Are you a person of non-aboriginal heritage living in Canada, and you hear about this “Indian Act” once in a while, but don’t get what all the fuss is about? Do you occasionally hear what a big problem it is for aboriginal people, but don’t understand why they don’t just get rid of it or change it when this solution is literally handed down to them by the Prime Minister (i.e., in 1969 by PM Trudeau or more recently in 2012 by PM Harper)? I’m glad you found this blog post. There’s some things you need to know about it.
But before I get to the Indian Act, because it is written to be functionally inseparable from the Crown treaties, here’s a totally superficial dusting of how the Crown treaties were/are supposed to work:
Legally non-aboriginal people get certain land on which to live and prosper and form their own system of government (i.e., Canada). Non-aboriginal government has a duty to consult with aboriginal government before they do certain kinds of environmental development or resource extraction on that land (e.g., forestry, mining, fracking, fish-farming, culling entire species of animals, using slave labour to build cross-continental railroads, building massive pipelines buried underground that could explode and leak toxic crap everywhere at any given moment because the earth is constantly shifting its weight around, etc.) If aboriginal government does not agree to permit that development, it just doesn’t happen. I think we should all be able to agree that there’s been something going on that isn’t quite congruent with this aspect of the Crown treaties, for quite some time already and throughout Canada’s history.
Legally aboriginal people get to keep certain lands (somewhat ironically called reserves) on which to live and prosper, and maintain their own form of government. In exchange for the land surrendered to non-aboriginal people, aboriginal people are entitled to receive education, healthcare, and certain kinds of hunting and fishing rights (i.e., largely, the right to non-interference by non-aboriginals) provided to them by the non-aboriginal government (that doesn’t mean they have to take it—it just means it’s always there as an option to them). Aboriginal people are collectively owed a 40% cut of the profits from land development and resource extraction that non-aboriginal government receives approval to move forward with (if non-aboriginal government proceeds with land development or resource extraction without the consent of aboriginal government, this is just theft or expropriation).
Aboriginal people collectively agreed to the treaties in good faith, although many nations very legitimately dispute the extent to which this agreement-making can be considered “voluntary”. Early on in these nation-to-nation relationships (i.e., Crown treaties), aboriginal peoples collectively declined to demand their cut of non-aboriginal land development and resource extraction, so that money was to be held in trust by the Crown. Instead, it was all used up to pay for the labour that was used to build the Canadian Pacific Railway, much of which was unnecessarily hazardous wage-slavery by Chinese railway workers. This is one of the reasons (apart from universal healthcare and public infrastructure) why all Canadians are required to pay taxes (and for the record, aboriginal people today pay taxes too). Non-aboriginal Canadians have been inheriting a collective treaty debt by virtue of birth lottery for several generations, though rather conspicuously, this isn’t taught in public schools.
And now, what you need to know about the Indian Act, which “manages” these treaty relationships between aboriginal nations and Canada:
1. Non-Aboriginal People (i.e., You) are in the Indian Act Too.
The Indian Act sets out the legal definition for who is considered a person of aboriginal status under Canadian law, and therefore who is entitled to certain charter rights and freedoms (since 1970) in addition to treaty rights. While aboriginal status means certain rights and freedoms, it also means being dictated to about a number of things that impact the structure of one’s day-to-day life and greater communities through all the other stuff that’s in the Indian Act. The definition of legal aboriginal status also means that by virtue of negation, all non-aboriginal people are legally defined as well. It is important to note that being a person of aboriginal heritage is, however, not enough to qualify one for legal aboriginal status. If for any of several possible reasons, a person of aboriginal heritage is or has been stripped of their legal aboriginal status (i.e., this is called enfranchisement), they are legally considered a non-aboriginal person—they have lost treaty rights allowing them certain necessary freedoms to continue their ancestor’s cultural traditions, and they have lost the ability to pass those rights down to their own children. It’s kind of like if you were told you suddenly couldn’t continue on in your merry non-aboriginal way any more. No one wants their very identity dictated to them by a government.
Part of what it means to be legally non-aboriginal in this country is that there are several rights and responsibilities you don’t have and aren’t entitled to, but this also allows you a lot of certain kinds of rights and freedoms that are denied to legally aboriginal people. That was just part of the deal during the formation of the Crown treaties long before our time. If you find this unfair, I’m afraid there’s not much you can do but keep learning about it. As a non-aboriginal person, you’re written into the Indian Act, whether you’ve acknowledged it before or not. Your right to own land rather than just live on it, is also prescribed in it, and to sum it up: you’re not allowed.
2. Queen Elizabeth Claims to Own (Almost) All of Canada & We’re All Just Borrowing It.
The Indian Act states, right on the first page (emphasis added in bold is mine):
“designated lands” means a tract of land or any interest therein the legal title to which remains vested in Her Majesty and in which the band for whose use and benefit it was set apart as a reserve
and this is followed by (emphasis added in bold is mine):
“surrendered lands” means a reserve or part of a reserve or any interest therein, the legal title to which remains vested in Her Majesty, that has been released or surrendered by the band for whose use and benefit it was set apart
I bet some people are going to ask “So why is this so important?” Well, it means that contrary to a common understanding of Canadian law, no one but Queen Elizabeth can actually legally own land in Canada. We’re all just borrowing it—all of us, aboriginal and non-aboriginal alike. You can own your house, but the land on which it’s built isn’t yours. The vast majority of this country was declared reserve lands upon the formation of the Crown treaties. The Indian Act didn’t take long to become enacted into law, and once that happened, aboriginal people began being forced out of their homes onto reserves, and then forced off reserves, all across the country. Once that happened, all those lands automatically became the legal property of the Queen.
