Keith Mack
The Indian Act is a federal law in Canada that came into force in 1876. It replaced previous laws and policies regarding Indigenous peoples in Canada, including the Royal Proclamation of 1763 and the Gradual Civilization Act. The Indian Act outlines the rights and restrictions of Indigenous peoples in Canada, including their governing powers, eligibility for benefits, and the ability to hire lawyers or make land claims. It has been amended several times since its inception, including in 1951 to allow religious ceremonies and in 1985 to address gender discrimination. The Indian Act has been the subject of criticism and legal challenges, with some arguing that it violates human rights and international law.
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What You'll Learn
The Indian Act is a federal law in Canada
The Indian Act was created to establish the Canadian government's relationship with Indigenous peoples, including First Nations, Métis, and Inuit individuals and communities. It sets out the rights and restrictions of these groups and has been a source of much controversy and resistance since its inception.
One of the most well-known aspects of the Indian Act is the establishment of the reserve system, which segregates Indigenous peoples from the rest of the Canadian population. The Act also sets out the rules for band councils, which are the governing bodies of Indigenous communities. The Act has been criticized for severely restricting the powers of these councils and for imposing unfair regulations on community members, such as those related to alcohol consumption.
The Indian Act has also been a source of gender-based discrimination. For example, Section 12 of the Act removed a woman's Indian status if she married a non-Indian man. This was deemed a violation of the International Covenant on Civil and Political Rights by the United Nations Human Rights Committee and the Canadian Human Rights Commission in the 1980s.
Despite amendments to the Act over the years, it continues to be a source of controversy and resistance for Indigenous peoples in Canada, who view it as a violation of their rights and an impediment to self-governance.
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It was amended in 1985 to address gender discrimination
The Indian Act is a federal law of Canada. It is a piece of legislation that governs the rights and benefits of Indigenous people in Canada. The Act has a long history of amendments, one of which occurred in 1985 to address gender discrimination.
The push for this amendment came from several sources. Firstly, in 1981, the United Nations Human Rights Committee found Canada in breach of the International Covenant on Civil and Political Rights due to the discriminatory nature of the Indian Act. This was followed by the inclusion of the Canadian Charter of Rights and Freedoms in the Canadian constitution in 1982. Section 15 of this Charter explicitly states that:
> "every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability."
The Lovelace case, which was ruled in favour of by the United Nations Human Rights Committee in 1984, also provided legal impetus for the removal of gender-based discrimination in the Indian Act. In this case, it was ruled that the removal of an Indian woman's status upon marrying a non-Indian man was a violation of her rights.
As a result of these developments, Bill C-31 was passed in April 1985 to amend the Indian Act. The bill aimed to bring the Indian Act into line with the gender equality guaranteed by the Canadian Charter of Rights and Freedoms. It proposed modifications to various sections of the Indian Act, including significant changes to Indian status. Specifically, it removed all sex-based distinctions affecting the entitlement to register for status, addressing gender discrimination in the Act.
However, it is important to note that while Bill C-31 did remove gender-based distinctions in the Indian Act, it did not eliminate all forms of gender discrimination. For example, the ""double mother" clause, which was introduced in the 1951 amendments to the Act, stated that an Indian child would lose their status if both their mother and grandmother had acquired Indian status through marriage, regardless of the father's status. This clause persisted even after the 1985 amendments. It was not until August 2019, with the full coming into force of Bill S-3, that the remaining known sex-based inequities under the Indian Act were addressed.
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The Act has been deemed a human rights violation
The Indian Act, passed in 1875 by the Liberal government in Canada, is a federal law that was introduced as a consolidation of various laws concerning Indigenous peoples. The Act has been deemed a human rights violation by many, including Amnesty International, the United Nations, and the Canadian Human Rights Commission.
One of the most well-known examples of the Indian Act's oppressive nature is the Potlatch Law, which banned the potlatch ceremony, one of the most important ceremonies for coastal First Nations in the west. The Act also severely restricted the governing powers of band councils, regulated alcohol consumption, and gave the Superintendent the power to determine who was of "good moral character", thus controlling access to certain benefits.
Additionally, the Indian Act has been criticized for its gender-based discrimination. Section 12 of the Act removed a woman's Indian status if she married a non-Indian man, directly violating the International Covenant on Civil and Political Rights, which protects a minority's right to belong to their cultural group. This led to Aboriginal women organizing and taking legal action in the 1970s, with Jeanette Corbière Lavalle and Yvonne Bedard challenging Section 12 at the Supreme Court of Canada, and Sandra Lovelace taking her case to the United Nations Human Rights Committee in 1981.
In response to these criticisms and legal challenges, the Canadian government has made some amendments to the Indian Act. In 1985, Bill C-31 was passed to allow those who had lost their status, often due to gender-based discrimination, to regain it. However, this bill has also been criticized as unconstitutional, as the reinstated status can only be passed on for one generation. In 2008, the House of Commons unanimously passed Bill C-21 to repeal Section 67 of the Canadian Human Rights Act, which had previously prohibited First Nations people from filing official complaints about the Indian Act as a human rights violation. The government is currently in the process of further amending the Indian Act to address ongoing concerns about human rights abuses and discrimination.
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It replaced previous laws and treaties regarding Indigenous peoples
The Indian Act was passed in 1876 and replaced previous laws and treaties regarding Indigenous peoples in Canada. The Act was introduced to consolidate prior legislation, including the Gradual Civilization Act and the Gradual Enfranchisement Act, which aimed to remove the special rights of First Nations peoples and assimilate them into the larger settler population.
