The Indian Act in Canada – An Act of White Racism, Legal Status … and Paradox


by Gary Porter


The Gradual Civilization Act, passed by Parliament of the Province of Canada (pre-Confederation) in 1857, sought to assimilate Indian people into Canadian white settler society by encouraging “enfranchisement.” Enfranchisement meant giving up recognition as an Indian and the special relationship of Indians to the government in order to become an ordinary Canadian citizen. The act was a failure — only one person voluntarily enfranchised.


The federal government then enacted the Gradual Enfranchisement Act which established the elective band council system that remains in the Indian Act to this day. This was an attack on hereditary chiefs who were much more difficult to deal with because their status was not up for periodic reaffirmation, and it is not subject to white men’s corrupting inducements and acts of intimidation.

The Gradual Enfranchisement Act also granted the Superintendent General of Indian Affairs strong paternal control over status Indians. For example, the Superintendent had the power to determine who was of “good moral character” and therefore deserved certain benefits. He could decide whether a widow of an enfranchised Indian “lives respectably” and could therefore keep her children in the event of the father’s death. The Act also severely restricted the governing powers of band councils, regulated alcohol consumption, and determined who would be eligible for band and treaty benefits. It also marks the beginning of gender-based restrictions to status.


The Confederation of Canada in 1867 presented the federal government with a problem: What was the best way to regulate distinct and separate Indigenous groups under one law. Despite the diversity of experiences and relationships between Indigenous peoples and settlers across the country, Confederation unilaterally established a very different relationship between Canada and the many indigenous nations by disregarding the interests and treaty rights of Indigenous peoples and uniformly making them legally wards of the state. Systems of control that had been established in prior legislation were now newly defined under one act, the Indian Act of 1867. This act effectively treated Indigenous people as children, as wards of the state.


Indigenous peoples have resisted oppression and sought active participation in defining and establishing their rights from the very beginning. Early on, Indigenous leaders petitioned colonial leadership, including the Prime Minister and the British monarch, against oppressive legislation and systemic denial of their rights.


The legislation aimed against Indigenous peoples did not end Indigenous cultural practices.  In most cases it drove them underground, or caused Indigenous peoples to create new ways of continuing them without facing persecution.


One of the most famous examples of this oppression and subsequent resistance and adaptation is known as the “Potlatch Law.” In 1884, the federal government banned potlatches under the Indian Act, with the outlawing of other ceremonies, such as the sun dance, to follow in later years.  The potlatch was one of the most important ceremonies for coastal First Nations in the west, and marked important occasions, and also played a crucial role in wealth distribution.


Indian Agents and missionaries felt it undercut assimilation goals. They wanted Indigenous people to shift from an economic system of redistribution to one of private property ownership—seemingly impossible as long as the potlatch existed.  The outlawing of the potlatch severely disrupted these cultural traditions, although many groups continued to potlatch.


Countless communities were impacted by the restriction on ceremonies, facing legacies that continue to this day in the form of lost cultural practices, traditions, and oral history.


When Indigenous political organizing became more extensive in the 1920s and groups began to pursue land claims, the federal government added Section 141 to the Indian Act. Section 141 outlawed the hiring of lawyers and legal counsel by Indians, effectively barring Indigenous peoples from fighting for their rights through the legal system.


Eventually, these laws expanded to such a point that virtually any gathering was strictly prohibited and would result in a jail term.  These amendments presented a significant barrier to Indigenous political organizing and many organizations had to disband. However, it did not entirely stop political organizing—Indigenous organizations such as the Nisga’a Land Committee and the Native Brotherhood of British Columbia managed to continue to organize the fight for their rights underground.


After World War II, with Canada’s commitment to the United Nations’ Universal Declaration of Human Rights, came revision of the Indian Act in 1951.  The more oppressive sections of the Indian Act were amended or removed. It was no longer illegal for Indians to practice their customs and culture such as the potlatch. They were now allowed to enter pool halls and to gamble—although restrictions on alcohol were reinforced. Indians were also now allowed to appear off-reserve in ceremonial dress without permission of the Indian Agent, to organize and hire legal counsel, and Indian women were now allowed to vote in band councils.


The federal government’s general purpose for the amendments at that time was to move away from casting Indians as wards of the state and instead facilitate their becoming contributing citizens of Canada.


In 1969, Prime Minister Pierre Trudeau proposed a “white paper” policy with the aim of achieving greater equality for Indians. To do this, he proposed to abolish the Indian Act and dismantle the Department of Indian Affairs. Indians would essentially become like other Canadian citizens.


A key part of this proposal is that reserves, held communally by indigenous bands, would be broken up into land parcels that could be bought and sold like any other land. But it was the continued existence of communally owned land upon which indigenous bands lived, worked and celebrated their cultural traditions that had been key to indigenous survival against the intense white pressure to assimilate into settler society.


Of course, integration came with a racist attitude. Integration meant seizing indigenous land and resources and leaving the people marginalized on the fringes of a racist white society.


Although it was widely agreed that the Department of Indian Affairs and the Indian Act were hugely problematic, this “white paper” policy was overwhelmingly rejected by Indigenous peoples across Canada who felt that assimilating into mainstream Canadian society was not the means to achieve equality.


