The Indian Act is unquestionably one of the most viciously unjust pieces of legislation in Canadian history. Its aim was to assimilate the First Nations peoples into mainstream culture, rather than recognising the uniqueness and value of their own culture and granting them special dispensation as was agreed to in treaties. In practise it removed many of the fundamental rights granted to Canadian citizens on the basis of race alone, stood in the way of basic human freedoms, and stole thousands of children from their parents to be educated in residential schools in the European style, complete with physical and psychological abuse.

In short it was a bad idea that was even worse in its execution. Numerous amendments in the years following its creation in 1876 made it marginally less inhumane; nonetheless, this is a legislation that has few if any proponents left, and has violated more human rights than anyone cares to admit.

Origins

The outcome of the Seven Years' War marked the end of influence from France in the New World. In taking control of what had been New France among other areas in North America, the British Crown released a Royal Proclamation in 1763. One of its clauses involved setting aside the Ohio Valley west of the Appalachians as Indian hunting ground, off-limits to colonists; furthermore, colonists were forbidden to enter into land negotiations with the Indian inhabitants of the valley, and the government reserved the right to negotiate the termination of this land claim. The right to Indian self-government was also reserved.

Though the Royal Proclamation was one of the legislations leading up to the American Revolution, agitating the Thirteen Colonies to rebellion, more importantly when it comes to Canadian history it was the first example of the concept of First Nations land titles -- specifically the idea that land could only be acquired through bilateral agreement, or a treaty.

The treaty system successfully opened up the West for settlement without violence. However, it left a rather large minority group with special interests and needs, very much like the French-Canadian population in the province of Quebec. These Francophones had been effectively dealt with; perhaps the First Nations could be taken care of in a similar way.

Consider Lord Durham's principle of assimilation, as outlined in his Report on the Affairs of British North America made in 1840. One method of dealing with a newly-acquired territory, he said, was to accord respect to its original inhabitants, making concessions to preserve their culture. This naturally required a commitment of financial resources and the creation of government offices specifically for the purpose of dealing with the minority. This was what the treaties endeavoured to accomplish.

Durham's second proposal was far simpler. It called for

treating the conquered territory as one open to the conquerors, of encouraging their influx, of regarding the conquered race as entirely subordinate, and of endeavouring as speedily and as rapidly as possible to assimilate the character and institutions of its new subjects to those of the great body of the empire.¹

Though the creators of the Indian Act may not have been directly swayed by Durham's political thought, his influence can be seen in the ultimate goal of the Act: that is, getting rid of the question of a minority that needs looking after by incorporating it into the majority.

Not long after the War of 1812, the British Crown questioned the need for the existence of an Indian Department in British North America. In 1828 an inquiry was held to look into the "Indian question" as a whole; the Darling Commission recommended after some thought that the First Nations be settled into a central area, converted to Christianity by missionaries, educated as British subjects, and taught agricultural methods. Most of the legislations that followed the inquiry were made in accordance with its policies.

In 1857, British Parliament passed the Act for the Gradual Civilisation of the Indian Tribes in the Canadas. Essentially it sought to encourage the First Nations to assimilate themselves; by giving up their land, language, and cultural rights, they would in exchange be given the right to vote, own property, and serve on juries as full British citizens. Another similar Act was passed in 1859: the Civilisation and Enfranchisement Act. Neither of these came to any great end; the next Act that was passed would prove to have profound and extremely long-lasting effects.

The Indian Act, 1876

Passed by Canadian Parliament as federal law, the Indian Act immediately brought into effect the following:

As relates to status:

• The government is to decide who is and isn't an Indian. "Status" Indians are granted rights that non-Status Indians are denied.
• Any First Nations woman who marries a non-First Nations man will lose her status. A First Nations man who marries a non-First Nations woman will keep his status; his wife will in turn gain status.
• Life on the reserve is to be governed by an appointed Indian Agent, of non-Aboriginal descent. The Indian Agent will be in control of regulating activities on the reserve, including finances and movement of residents, and is responsible for enforcing the Indian Act.
• First Nations people who graduate from university will lose their status.
• First Nations people who wish to vote in a federal election must relinquish their status permanently in order to do so.

As relates to the powers of the Indian Agent:

• Permission must be granted by the Indian Agent for an Aboriginal person to leave the reserve for any reason.
• Permission must also be granted by the Indian Agent to sell any crops grown on the reserve.
• Finances for each band are to be managed by the local Indian Agent.

As relates to elections:

• The chief and councillors, who create and pass laws on the reserve, are elected by band members.
• First Nations people may vote in neither federal nor provincial elections.

As relates to education:

• At the age of six, First Nations children are sent to residential schools, where they are not permitted to speak their native language and are educated in the ways of non-Aboriginal culture.

Effects of the Act

The treaty system that preceded the Act had created a relationship wherein the federal government and the Indian Nations were viewed as equal partners, with land titles ceded in exchange for special privileges. The Indian Act saw this relationship deteriorate, as the government used its clout to govern the Indian Nations without regard for their concerns.

The Act formally declared the federal government's responsibility for the First Nations. Lands set aside in the treaties evolved into a system of reserves; these turned into theatres for the process of "civilisation", as traditional forms of government were suppressed, replaced by democratically-elected band leaders who often became corrupt.

