Indian ActAnd

Bill C-31

Introduction of Indian Act• A law designed to integrate Natives in Canada into

the mainstream economy and culture. • Introduced in 1876, the act allowed the Canadian

government almost complete control over how Natives lived and interacted with non-natives.

• It gave the government special responsibility for the health, education, and lands of much of the Native population.

• The Canadian Parliament overhauled the act in 1951 and continued to amend it significantly throughout the remainder of the 20th century.

• The Constitution Act that established Canada as a confederation in 1867 gave the new federal government responsibility for and control over most of the aboriginal people and their land reserves.

• Prior to and immediately after confederation, provincial and federal officials passed many laws restricting interactions between aboriginal people and the increasing number of whites settling near them.

• By 1876 there were so many aboriginal-related laws that Parliament consolidated them in the Indian Act.

• In this way, Parliament hoped to ensure order in relations between whites and aboriginal peoples.

• The new act defined who was an “Indian,” using a person's lifestyle and heritage as the primary criteria.

• The government had complete discretion over who was designated an Indian. To be given Indian status, one generally had to be a member of an aboriginal band that was granted a reserve or government funds or had negotiated a treaty with the government.

• The act only applies to Status Indians. Aboriginal groups not recognized as Indian in the act include non-Status Indians, the Inuit, and the Metis as well as people of mixed European and aboriginal heritage.

The act set forth what rights and protections Status Natives had.

• Under the act, Natives could continue to hunt and fish for a living, and they were eligible for government-funded education and health care.

• The government was obligated to protect reserve land from white settlers who wanted to take it, and non-Indian people were prohibited from trespassing on reserves.

• But the act deprived Natives of the right to govern themselves and denied them citizenship, barring them from voting in federal or provincial elections.

• The act also restricted their ability to conduct commerce and to own land.

• Natives were prohibited from consuming alcohol or leaving their reserves without governmental permission.

• Most of the power on any reserve was held by the federal agent for the Department of Indian Affairs (now the Dept. of Indian Affairs and Northern Development)

• Although the act differentiated Natives from whites, its main goal was to assimilate the Native population into white Canadian culture.

• The act provided guidelines for Indian behavior. When a Native met white standards by adopting the values and beliefs of the European Canadian population, he or she could be enfranchised (given Canadian citizenship).

• The requirements for enfranchisement changed over time, from knowing how to read to being a farmer or attaining professional status, for example as a lawyer or doctor.

• However, enfranchisement meant loss of Indian status. In some cases the act allowed the government to enfranchise Natives whether they wanted to be citizens or not.

• The act also forced Natives to abandon their own cultures by forbidding traditional ceremonies such as the potlatch and the Sun Dance.

• After World War II (1939-1945) Canadians developed a new awareness about Natives. They noticed, for example, that Native men had served admirably in the Canadian army during World War II. They also considered a federal report that showed that most of Canada's aboriginal peoples were living in poverty. Canadians became more concerned about the ways the government violated the rights of Aboriginals.

• In response, Parliament decided to remove objectionable and outdated provisions from the Indian Act.

• After four years of review by a special parliamentary committee, with advice from Native leaders, Parliament reworked the act in 1951.

• The government continued to amend the Indian Act after it was reworked in 1951.

• By 1962 Natives had the right to vote in federal and provincial elections.

• In 1985 the law was changed so that Natives could no longer be forced to give up their Indian status, and Native women who married non-Native men no longer automatically lost their Indian status.

• In the 1980s and 1990s amendments gave bands more self-government, including some control over deciding who was entitled to band membership and could live on their reserves.

• Despite these changes, the act remained similar to the original act.

Effects and Reactions• One of the most pervasive pieces of legislation

in Canadian society, the Indian Act regulates almost every aspect of Indians' lives. At the same time, it has failed many times to protect Native land, allowing non-Indians to take reserve property or purchase it through the government at a fraction of its worth.

• The act has stifled Native economic development by putting commerce on all reserves under the control of an unresponsive centralized bureaucracy.

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• Finally, the measure intended to protect the Natives by barring non-Indians from trespassing on reserve land isolates Native peoples from mainstream society.

• Aboriginals view the act as a tool the federal government uses to control their actions. Although many provisions that violated Natives' civil rights have been removed, the act still restricts their right to govern themselves.

• Most Natives want to abolish the Indian Act, but they realize that its recognition of their distinct status provides some safeguards for their culture and their land. Indians would like to keep some of the government benefits provided under the act but gain additional benefits and attain more self-government

Bill C-31• The more things change, the more they remain

the same. This adage aptly describes the changes that Bill C-3 1 brought about more than ten years ago. It is not that the changes Bill C-3 1 made were unimportant, even less that they were ineffective.