They wanted to maintain a legal distinction as Indian people. Due to this widespread resistance against the white paper, the policy was eventually abandoned by the federal government.  In fact, scholar John Milloy pinpoints the proposed white paper policy of 1969 as the turning point when the federal government finally abandoned their policy of assimilation for a policy geared toward establishing constitutionally protected rights for First Nations.


The Indian Act has been highly criticized for its gender bias as another means of terminating one’s Indian status, thus excluding women from their Indigenous rights. Legislation stated that a status Indian woman who married a non-Indian man would cease to be an Indian. She would lose her status, and with it, she would lose treaty benefits, health benefits, the right to live on her reserve, the right to inherit her family property, and even the right to be buried on the reserve with her ancestors.


In the 1970s, Indigenous women began organizing to battle the discriminatory legislation.  In 1979, Jeanette Corbière Lavalle and Yvonne Bedard took the Canadian government to court, claiming that Section 12 of The Indian Act violated the Canadian Bill of Rights. They lost their case at the Supreme Court of Canada. In 1981, Sandra Lovelace resumed the fight and took her case to the United Nations. The United Nations Human Rights Committee found Canada in breach of the Covenant on Civil and Political Rights.


When the Canadian Human Rights Act was passed in 1977, Section 67 (originally subsection 63(2)) was created specifically to prohibit First Nations people from filing an official complaint that the Indian Act was a human rights violation. This in itself was later described as a “serious disregard for human rights.” The exemption of the Indian Act from Canada’s own Human Rights law is an implicit recognition by the Canadian government of how unreasonable the Indian Act truly is. In May of 2008, the House of Commons unanimously passed Bill C-21 to repeal this section of the Canadian Human Rights Act.


In the 1980s, the United Nations Human Rights Committee and the Canadian Human Rights Commission identified Section 12 of the Indian Act as a human rights abuse, as it removed a woman’s Indian status if she married a non-Indian man. This is in direct violation the International Covenant on Civil and Political Rights that protects a minority’s right to belong to their cultural group.


The UN ruling in 1982 coincided with the repatriation of the Canadian constitution, which includes the Charter of Rights and Freedoms that guarantees gender equality. The government allowed itself three years to change any law that was not in line with the new constitution and Charter. After consultations and negotiations, the Indian Act was amended in 1985, and Bill C-31 passed so that those who had lost their status could regain it.


However, Bill C-31 is still seen by many as unconstitutional, as those who have their status reinstated can only pass it on for one generation. This was very recently put before the courts when Sharon McIvor challenged Canada, arguing that this was not in keeping with the Charter of Rights and Freedoms. In June 2009, the Supreme Court of British Columbia ruled that restricting inheritance of status to the children of women reinstated by Bill-C31 is in fact unconstitutional, and violates equality rights guaranteed in Section 15 of the Charter of Rights and Freedoms. The government is currently in the process of amending the Indian Act.


So why doesn’t the Federal Government simply abolish the Indian Act?


The Indian Act is a very controversial piece of legislation.  The Assembly of First Nations describes it as a form of apartheid. Amnesty International, the United Nations, and the Canadian Human Rights Commission have continually criticized it as a human rights abuse. These groups claim that the Canadian government does not have the right to unilaterally extinguish Indigenous rights—something the government could legally do to status Indians up until 1985 through the process of enfranchisement, and can still control through status.

Despite controversy, the Indian Act is historically and legally significant for Indigenous peoples.  It acknowledges and affirms the unique historical and constitutional relationship Indigenous peoples have with the Canadian state. For this reason, despite its problematic nature, efforts to outright abolish the Indian Act have been met with widespread resistance. (See, for example, the White Paper, 1969). As Harold Cardinal explained in 1969,

“We do not want the Indian Act retained because it is a good piece of legislation. It isn’t. It is discriminatory from start to finish. But it is a lever in our hands and an embarrassment to the government, as it should be. No just society and no society with even pretensions to being just can long tolerate such a piece of legislation, but we would rather continue to live in bondage under the inequitable Indian Act than surrender our sacred rights. Any time the government wants to honour its obligations to us we are more than happy to help devise new Indian legislation.”


The Royal Commission on Aboriginal Peoples, established by Ottawa in 1991 after the OKA and Meech Lake Accord struggles, identified this situation as a paradox.  That is key to understanding the Indian Act and the relationship between the Canadian state and status Indians. The Indian Act legally distinguishes between First Nations and other Canadians, and acknowledges that the federal government has a unique relationship with, and obligation to, First Nations. At the same time, any changes to the Indian Act have historically been proposed or established unilaterally by the government. Although there are many differing opinions on how to confront the issues presented by the Indian Act, Indigenous leaders widely agree that if any alternative political relationship is to be worked out between First Nations and the government, First Nations will need to be leading participants in establishing it.


Canadian capitalism will forever try to undermine indigenous title to over 2000 communally owned reserves, some near or partially inside cities where development would be highly lucrative, and others containing valuable natural resources.


The struggle for self-determination of indigenous peoples, including the settlement of land claims, for full governance over their land, including resource development and transit of highways, rail lines and pipelines across their land, full control of police and courts on their land, including the right to arrest and charge non-indigenous people for crimes committed on indigenous land, provision of health and education services to the same extent as available to the settler population, are key prerequisites to a genuine reconciliation between indigenous and settler peoples.  Given the great rip-off by Canada’s corporate elite, over centuries, of the common wealth nurtured by Indigenous peoples, how can there be real conciliation without restitution?