Indian Act

In 1960, John Diefenbaker passed legislation (Bill C-2 and Bill-C3) that amended the Indian Act that guaranteed federal franchise to status Indian men and women in a way that did not compromise their Treaty Rights or status. Bill C-2 repealed subsection (2) Section 86 of the Indian Act which prevented those with Indian status from voting. Bill C-3 amended the Canada Elections Act, assuring federal franchise without compromising one’s Indian status to both men and women. The response to federal enfranchisement was mixed, individuals fearing that despite the Government’s promises they would lose their Treaty Rights and status if they voted at the polls. Historically, promises and assurances made by the Federal Government to Indigenous peoples were often disregarded or disingenuous altogether, this caused a lack of trust in the Federal Government’s intentions regarding enfranchisement.

Although movement towards implementation of a permit system began in the House of Commons in the 1870s with amendments to the Indian Act, it was not fully implemented until 1885. This policy prohibited Indigenous people from selling anything they had "owned, grew, raised, cut, dug, caught, were given, found, or otherwise acquired" (Smith 2009, 99 - see relevant resources below).

With the emergence of settler society, many of the social norms of Indigenous groups became seen as morally corrupt, or deviant. The idea of polygamous marriages was foreign to European settlers, was a stark contrast to the Christian marital norms and common law monogamy. Government actors took it upon themselves to discourage the practice of polygamy and eventually entrenched it in law by 1890. It was important for settlers to reinforce the idea of traditional, European, monogamous marriage because they feared it was being disintegrated by the industrial revolution and was a marker for 'de-civilization.' The arrival of the Mormons in the late 1800s further escalated fears held by the state, triggering them to take action against the practice of polygamous marriages.

Bill C-3, also known as the Gender Equity in Indian Registration Act, developed as a response to the McIvor v. Canada decision in British Columbia which found that some of the current registration provisions of the Indian Act were in violation of section 15 of the Charter of Rights and Freedoms based on gender. The purpose of Bill C-3 was to expand registration to the grandchildren of women who had lost their status as a result of marriage to a non-Indian. To be eligible for status under Bill C-3, three criteria need to be met: ------------------------- "1. The individual’s grandmother had lost status due to marriage to a non-Indian 2. The individual has a parent who is registered, or entitled to be registered as an Indian under section 6 (2) 3. The individual was born on or after September 4, 1951 Should all of these criteria be met, an individual would be eligible for status under this new bill. Bill C-3 aimed to correct the gender discrimination from the 1985 amendments, commonly known as Bill C-31."

Bill C-31, otherwise known as An Act to Amend the Indian Act, resulted because of persistent activism on the part of Indigenous women who recognized and opposed the inherent gender bias within the Indian Act. This amendment reinstated status to Indigenous women, and their children, who had previously had their status revoked by the pre-1985 Indian Act due to marriage to a non-Indian. Losing status meant much more than no longer being viewed as an ‘Indian’, it resulted in a loss of access to rights, programs, and on reserve housing, ultimately isolating Indigenous women from their friends and family. This bill also shifted more responsibility on to band councils and away from the federal government in regards to band membership by allowing bands to create their own membership codes and make decisions on whether or not to allow reinstated women and their children into their bands. Bill C-31 created a more complicated formula when determining Indian status by creating what is known as the ‘second generation cut-off rule’. This rule states that status is revoked from individuals who have fewer than two grandparents with Indian status. This rule applies only to Indigenous women who married non-Indians prior to April 17, 1985 and their subsequent children. The new formula for status was also discriminatory towards the children of Indigenous women who had married non-Indians because they were placed in a category that essentially labelled them as ‘less Indian’. This lesser level of status is gender discriminatory because it applies only to the grandchildren of Indigenous women who married non-Indians, and not to Indigenous men who married non-Indians. Although Bill C-31 was created as a means to eliminate gender discrimination within the Indian Act, it resulted in the creation of residual gender bias towards Indigenous women and their children.

