Self-determination and self-government cannot be achieved using legislative tools like the Indian Act, designed in the 19th century.
The Indian Act is a seriously flawed piece of legislation that has persisted for over a century and become institutionalized and entrenched. Both the Indian Act and the Indian Department have evaded every attempt at substantial reform. As such the oppressive, restrictive and discriminatory principles of this 19th century legislation have been carried into the modern era. The act does not reflect the needs of the various and diverse First Nations and has never been responsive to their attempts to redraft it in the image of their own aspirations. While First Nations are reluctant to abandon the Indian Act because it both symbolizes the duties owed the Crown and provides protection of community resources against alienation by individuals and outside interests, it does not allow for full development and self-determination. Nor is the Indian Act an appropriate vehicle for implementing historic treaty obligation and responsibilities.
Joan Holmes, “The Original Intentions of the Indian Act,” (2002)
The Indian Act remains one of the most visible legacies of Canada’s colonial history. Passed in 1876, it represented the thinking of the day about Indigenous peoples: that they were less evolved versions of Europeans who needed to be civilized and protected during the process. The Act’s premises were well accepted at the time.
The effect of the Act was to create a category of a legal person over whom the state could exert its power, transforming Indians into Europeans or “civilizing” them, to use the parlance of the era. In addition to creating legal Indians, the Act created Indian reserves, Indian bands, and Indian band councils and imposed a form of democracy upon Indians. It also changed the social structures of Indian communities and tried to remake them in European fashion with men as heads of households and women mostly confined to the domestic sphere. Indian mobility was constrained, as Indians who wished to leave their reserves had to obtain permission of the local Indian agent. In the first half of the twentieth century, lawyers were prohibited from receiving funds from Indians on cases involving Indian lands.
The Act also removed Indians residing on Indian reserves from the economic sphere, making it difficult for reserves to become self-sufficient. The location of many reserves on lands that were unsuitable for development or agriculture did not help. Moreover, the Act fostered the development of different social categories of Indians, creating a distinction between those who are entitled to be registered as Indians (“status Indians”) and those who are not. It has split families according to a set of arcane rules for determining who can be registered as an Indian.
In no other sphere of Canadian life would we use a nineteenth-century piece of legislation to achieve twenty-first-century objectives.
The Act has dominated Indians’ lives for more than 140 years. While it has been amended from time to time, its essential purpose has not changed: it remains nineteenth-century legislation designed to transform Indians. It is now the twenty-first century, and Indians are vigorously pursuing their self-determined objectives. Governments don’t set development goals and objectives for Indians; Indians set them themselves and Canadian governments are expected to support them. In no other sphere of Canadian life would we use a nineteenth-century piece of legislation to achieve twenty-first-century objectives.
Indian reserves, bands and band councils still exist, but today we call them First Nations lands, communities, and councils. These new political conventions and terms mask the underlying reality that they still operate according to the provisions of the Indian Act. Indian/First Nations councils have enormous responsibilities for community infrastructure, health care facilities, schools, housing and land regulation and development, economic development corporations, and a wide variety of community programs funded through a complex maze of government and private sector resources. Managing the finances of a modern First Nations government is challenging and would tax the skills of many accountants and sophisticated financial managers.
Furthermore, First Nations governments are part of an incredibly complex web of relationships that need to be managed and tended to, including with other First Nations, Indigenous political organizations, municipal provincial and federal governments, and private sector businesses. They must negotiate a set of financial, environmental, housing, planning, health and social regulations, ensuring compliance with all of them. Yet, the powers of band councils under the Indian Act have remained virtually unchanged since the late 1800s.
There have been attempts to revise or amend the Indian Act, most notably in 1951 and 1985. Bill C-31 (1985) amended the Act to deal with gender discrimination. Until then, women who married non-status men would lose their status, as would their children. The legislation also gave band councils more power over determining membership.
