When Europeans arrived on the shores of what is now called North America, they encountered complex civilizations. At home in the cosmopolitan heartland of powerful confederacies, Indigenous people adopted settler people into a pre-existing web of relations: familial, military, diplomatic and commercial. Between 1600 and 1850, settler people adopted Indigenous diplomatic protocols and traditions: the British and French learned to make wampum belts to cement treaties, learned Indigenous languages and customs, and intermarried or were adopted into Indigenous communities by the assignation of a chiefly title that made diplomacy possible within the Indigenous familial tradition.

The adoption of new diplomatic protocols and customs, and the exchange of technologies, ideas, sciences and philosophies between settler and Indigenous people resulted from the meeting and melding of distinctly modern peoples. Indigenous technologies made travel possible in this vast and foreign land, and the adoption of steel and firearms vastly simplified, though did not fundamentally alter, many aspects of Indigenous life.

Haudenosaunee Chiefs from the Six Nations Reserve reading wampum belts in Brantford, Ontario. (L. to R.): Joseph Snow, Onondaga; George Henry Martin Johnson, Mohawk; John Buch, Onondaga; John Smoke Johnson, Mohawk; Isaac Hill, Onondaga; John Senaca Johnson, Seneca. Photo by Horatio Hale, 1871. (Source: Electric Studio / Library and Archives Canada / c085137

Today, it is hard for settler people to think of Indigenous people as modern, but rest assured, we Indigenous people of today are your modern contemporaries, just as we were in 1867 and 1763 and 1600. Like settler society, Indigenous people have happily adopted new technologies, while still maintaining ancient languages and traditions. But make no mistake: just because some of our practices and knowledge are ancient, these cultural traditions and beliefs remain as sacred parts of our modern identities, just as Christians, Jews and Muslims are modern-day Canadians. And bear in mind that so much of what defines the modern — the very concept of the nation state, the idea of international law, the basic notion of science as a series of testable propositions — these things are relatively recent innovations dating from around 1650. What is more, Indigenous people, just like the settler people, adopted these new conventions and ideas at precisely the same time in our shared history, just as we adopted phones, and television and computers in lockstep with the settler people.

It should come as no surprise that one of the first legislative acts of the young Dominion government was the creation of the Indian Act. Indigenous people were, in 1867, no longer needed as military allies, but they still held vast lands and territories, and now armed with modern weapons and horses, were a force to be reckoned with. At Confederation, buffalo still fed and clothed the Indigenous people of the Great Plains, and while much diminished by disease, Indigenous people in 1867 were not merely a modern people, they were a modern people in possession of the very lands the young Dominion government desired as part of its dream of nationhood.

The first iteration of the Indian Act set out to consolidate existing treaties and the terms of the Royal Proclamation of 1763, but the Act also made Indigenous people noncitizens of Canada — citizenship for Indigenous people required renunciation of the traditions, languages and cultures that had sustained our communities for millennia. In this way, Indigenous people were legislated into a separate category of person: there were Canadian citizens, who were modern people, and there were Indigenous people, who were, now literally by definition, neither citizens nor modern.

Although revised to remove some of most blatantly racist sections of the Act in 1950 and 2014, the basic structure of the Indian Act has remained unchanged for more than a century. The Act defines who is and who is not, legally, an Indian, sets out the process for election of chief and council, and provides authority for the Minister of Indian Affairs to unseat that same chief and council. The Act provides a limited sphere of jurisdiction over matters such as beekeeping but prohibits both the mortgaging of Indian lands and the sale of material wealth of the reservation such as sand, gravel or any other mineral. Until very recently, in the Prairie provinces the Act prohibited the sale of any produce to a non-Indian.

The Indian Act provides for almost no powers of taxation and thus relegates more than 600 First Nation communities to a state of perpetual poverty.

Although Indigenous people are a modern people, the Indian Act is a relic from a bygone era. Most notably, the Indian Act provides for almost no powers of taxation, and thus relegates more than 600 First Nation communities to a state of perpetual poverty. Unable to raise any income through the taxation of traditional lands and territories, First Nation governments must await transfers of federal funds to pay for roads, schools, public services, health care and the kinds of basic infrastructure like potable water that other Canadians take for granted. If the federal government chooses not to pay for the repair or maintenance of a water treatment plant, then the community goes without.

Authority to tax First Nations’ traditional territories does exist, but these powers reside not with First Nations but with the provinces and federal government. In Ontario, which has 43 First Nation communities unconnected by road to the south, the province receives nearly a billion dollars in stumpage fees from the North, to cite the numbers for just one resource industry. Because “Indians and lands reserved for Indians” are the constitutional responsibility of the federal government (subsection 91(24) of the Constitution Act, 1867), the provinces do not return any funds to the First Nations from whose traditional territories those taxes were earned.

A modern relationship between Indigenous and settler people is possible, and to my mind, that modern relationship must be predicated on an equitable division of jurisdiction, including and perhaps most especially, the jurisdiction to control and tax the natural wealth of our traditional territories. Since Indigenous people have lived in our territories for ten thousand years, and wish to live at least another ten thousand years in the same territory, we Indigenous people are best placed to determine the kinds of development that should take place. In doing so, we would actively work to protect the watersheds and forests that sustain the south with air to breathe and water to drink.

Of course, there is a real concern for provincial coffers. Without being able to tax the wealth of the First Nation traditional territories, federal and provincial budgets would suffer gaping deficits. But we already have a way to redistribute wealth in this country; it is called fiscal federalism. The general principle is this: provinces that do well pay into the fund, while provinces that are not doing well receive equalization payments under a complex funding formula. Indigenous people could participate in this same system, taxing the resource industries that operate in their territories, applying some of those funds to the operation of their communities, and returning the rest to the fiscal funding formula for redistribution to the south. In this way, too, we would all realize that Indigenous communities are, and always have been, subsidizing the south.

Indigenous people have always been modern people, but we have been saddled by an unjust distribution of jurisdiction that leaves us paupers awaiting handouts in the midst of our enormously rich territories. Reforming the Indian Act in a just way has to mean more than tinkering, has to mean more than getting rid of the Act; instead, a reform of the Indian Act that respects Indigenous people as modern people means sharing not only the wealth of this great land but the jurisdiction to govern over its many riches.

This article is part of the special feature « The Indian Act: Breaking Its Stubborn Grip. »

Photo: Shoal Lake First Nation, Manitoba. THE CANADIAN PRESS/John Wood

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Douglas Sanderson
Douglas Sanderson (Amo Binashii) est titulaire de la Chaire Prichard-Wilson en droit et en politique publique Ă  la facultĂ© de droit de l’UniversitĂ© de Toronto et a Ă©tĂ© conseiller principal en matiĂšre de politique auprĂšs du Procureur gĂ©nĂ©ral et du ministre des Affaires autochtones de l’Ontario. Il est le co-auteur de Valley of the Birdtail : An Indian Reserve, a White Town, and the Road to Reconciliation (HarperCollins, 2022). Il est un Maskegon du Clan du Castor de la Nation crie Opaskwayak.

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