The Indian Act is a Canadian federal law that governs all matters pertaining to First Nations people (defined as “Indians” in the act), Indian status, bands, and reserves. This law has been invasive and restrictive, as it authorizes the federal government to regulate and administer the affairs and day-to-day lives of registered “Indians” and reserve communities. This authority has ranged from extensive political control, such as imposing governing structures on Indigenous communities in the form of band councils, to control over the rights of Indigenous Peoples to practice their culture and traditions. The Indian Act also enables the government to determine the land base of these groups in the form of reserves, and even to define who qualifies as an “Indian” in the form of Indian status (kept in a federal registry).
While the Indian Act has undergone many amendments and minor changes since it was first passed in 1876, today it remains relatively unchanged.
The Indian Act is administered by Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC), formerly the department of Indigenous and Northern Affairs Canada (INAC). The Indian Act is part of a long history of assimilation policies that intended to terminate the cultural, social, economic, and political distinctiveness of Indigenous Peoples by forcefully assimilating and absorbing them into mainstream Canadian life and values.
“The great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion as speedily as they are fit to change.”
- John A. Macdonald, 1887
Pertaining to the Rights of Indigenous Peoples in Canada, the Constitution Act of 1982 states:
Part I - Section 25 of the Canadian Charter of Rights and Freedoms:
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including:
a. any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
b. any rights or freedoms that now exist by way of land claim agreements or may be so acquired.
Part II - Section 35 of the Constitution Act:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
It is important to understand that Section 35 recognizes Aboriginal rights but did not create them; Aboriginal and/or Indigenous rights have existed before Section 35.
The United Nations Declaration on the Rights of Indigenous Peoples is an international declaration adopted by the United Nations on September 13, 2007 to preserve the rights that “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” The UNDRIP protects collective rights that may not be addressed in other human rights charters that emphasize individual rights, and it also safeguards the individual rights of Indigenous people. The Declaration is the product of almost 25 years of deliberation by U.N. member states and Indigenous Peoples globally.
The first of the UNDRIP’s 46 articles declare that “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights (4) and international human rights law.” The Declaration goes on to guarantee the rights of Indigenous Peoples to enjoy and practice their cultures and customs, their religions, and their languages, and to develop and strengthen their economies and their social and political institutions. Indigenous Peoples have the right to be free from discrimination, and the right to a nationality.
UNDRIP recognizes Indigenous Peoples’ right to self-determination, which includes the right “to freely determine their political status and freely pursue their economic, social and cultural development.” It also affirms Indigenous Peoples’ right “to autonomy or self-government in matters relating to their internal and local affairs,” and protects their right “to maintain and strengthen their distinct political, legal, economic, social and cultural institutions”. It also states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired,” and it directs states to give legal recognition to these territories. The Declaration does not override the rights of Indigenous Peoples contained in other Treaties and agreements with individual nation-states, and it commands these states to observe and enforce the agreements.
Learn more about UNDRIP here
For the full report, click here
In 1969, Prime Minister Pierre Trudeau and his Minister of Indian Affairs, Jean Chrétien, unveiled a policy that proposed ending the legal relationship between Indigenous Peoples and Canada while also dissolving the Indian Act. This white paper was met with opposition from Indigenous leaders across the land which created a new era of Indigenous political organizing in Canada. (Source: indigenousfoundations.arts.ubc.ca)
View the full comparative analysis of the red and white paper policies here
View the full white paper policy document here
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