• The amendments Bill C-31 made to the Indian Act are without a doubt the most important that had ever been made to the Indian Act regime in its over 100 years of existence.

• They have affected and continue to affect the lives of Native and Metis people everywhere in Canada.

The Bill did essentially four things: • 1. it rescinded the "enfranchisement" provisions of the

Old Indian Act, and provided for the "reinstatement" of persons who had lost their Status as a result of those provisions;

• 2. it did away with the "patrilineal" definition of eligibility for Indian Status and replaced it with new gender neutral eligibility rules;

• 3. it enabled Bands to assume control of their Band membership list on condition that they adopt a Membership Code that conforms to the Bill;

• 4. it allowed Bands to deny membership to certain classes of Status Indians who would otherwise be entitled to membership if control of the Band List had continued to reside with the Department of Indian Affairs.

Motivations?

• The biggest reason for the Bill was clearly to make the Indian Act conform to section 15 - the equality rights section - of the Canadian Charter of Rights and Freedoms.

• The provisions of the Old Act which most obviously offended the equality rights guaranteed to all residents of Canada by the Charter were those that stripped many a Status Indian women who married white or Non-Status of her Status and any right to confer it on her children, while not doing the same for Status Indian males.

• A Status Indian male who married Non- Status not only retained his Status, but endowed Indian Status on his children and his non-Indian wife as well.

• These provisions of the Old Indian Act, in particular section 12(1) (b), were so clearly discriminatory that they had no hope of prevailing against the Charter. They had to go.

• As these sections were now constitutionally invalid, the "enfranchisement" of Native women that had taken place pursuant to them was now also invalid. The federal government was therefore forced to provide for the "reinstatement" of the Indian people they had affected.

• Ottawa decided to revoke all other sections of the Indian Act under which a Status Indian could be "enfranchised" and to provide for the reinstatement of all those who had lost their Status on their account.

• Bill C-31 naturally raised expectations that henceforth all Natives would be treated the same.

• It was widely expected that the Bill would finally do away with the category "Non-Status Indians" and that, in the future, all Natives would be recognized as Indians under the Indian Act.

• To most Native people off-reserve, acquisition of Indian Status implied that they would also be accorded the rights and benefits that the Indian Act regime had traditionally reserved for Status Indians.

Problems• This is the first major failing of the Bill. Not only does it not ensure

the equal treatment of Indian people, it actually propagates and reinforces the "caste system" into which the Indian Act has historically divided Indian people.

• For all practical purposes, Bill C-31 establishes a regime that divides Indian people into at least four major castes:

1. Old Act Indians: Indians, mainly on reserve, who had Status even before Bill C-31;

2. Restorations: C-31 Indians who have had their Status restored to them by virtue of Bill C-31;

3. First Generation Reinstatements: the children of C-31 Indians who had their Status restored; and 4. Non-Status Indians: persons of Indian ancestry who are not eligible for Indian Status neither under the Old Act or Bill C- 31.

• It does not even eliminate the category "Non-Status Indians"; rather, as we shall see, it creates the conditions for a rapid expansion of the Non-Status Indian population in the future.

• At the same time, it divides the Native population of Canada into even more classes than ever before in terms of legal rights, while reinforcing the historic division between on and off-reserve Indians.

• The federal government could have given Native women the same power as Native men had under the Old Act to confer Indian Status on their children.

• In this event, a Status Indian women would have acquired the right to confer Indian Status on her children, no matter what the ethnic background of her partner, in the same way that Native men under the Old Act could do.

• However, this was not the solution the federal government adopted.

• Rather than raise Native women to the same power as men, the federal government chose to place Native men in a position akin to that of women under the Old Act.

• Bill C-31 adopts the rule that after two consecutive generations of marrying Non-Status, children of the third generation are not eligible for Status. The same rule applies to both men and women.

• Within the next twenty years, the new Status rules will result in the disqualification of hundred's of thousands of descendants of today's Status Indians.

• The federal government has no similar rule to determine who is an Inuit or who is Metis or who is French Canadian for that matter.

Conclusions 1. it raised expectations that all Natives would be

recognized as Aboriginals and treated equally before the law and by the federal government, yet it merely reproduced in a new form the old disparities in the treatment accorded off-reserve Natives relative to Natives on reserve;

2. it eliminated the sexual discrimination inherent in the old patrilineal eligibility rules for Indian Status, only to impose new gender-neutral rules that are as detrimental in their own way to the Native people of Canada as were the old rules that they replace; and

3. it allows for the reinstatement of C-31 Native, but then places their rights in jeopardy by enabling Bands to deny them membership.