The North-West Mounted Police was established in 1873 by the government of John A. MacDonald. The Cypress Hills massacre as well as the increasing number of conflicts on the U.S border due to alcohol smuggling are often cited as the main reasons the MacDonald government passed the bill creating the new military-style police force. However, most historians agree that the primary reason for establishing the force was to control First Nations and Métis populations, as the government sought to populate the West with settlers. Under the central authority of Ottawa, the NWMP marched West in 1874. The NWMP served as an arm of colonial control for politicians and lawmakers in Ottawa. For Indigenous communities in the Northwest, it represented an additional source of repression. The newly formed para-military style force was entrusted with wide-ranging powers and duties. Officers acted as Justices of the Peace, able to apprehend and sentence offenders, as well as impose Indian Act polices such as the Pass System. Since western courthouses did not exist at the time on the Prairies, NWMP barracks were often used for court proceedings and as temporary prisons. The NWMP assisted Indian Agents with the ration system, as well as enforcing laws obliging Indigenous students to attend residential schools. Government policies such as the Residential School system, the Sixties Scoop and gender discrimination in the Indian Act subjected Indigenous families to violence, cultural dislocation and land dispossession. The NWMP was successful in instituting a system of surveillance and curtailment, restricting Indigenous people to their reserves, regulating their land use and criminalizing livestock theft to benefit settler farmers and ranchers.

The Indian Agent ensured that Indian Act aimed at assimilation was implemented on Canadian reserves. Their far-reaching influence on the day-to-day lived experience of Indigenous peoples included, but was not limited to, determining who belonged to the band (especially for children born out of wedlock), whether or not a status Indian could leave the reserve (this applied mainly to those in Prairie provinces), whether or not they could sell or slaughter a pig or cow that they owned, whether or not they could sell crops, cut wood, or spend their money (which was usually held "in trust" by the Agent), and enforced Residential School attendance and could forcibly remove children from their families. In essence, an Indian Agent acted as a warden for reserve communities and could enforce dubious laws (such as the Pass System), and control the movements of First Nations peoples. They also determined whether or not a “status-Indian” could be a chief or band councillor, and whether or not a proposal put forward by a band council (consisting of the chief and counsellors) could be enacted, thus stripping political capacity and self-governance from the band. As such, the Indian Agent held the power of veto over band proposals (Steckley 2016, 3-4).

An example of the control that an Indian Agent had over reserve life can be found in an oral history interview with Joe Kapoeze, a resident of Red Pheasant. In the interview, Joe explains issues he and his father had with the Indian Agent (referred to in the interview as Mr. Millar) on the reserve. The issue began when Joe's father wanted to slaughter a cow, as he was going to start cutting hay. In response, Mr. Millar stated that "that if somebody killed a cow, he would be put in jail.” Issues continued when Mr. Millar would not allow access to the thresher. In response, Joe and his father paid a farmer off of reserve to thresh wheat for them. When Mr. Millar found out about this, he told Joe and his father to "to haul the wheat to his granary." In response, Joe's father stated that he would not do so, and that he intended to sell that wheat. In response, Mr. Millar explained that "if they didn’t have any paper, they would get picked up. He told us we have to get a permit if we want to sell anything." As can be seen, Indian Agents had a disproportionate and monopolistic amount of control on reserve life.

Building on amendments made to the Indian Act in 1881 which enabled magistrates to have jurisdictional authority on reserves, this 1882 amendment granted the Indian Agent the same power as magistrates, despite lacking formal legal training.