Prior to the Indian Act, several laws were enacted to protect Indigenous peoples and their lands. The Royal Proclamation of 1763, for instance, made it illegal for British subjects to buy land directly from Indian nations, reserving this right solely for the Crown. This led to early treaties, such as the "Peace and Friendship Treaties" with the Mi'kmaq and the Upper Canada treaties. During the negotiations around Canadian Confederation, the framers of Canada's constitution wanted the federal government to assume Britain's former role in treaty-making and land acquisition. Thus, the Constitution Act, 1867, specifically assigned responsibility for "Indians and lands reserved for Indians" to the federal government under Section 91(24).
In the years leading up to the Indian Act, several other laws were enacted with the purported aim of protecting Indigenous peoples. In 1839, the "Act for the Protection of the Indians in Upper Canada" was passed, followed by similar acts in 1850 for both Upper and Lower Canada. These acts sought to protect Indigenous peoples from imposition and safeguard their property from trespass and injury. However, they also contributed to the gradual erosion of Indigenous rights and autonomy.
The Indian Act of 1876 marked a significant shift in the legal status of Indigenous peoples in Canada. It introduced the concept of "status," which defined who was legally considered an Indian and carried certain benefits. The Act severely restricted the governing powers of band councils, regulated alcohol consumption, and determined eligibility for band and treaty benefits. It also marked the beginning of gender-based restrictions on status, with women losing their status if they married non-Indian men, a practice deemed a human rights violation by the United Nations Human Rights Committee.
The Indian Act has been amended numerous times since its inception, often in response to resistance and advocacy from Indigenous communities. In 1951, it was amended to allow religious ceremonies, including the "give-away dance," and in 1985, Bill C-31 was passed to allow some women and their children to regain or attain status. Despite these changes, the Indian Act continues to be a source of controversy and has been described as a violation of human rights by Indigenous rights advocates and international bodies.
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The Act includes requirements for someone to be considered a legal Indian
The Indian Act is a law in Canada that came into force in 1884. It is one of the most well-known examples of the oppression of Indigenous people in Canada. The Act includes requirements for someone to be considered a legal Indian.
Firstly, the Act gave the Superintendent the power to determine who was of "good moral character" and therefore deserving of certain benefits. This included decisions about whether a widow could keep her children if her husband died. Secondly, the Act imposed gender-based restrictions on status, such as removing a woman's Indian status if she married a non-Indian man. This was deemed a human rights violation by the United Nations Human Rights Committee and the Canadian Human Rights Commission in the 1980s. In response, the Canadian government amended the Indian Act in 1985 with Bill C-31, which allowed those who had lost their status to regain it. However, Bill C-31 has been criticised as it only allows those individuals to pass on their status to their children, not their grandchildren.
In addition to these requirements, the Indian Act also severely restricted the governing powers of band councils, regulated alcohol consumption, and determined eligibility for band and treaty benefits. It also banned important Indigenous ceremonies such as the potlatch and the sun dance.
In terms of Indian nationality law, there are several routes to becoming an Indian citizen, as outlined in the Citizenship Act of 1955. These include citizenship by birth, descent, registration, naturalisation, and overseas citizenship for the Indian diaspora. Requirements for citizenship by birth have changed over time, but currently, at least one parent must be an Indian citizen for the child to qualify. Abandoned children found in India with unknown parents are also presumed to be Indian citizens. Citizenship by descent applies to those born outside of India with an Indian father (between 26 January 1950 and 10 December 1992) or at least one Indian parent (after 10 December 1992). Citizenship by registration is available to persons of Indian origin who have resided in India for at least seven years and met specific conditions. For citizenship by naturalisation, foreign nationals must reside in India for at least 12 months immediately before the application and for an aggregate of 11 years in the preceding 14 years. They must also be of good character, have adequate knowledge of an Indian language, and intend to reside in or serve the Indian government. Overseas Citizens of India (OCI) cardholders can apply for citizenship after five years from the date of OCI registration and at least one year of residence in India immediately before applying.
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Frequently asked questions
The Indian Act is a federal law in Canada that came into force in 1876. It defines who is recognised as an "Indian" and regulates the rights and benefits of Indigenous peoples in Canada.
The Indian Act has been amended several times since its enactment. Some key provisions have included:
- Restricting the governing powers of band councils
- Regulating alcohol consumption
- Determining eligibility for band and treaty benefits
- Prohibiting certain traditional ceremonies and dances, such as the potlatch and sun dance
- Enabling the forced enfranchisement of Indigenous peoples, resulting in the loss of their Indian Status
Yes, the Indian Act has been challenged by Indigenous rights advocates who argue that it violates international law and human rights. In 1981, Sandra Lovelace took her case to the United Nations Human Rights Committee, contending that the Act should not result in the loss of her status due to her marriage. The UN ruled in her favour, stating that Canada breached the International Covenant on Civil and Political Rights.
Yes, there have been efforts to amend the Indian Act to address concerns. In 1985, Bill C-31 was passed to allow some women and their children to regain or attain status. However, this Bill has been criticised as unconstitutional because the status can only be passed on for one generation. In 2008, Section 67 of the Canadian Human Rights Act, which prevented First Nations people from filing complaints about the Indian Act, was also repealed.
