Indian Act Primer

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Duncan Campell Scott

It's been called discriminatory, paternalistic and woefully out of date. And it's about the only time you can use the word "Indian" these days without being a bigot.

The 136-year-old Indian Act is possibly the weirdest piece of federal legislation still on the books, an act that, in most of its historical permutations, really did set out to destroy aboriginal culture. It did that through the residential schools system, by outlawing traditional ceremonies and the wearing of traditional clothes in public and by barring bands from hiring lawyers to settle land disputes. Until 1960, registered Indians couldn't vote in federal elections.

Even today, the act contains fairly ridiculous constraints on bands, most of which aren't normally enforced. For example, the minister must approve any band member's will, and crops or cattle raised on reserve can't be sold off reserve.

Band members need Ottawa's permission to start a business and band councils need Ottawa's OK to develop land on the reserve or even pass bylaws. No town, let alone a group seeking self-government, would submit to that level of control.

The Indian Act does provide some structure to a remarkably complex relationship, and it does much to protect each reserve's communal land base.

And, it's fair to say the Indian Act hasn't held back many bands, including Opaskwayak Cree Nation near The Pas, which is a powerhouse.

But because reserve land is still held by the Crown, it can't be used as collateral in borrowing. And any time a band wants to get moving on a money-making venture, things get tied up and delayed by federal red tape.

"The Indian Act structure is totally inadequate, totally out of date," says former prime minister Paul Martin.

But he wouldn't scrap it entirely. A replacement needs to be found first, one that creates a real partnership and enshrines the duty to consult.

Assembly of First Nations National Chief Shawn Atleo has made getting rid of the Indian Act a key priority. At the recent Crown-First Nations Gathering in Ottawa, Atleo called the Indian Act "a painful obstacle to re-establishing any form of meaningful partnership."

"Built on the disgraceful premise of our inferiority, aimed at assimilation and the destruction of our cultures -- it was a complete abrogation of the partnership between respectful nations," he said.

Prime Minister Stephen Harper won't commit to eliminating the act. His practical, baby-step approach is to slowly override the clauses of the act with new legislation that addresses housing, property ownership and education.

He acknowledges the Indian Act is to blame for the current situation on First Nations, that "the incentives buried in the Indian Act self-evidently lead to outcomes that we all deplore."

But he said to blow up the act would leave a big hole, and incremental change is better.

Many chiefs did not entirely disagree with him that the act can't simply be erased without sections being replaced. The Indian Act governs everything from how bands elect their chiefs and councils, to the powers of those chiefs and councils, to determining who does and doesn't qualify for treaty status.

There have been at least 21 amendments to the Indian Act over the years. The most recent came in 2011 when legislation passed ensuring grandchildren of First Nations women who married non-First Nations men were finally recognized as status Indians under the act. Before that, grandchildren of First Nations men who married non-First Nations women retained their status, grandchildren of First Nations women who married non-First Nations men did not.

-- Mary Agnes Welch and Mia Rabson

'Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question and no Indian Department.'

-- Duncan Campbell Scott, 1920

Republished from the Winnipeg Free Press print edition February 4, 2012 J3