This system of democracy had no cultural relevance to the First Nations; however, the federal government ignored their protests, asserting that the system of a democratically-elected Indian Act Band Council system was superior to traditional government and was also necessary to the process of assimilation. Language rights were often stripped entirely as the Act assumed absolute jurisdiction over culture and education.

The authority of the First Nations people to determine their own way of life now rested in the hands of the Department of Indian Affairs, embodied on each reserve by the Indian Agent. The government's determination to classify who exactly was an "Indian" created disparity where there wasn't any before, as non-Status Indians were forced to leave the reserves, often living off-reserve in poverty.

Under an expropriation clause in the Act -- land was not taken away; it was "Crown land set aside for the use of a band of Indians" -- the federal government was able to take from the First Nations whatever land they saw fit to use. A vast area was expropriated for the construction of the St. Lawrence Seaway; this created severe barriers to economic expansion for the First Nations, as their strategically-located and fertile lands were taken without warning or compensation.

In 1920, essayist and poet Duncan Smith made a comment that neatly summarised the federal government's attitude toward First Nations policy:

Our object 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.²

Major amendments

The first amendment to the Indian Act was made in 1884, as a means to speed up the assimilation process. Traditional ceremonies, dances, and festivals were now outlawed, with violators to be imprisoned. This included the Sun Dance, a mainstay of Plains Indians, and the potlatch, a major political, social, and economic institution of the First Nations in the Pacific Northwest and into the interior of British Columbia. This was not repealed until 1951.

It was amended again in 1927; following this amendment it was illegal for anyone to receive payment from a status Indian to prosecute a legal claim, without express permission from the superintendent General of Indian Affairs.

Status Indians were not given permission to vote in elections until 1961. A prohibition clause, making it illegal for them to purchase or be in the possession of alcohol, was repealed in 1970.

The White Paper on Indian Affairs

Under Prime Minister Trudeau in 1969 was written a radical bill which proposed to repeal the Indian Act altogether, giving the First Nations the same rights as other Canadians whilst at the same time dispensing with their special privileges, such as tax exemptions and reserve land. Opposition to it was almost unanimous, and the Paper was hastily withdrawn in 1971.

Bill C-95

Another amendment was made in 1985: Bill C-95 changed the Act such that Status Indian women who married non-Status men would not lose their status, as had been set out in 1876. Its aim was to end legislative discrimination against women; it succeeded in this, but it also created some new problems.

The populations of the reserves increased dramatically as thousands of women, after reclaiming their lost status, moved back to where they had grown up. This put pressure on budgets for housing, education, and health care, and called into question what power if any was held over membership by the band leaders.

This lack of control is entrenched in the Act, as only the federal government can decide who can live on reserves. One of the ideas in the White Paper that was quietly adopted was the transfer of some powers from the federal Department of Indian Affairs to local Band Chiefs and Band Councils. The control of the Indian Agent was undermined, and suddenly corruption in band leaders became a far more serious problem. The new issues created by the shift in power have never been addressed.

The Royal Commission and Governance Act

Some years after the White Paper fiasco, an inquiry was called; this eventuated in the Royal Commission on Aboriginal People's observations that the Indian Act was outdated, unjust, and needed replacement, which point the First Nations had been trying to make for decades.

A recently-proposed piece of legislation that would change the Indian Act again is the Governance Act. Under it the First Nations bands would be given full control of their reserve lands; this would give them the right to mortgage, lease, or sell it, as it would no longer belong to the Crown. The Governance Act would also impose stricter guidelines on band finances, to limit corruption.

As with the White Paper, the Governance Act has a great deal of vocal opposition. The Grand Chief of the Assembly of First Nations, Matthew Coon Come, has disdainfully labelled the proposed Act and all it entails "twenty-first century colonialism"; he and other radical First Nations leaders are calling for the Indian Act to be repealed without replacement. To institute a new set of laws that would control their lives would be to exchange a devil they know for a devil they don't, and is therefore viewed as a bad idea.

After nearly a hundred and thirty years of struggle against the Indian Act the situation is still far from resolved. The Act was responsible for entire generations of First Nations people with no sense of place or of self, loss of culture and language, and a lengthy record of human rights violations that isn't going to disappear in a nation that takes pride in its diplomacy and peacekeeping. Its consequences are still being felt nationwide in communities both on and off reserves.

¹ Lord Durham's Report, ed. Gerald M. Craig (Toronto: McClelland and Stewart, 1963), p.47.
² Henderson's Annotated Indian Act: http://www.bloorstreet.com/200block/sindact.htm.

Sources:
http://www.ualberta.ca/~esimpson/claims/indianact.htm
http://laws.justice.gc.ca/en/I-5/
http://www.bloorstreet.com/200block/sindact.htm
http://www.sask.cbc.ca/archives/governance/
http://www.swc-cfc.gc.ca/pubs/066231140X/200111_066231140X_1_e.html
http://www.socialpolicy.ca/cush/m8/m8-t7.stm#top
http://www.kahnawake.com/ckr/indian_act.htm
http://www.bloorstreet.com/200block/rp1763.htm
Craig, Gerald M., ed. Lord Durham's Report. Toronto: McClelland and Stewart, 1963.
Price, Richard T. Legacy: Indian Treaty Relationships. Plains Publishing Inc., 1991.