Beginning in the 1880s, the Department of Indian Affairs implemented bureaucracy relating to the execution of justice on reserves. These administrative forms of non-Aboriginal justice served less as a protector of individuals and communities than an enforcer of an inappropriate and unhelpful system of law that facilitated the government’s agenda. Indigenous peoples were the most knowledgeable about their own cultural paradigms and the systems of justice that best served their philosophical perspectives. The stripping of power as it relates to self-governed frameworks of law, however, resulted in the continued inability of bands to provide for the safety and security of their own members. A forced reliance on non-Indigenous administered courts also resulted in the absence of authority for bands to correct problematic jurisdictional gaps, confusion over procedures and policies, and power vacuums whereby outside police forces refused to enforce by-laws.-------------------- In other cases, the exercise of local power through forces of non-Aboriginal justice extended from outside of the reserve to increase control. For example, in 1881, the jurisdiction of magistrates was broadened to reserves, and members of the Indian Affairs Department the Indian Agents were made ex officio justices of the peace. In 1882, the Indian Agent was given the same power as magistrates, despite lacking formal legal training. In 1884, another Indian Act amendment permitted Indian Agents, acting as justices of the peace, to conduct trials whenever they thought necessary, to “any other matter affecting Indians.” Within the same amendment, Indian Agents were granted judicial authority which enabled them to not only lodge a complaint with the police, but to direct the process of prosecution and then act as the sitting judge as well. Aboriginal peoples were thoroughly excluded and alienated throughout the judicial process, except by virtue of their position as the accused.-------------------- Also in 1884, in anticipation of an Indian and Metis uprising due to growing minority agitation, the Act was amended to prohibit inciting “three or more Indians, non-treaty Indians, or halfbreeds” to breach the peace or to make “riotous” or “threatening demands” on a civil servant. This amendment also prohibited the sale to any Indian in the west of “fixed ammunition or ball cartridge,” thus preventing stockpiling of ammunition. These actions effectively criminalized Indian and Metis political protest. Additionally, it prevented Indians from receiving the ammunition needed for hunting at a time when they were already suffering from government policy which restricted rations following the endangerment of buffalo herds. Not surprisingly, these measures did not quell the growing discontentment of Metis and Cree people, who were increasingly frustrated with government policy.

As a means of consolidating existing legislation regarding Indigenous peoples, this new federal legislation marked the beginning of creating special offenses that only applied to Indians. From the Crown’s perspective, it unilaterally marked a transition of Indigenous peoples in British North America from that of sovereign tribal nation in the tripartite imperial system to that of legally incompetent wards of the state in the federal and provincial system. Whereas previously the Crown had an expressed goal of protecting Indian tribal autonomy, the Indian was now cast as a dependent child. There would be no further protection of the cultural distinctiveness of Indigenous people, but rather, an expressed goal of civilization, as defined by the Crown, and assimilation.

In its drafting of the Indian Act, the Crown chose not to make reference to the treaties made with Indigenous peoples that were already in existence. This was in keeping with the Crown’s emphasis on a policy of assimilation, as well as undermining the previous nation-to-nation legal relationship and shifting towards one which perceived Indigenous people as subordinates. The version of the Indian Act that was passed in 1876 communicated the paternalistic mindset of the Crown by dictating the operations of almost every aspect of the daily lives on Indigenous people on reserves, including procedures for determining Indigenous identity, land surrender, and land use

The Indian Act also attacked traditional forms of band governance in an attempt to implement democratic forms of government. Extensive steps were taken to supposedly educate Indians in matters of self-governance, despite the presence of functional structures of intra and inter-tribal governance prior to European contact. For example, the superintendent general acquired vast powers to direct all aspects of the electoral process. By controlling this process in its entirety including initiation and the selection of candidates, this interference was akin to appointment of band leadership by the Department of Indian Affairs. The government also included clauses that enabled the unilateral deposition of leadership. Section 75 of the Indian Act read that chiefs “shall continue to hold the rank of chief until death or resignation, or until their removal, by the Governor in Council, for dishonesty, intemperance, immorality or incompetency..." These grounds for deposition were vaguely defined to enable the government to manufacture legally unassailable arguments to remove band officials in the case that said leaders engaged in behavior that ran contrary to federal objectives, resisted the agenda of the Department of Indian Affairs or otherwise proved to be problematic to their goal of assimilation. The local Indian Agents also held vast powers in regards to interference in band governance and council meetings, and ensured that all aspects of band affairs were under the surveillance and control of the Department.

In addition to imposing democratic governance, the government attempted to undermine community ties by outlawing communal practices such as Potlatches and dances. This coordinated with the government’s desire to foster individualism, which was further encouraged by surveying reserves and dividing them into individual farm plots, isolating families. This demonstrates the devastating effect that the Indian Act held on women. Isolating families sabotaged the means that would have provided communal accountability for violent or otherwise abusive husbands. The Act also oppressed Indigenous women by taking away the Indian status of those who married non-Indigenous persons, thus alienating them from their land base and preventing them from inheriting family property, receiving treaty benefits and being buried with their ancestors on the reserve. Despite a history of inclusion in affairs of self-governance, particularly amongst matriarchal tribes, Indigenous women were now also excluded from taking part in band land surrender decisions. The exclusion of women would not change until 1951.