the mentally incompetent, management of band resources, elections, and other aspects of life on a reserve. The Indian Act is essentially an outdated statute that, despite a great deal of opposition, continues to resist change. Numerous attempts to reform the Indian Act have been initiated since the 1990s; however, these legislative efforts were mired in controversy, as First Nations across the country opposed them on a number of grounds, not the least of which was a lack of full and proper consultation. Instead, a number of agreements, such as the First Nations Land Management Act of 1999, have allowed First Nations governments to move toward some level of self-government without abolishing the Indian Act.