There do exist, however, some independent land titles that trace back to the time of the treaty-signing, which meant that these specific plots of land had been legally purchased from the Queen. Many of these land titles were held by people of aboriginal status; however, it is important to note that the legal inheritance rights of aboriginal people has been most conspicuously and repeatedly manipulated through revisions to the Indian Act. Sometimes that might mean the absorption of those land titles by a band into what is counted as their reserve lands, and sometimes it meant that no one could legally inherit it from its rightful owner. Imagine owning your home and being told on your death bed that your kids aren’t allowed to live in it. Not a pleasant thought.
There are also different types of land claims that Canada has made with different aboriginal peoples—most notably, the legal formation of independent Inuit territories in the north, which were granted in exchange for many of the treaty rights the Inuit would have been entitled to under the Indian Act (which also would have come coupled with limited sovereignty under the Indian Act). It is important to note as well that there were never Crown treaties formed in the province of British Columbia (i.e., it is unceded territory). Instead, in certain regions throughout BC, there have been comprehensive land claim settlements, which is sort of a fancy way of saying the Canadian government “negotiated with” and paid certain bands to take their reserves away, in exchange for certain rights and/or responsibilities on the part of Canada toward those bands (that is, often long after many of those reserves had been expropriated by the Canadian government to begin with). So if land wasn’t complicated enough, the Canadian government has persistently complicated it further since writing the first draft of the Indian Act. Thanks for that, Canada.
3. It’s 77 Pages of Institutionalized Racism.
In addition to defining who is aboriginal (and by negation, who is not), who owns what land (or not, as the case generally is, with notable exceptions), and under which conditions land can be legally taken away from whomever is living on it at the time; the Indian Act sets out an utterly suffocating list of rules for the 633 bands of aboriginal people (2 million people total) currently living in Canada today. Historically, the Indian Act has been even more suffocating than it still is, and for its first several decades, it actually enacted cultural genocide into written Canadian law by outright criminalizing nearly everything about aboriginal cultures and forcing aboriginal children to attend residential schools. The Indian Act even dictated that interracial marriages between aboriginal and non-aboriginal people, the birth of a racially blended child to an aboriginal woman, or the adoption of a non-aboriginal child by an aboriginal person, all spelled out an automatic loss of treaty rights for the aboriginal party. Treaty rights have also been historically stripped from aboriginal people for reasons relating to their degree of Western education (i.e., if they became too educated, they were no longer considered aboriginal enough).
To this day, the Indian Act prescribes laws around marriages, the birth of children, and inheritance of property or estates for all aboriginal people in Canada, but it does so based on non-aboriginal standards (i.e., it ignores the prior existence of aboriginal law and thus undermines their right to self-governance). It also prescribes what aboriginal people can and cannot do with the land and resources on their own reserves or even with their own money, while essentially burying them in constant paperwork. The Indian Act also dictates mandatory compliance with non-aboriginal education structures for aboriginal children (i.e., it ignores the capacity of aboriginal people to determine how best to teach their own children). The Indian Act also dictates the structure of aboriginal governance, both to individual aboriginal nations and to all legally aboriginal people as a whole, based again on non-aboriginal standards (i.e., it ignores the structure of aboriginal laws and governments prior to contact).
4. You Can’t Just Put it Through the Shredder.
There are so many rights, responsibilities, and obligations entrenched into every single page of the Indian Act, which apply to both aboriginal people and non-aboriginal people (though unequally), that for all the problems it creates, it would actually create even more problems if it were suddenly abolished. It is especially important at this point to make note of the fact that as it currently stands and has been the case since the implementation of the Indian Act, the federal government of Canada is not even answerable to aboriginal nations; rather, it is only currently answerable to the Assembly of First Nations (i.e., 633 representatives for 2 million people who have no right to appeal to the federal government, unlike non-aboriginal people). This is not a nation-to-nation relationship—it’s a dictatorship, and one that is structured in such a way that it is actually in the best interests of many aboriginal nations to defend it.
This brings me to another extremely superficial dusting of a history lesson: PM Trudeau tried to abolish the Indian Act in 1969 through a piece of legislation that would have legally assimilated all aboriginal people to non-aboriginal status. This was not received well by aboriginal people, and with good reason. They became politically outraged and defiantly opposed this change of legislation. Jump directly from 1969 into late 2012, when PM Harper proposed a way to gradually abolish the Indian Act. Once again, this was not received well by aboriginal people, and with good reason. They once again became politically outraged and defiantly opposed this change of legislation.
So where did/does all the outrage and opposition come from? Because it isn’t the place of non-aboriginal government to change the structures of aboriginal government—just like it was never the place of non-aboriginal government to dictate what those structures should be in the first place. But since the federal government of Canada has done just that, it is up to aboriginal nations to assess the damage that has been done for several consecutive generations, and to determine the best course towards recovery of aboriginal government and reconciliation within and between nations. Abolishing the Indian Act in a single gesture, or changing it without consulting aboriginal nations, just isn’t the answer. We can’t talk ourselves out of this situation without making structural changes, and we can’t make structural changes without talking to each other.
Author note: I wrote this piece alone (a non-aboriginal person with no known aboriginal heritage in my family’s lineage and no fancy degree in law), and any inaccuracies contained herein are my own fault, but I will do my best to correct them. This piece is intentionally written to be as brief as possible, despite the complexity of the subject matter, to make it accessible to as many people as possible.
I used the word “disenfranchisement” wrong. That would be like a Canadian citizen suddenly being stripped of the right to vote. Bad, but not the same as enfranchisement of a legally aboriginal person — being stripped of their right to embrace their ancestral traditions and very identity.