Recent attempts to create an environment that is conducive to modern First Nations realities have taken place outside the Indian Act. The 1999 First Nations Land Management Act (FNLMA) and the 2013 First Nations Transparency Act (FNTA) are examples of efforts to modernize the powers of First Nations councils. The FNLMA addresses the question of First Nations land use for residence and development. The FNTA creates\d a regulatory framework for the relationship between councils and their citizens, an issue not addressed in the Indian Act (in 2015, the Liberal government announced a moratorium on enforcing the FNTA).
Land claim agreements and modern treaties often remove beneficiaries from the aegis of the Indian Act. The 1999 Nisga’a Treaty removed the Indian Act entirely from the lives of Nisga’a, who are no longer Indians but Nisga’a citizens and Canadian citizens under the Nisga’a citizenship code.
The challenge of substantial reform is that the Indian Act has become an important and foundational aspect of many lives. It provides the structure for local community governance and community life. It defines a protected place to live and provides the basis for an identity through which many engage with the social and political world. While we now use the terms “Indigenous,” “Aboriginal” and “Native” to denote the collectivity of original inhabitants, the reality is that it is the Indian Act that has legal meaning and consequence. Reforming the Act in one fell swoop or repealing it would be enormously disruptive to First Nations.
I like to think of Indian Act reform in the same way that I think of land reform: it is extremely complex, fraught with political danger and unlikely to succeed without significant support from the people. First Nations are modern communities, existing in a world that did not exist at the original enactment of the Act. Every First Nations council wants to take a place of power, dignity and respect in the governance structure of Canada; to be recognized as a legitimate First Nations government in its own right; and to have the resources to develop its community as a safe and healthy place to live and work. First Nations have also created new collective political institutions: tribal councils, and political representative groups such as the Assembly of First Nations and the Saskatchewan Federation of Indigenous Sovereign Nations. They are vehicles through which self-determined objectives can also be pursued by means of collective action. The political goal of self-determination was denied in 1876 and is still challenging to achieve in 2017.
Can First Nations’ objectives be achieved with reform to the current Indian Act? Perhaps, but amending the Act is a lengthy and complex process. Experience shows that reform is challenging, as exemplified by the three-decades-long attempt to remove gender discrimination from the Act — now in the form of Senate Bill S-3. Reform may have to take place outside of the Indian Act through an opt-in approach community by community, as was used in the First Nations Land Management Act process. Proposed changes without First Nations’ consultation and buy-in have been strongly resisted.
The Indian Association of Alberta’s Citizens Plus (or “Red Paper”) released in 1970, argued that Indian Act reform was to be undertaken at a pace to be determined by local communities. A year later, the Manitoba Indian Brotherhood, now the Assembly of Manitoba Chiefs, supported this position in their influential position paper Our Tomorrows, Today: Wahbung. Both papers were responses to the federal government’s 1969 White Paper on Indian policy and its plan to unilaterally repeal the Indian Act within five years.
The Indian Act is so intertwined with many aspects of First Nations’ lives that a bottom-up, community-driven and community-specific approach is the only approach that has a reasonable hope of success. We already have experience moving away from the Act through the processes of negotiating modern treaties and self-government agreements. And we have the recommendations of the 1996 Royal Commission on Aboriginal Peoples (RCAP) that set out a framework to move beyond the Indian Act.
In October 2017, the federal government finally adopted one of the recommendations of RCAP regarding reforming the relationship between Indigenous peoples and the Crown, by dividing the Department of Indigenous Affairs into two, one with responsibility for Indigenous-Crown relationships and one for Indigenous services. There are also discussions underway to modernize the financial relationship between Canada and First Nations governments. Most likely these will result in reforms outside the Indian Act.
The visions and goals of modern First Nations have been articulated repeatedly since the latter part of the twentieth century and they remain fundamentally the same: self-determination and self-government as a means to improving the quality of life, in all its dimensions, for Indigenous peoples. These aspirations cannot be achieved using legislative tools designed in the nineteenth century.
This article is part of the special feature The Indian Act: Breaking Its Stubborn Grip.
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