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History of the Indian Act – Part Four

History of the Indian Act – Part Four

Indigenous Policy in Transition: The Indian Act from 1952 to Present Contemporary amendments and revisions of the Indian Act Since the revisions of 1951, the Indian Act has continued to undergo changes, both in terms of its underlying philosophy and its specific provisions. The following provides an overview of the Indian Act during the period 1952 to Present.

Indigenous Policy in Transition: The Indian Act from 1952 to Present

Contemporary amendments and revisions of the Indian Act

Since the revisions of 1951, the Indian Act has continued to undergo changes, both in terms of its underlying philosophy and its specific provisions. The following provides an overview of the Indian Act during the period 1952 to Present.

Conflicting Views on Indigenous Policy

From the 1950s onward, Indigenous policy in Canada entered into a complex period. On the one hand, there remained the traditional philosophy of assimilation, which encouraged Indians to leave behind their Indian status and integrate into the broader Canadian society. Contrasted to this, however, were new approaches to Indigenous policy, based on the desire of Indigenous groups to assume control over their own communities, as well as new ideas derived from the international indigenous movements of the time. Central to this approach was the view of Indigenous groups as distinct Nations, which were entitled to political, social, and economic self-determination.

This period of complexity is evident in the range of actual and proposed amendments that occurred to the Indian Actbetween 1952 and 1985. For example, in 1960, Indigenous received the right to vote federally without having to give up their Indian status. Furthermore, in 1961, the compulsory enfranchisement provisions were removed from the Indian Act, meaning that Indigenous could no longer be forced to give up their Indian status. This eliminated some of the key assimilation provisions of the Indian Act, which had been in existence since the late 1800s.

In 1969, however, the federal government introduced the 1969 White Paper on Indigenous affairs. This strategy paper proposed the abolition of the Indian Act altogether, the rejection of land claims, and the assimilation of Indigenous into Canadian society (with the status of an ethnic minority, as opposed to being a distinct national-cultural group). Strong Indigenous and non-Indigenous criticism of the 1969 White Paper eventually led the federal government to back away from this position.

The 1985 Revision of the Indian Act

One of the more significant changes to the Indian Act came in 1985, when the federal government introduced Bill C-31. This amendment was in response to changes in Canada’s constitutional framework; in particular, the introduction of the Canadian Charter of Rights and Freedoms in 1982. Section 15 of the Charter prohibited discrimination based on certain characteristics, such as race, ethnicity, religion, sex, age, or mental or physical disability. This right to equality had important implications for sections of the Indian Act, particularly in regard to the historical practice of compulsory enfranchisement for Indian women who married non-Indigenous men (while Indian men marrying non-Indigenous women could retain their Indian status).

The Indian Act, 1985 removed this discrimination by asserting that women could no longer gain or lose Indian status as a result of marriage. Moreover, the new Act permitted the restoration of Indian status to several groups that had been forcefully enfranchised in the past. This included Indian women who had lost status due to marrying non-Indigenous; children enfranchised as a result of their mothers’ marriage to non-Indigenous; persons enfranchised as a result of the double-mother provision; and illegitimate children of Indian women who lost their Indian status because of non-Indigenous paternity.

In addition to removing elements of discrimination from the Act, the 1985 revision also granted Indigenous bands the right to determine their own membership. Under the Act, bands were allowed to administer and update their band lists, which was a record of all persons who were recognized as formally belonging to the band. Moreover, bands were allowed to establish their own rules of membership in administering their band lists. This reform enabled greater Indigenous control over who was to be considered an Indian for the purpose of the Indian Act.

Recent Amendments to the Indian Act

The last major revision of the Indian Act occurred in 1985. Since that time, however, there have been further amendments to the legislation.

In 1988, the Act was changed to allow bands greater powers to tax land interests on their reserves, as well as permitted individuals to mortgage these leaseholds on reserves. The purpose of these reforms was to provide bands with access to revenues and financing to promote economic development on reserves.

The 1990s and early 2000s saw renewed efforts on the part of the federal government to significantly revise the Indian Act. In the early 1990s, the federal government announced its intention to eventually abolish the Indian Act. As part of this policy, the government introduced the Indian Act Optional Modification Act in 1996. The proposed legislation included modifications to the Indian Act in several areas, such as the system of the band governance, bylaw authority, and the regulation of reserve land and resources. The Act faced strong opposition from Indigenous groups and was never passed by Parliament.

In 2002, the federal government again initiated a major overhaul of the Indian Act with the introduction of The First Nations Governance Act. Central to the new Act was the requirement that Indigenous bands develop a system by which to choose their leaders, as well as clear rules regarding how band money is spent. Furthermore, under the Act, the actions of Indigenous bands would no longer be exempt from the Canadian Charter of Rights and Freedoms. Again, however, the new Act faced opposition from Indigenous groups and was never passed by Parliament.

While these large overhaul packages were never passed, the federal government did implement more narrow revisions of the Indian Act during this period. In 1999, it enacted The First Nations Land Management Act (FNLMA). Previously, reserve land management, such as environmental standards and land use policies, was governed by provisions of the Indian Act. Under the FNLMA, however, bands can apply to the federal government to assume control over land management on their reserves (not extending into their territory). The purpose of the legislation is to improve band capacities and opportunities for economic development.

Furthermore, in 2000, the Indian Act was amended to allow band members living off-reserve to vote in band elections and referenda. This amendment was in response to a 1999 Supreme Court of Canada decision which concluded that the denial of voting rights for off-reserve band members violated their right to equality under Section 15 of the Canadian Charter of Rights and Freedoms.

In the 149 years which have passed, the Honour of the Crown has become badly tarnished. In the years following Treaty, the self-governing First Nations would become Wards of Canada subject to the control of Indian Agents and the Indian Act. When the lands were opened to settlement, exploitation Indigenous resources began without permission or compensation. Racism and discrimination in employment shunted the Indians aside. The Treaty promise of lands for farming was not fulfilled. First Nations people were denied access to their resources on unsettled lands.

 

What is needed today is the restoring the formal, or dignified, Crown (The Queen and her Representatives in their personal and constitutional capacities) in “Restoring the Honour of the Crown” to its role as a Treaty partner is a critical step in decolonization and instilling respect for Indigenous Nationhood within Canada. Establish Treaty tables between Canada (Crown) and First Nations is the desired pathway than through litigation in a colonial judicial system.

 

Miigwech!

WHITE SPOTTED HORSE

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