Why dismantling the Indian Act will be nearly impossible - Macleans.ca

Why dismantling the Indian Act will be nearly impossible

Opinion: And it might not be much of a solution to the issues that plague “Indians” in Canada, anyway

Indian act

Members of the Huu-ay-aht First Nation burn a copy of the Indian Act. (Darryl Dyck/CP)

Will Canada ever be post-Indian Act? Not likely. If it does happen, it won’t be anytime soon. It took Canada 150 years to dig itself into this Act and it may take just as long to dig ourselves out.

Before we look at what would be necessary to eliminate the Indian Act, we need to understand just what it is and why it was created. “Indian” is the legal designation given to the people who are controlled by the Indian Act. The word and all it implies is one of the things that would be eliminated in a post-Indian Act Canada. In reality, of course, Indian in this context is not a cultural term of identification. It’s a basket that includes hundreds of thousands of Indigenous individuals and collectives the federal government has chosen to designate as Indians. The Act was created to enable the government to control these people, to stop their mobility and eventually to eliminate them as “Indians.”

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In order to accomplish this goal the government needed to know where these Indigenous people were and how many there were. To figure out how many people it would be controlling, the government established a registry under the Indian Act. Reserves were created to control their mobility. Along with mobility, control over individual lives, band governance and reserve lands were all accomplished through the Indian Act. Over the decades controls tightened, restricting the people governed by the Indian Act in every way. If you wanted to go to university, join the army, become a priest, marry a non-Indian or vote, your Indian status was removed. Residential schools were the tool used to erase Indigenous cultures. If valuable resources were found on reserve lands, the reserve would be moved, always to poorer lands. If Canada could not move the reserve, it took the money from the resources on reserve.

For over a hundred years Canada’s Indian strategy was a perpetual search for a permanent solution to the “Indian problem.” Extinguishment was the policy; extinguishment of the people, their rights and land title. That’s how it began and that’s how it carried on. To some extent it continues to this day. While we don’t actively try to extinguish people these days, government policies are still complicit in erasing Indigenous rights and title.

So what do we really mean when we talk about a post-Indian Act Canada? If we mean eliminating the controls over Indians and assisting them to develop their potential, then it is a laudable goal. This seems to be what is motivating the federal government to talk about getting out from under the Indian Act. So why am I skeptical? It’s true, as Stó:lō Chief Terry Horne says, “the Indian Act sucks,” but should its removal really be the goal? It seems to me that we are putting our focus on the tool, not on the job to be accomplished.

But dismantling the Act is the stated goal of this government so let’s look at the effect this would have on the registry first. When we speak of a post-Indian Act Canada, do we mean the registry will be eliminated?  That all 637,660 Indians in Canada will no longer be considered “Indians”?  Many people are very attached to their Indian status. In fact, there are many court cases where people have and continue to overcome enormous obstacles in order to become registered. These people see value in being Indians and it is questionable whether they would want to have that status eliminated. For many off-reserve Indians (more than half of the Indians in Canada), status is the only thing they have to prove their First Nations identity. They receive some additional benefits because they are on the registry but the benefits are not provided pursuant to the Indian Act and could be eliminated at any time.

But post-Indian Act Canada won’t just mean abolishing the registry or the designation of “Indians” as defined by the Act. It will be much more complicated than that. There are two possible scenarios (the first being more likely); Give Indians on reserves more autonomy in the form of self-government and get Ottawa out of the business of overseeing reserve governments.

Seems simple, doesn’t it? But it won’t work. Why? Because the reserves are what the Cree call iskonikan, or leftovers. Getting out of the Indian Act but leaving people to live on the leftovers will solve nothing. They will not be under the purview of Ottawa, but their small land bases will not enable them to change their basic living conditions, poverty or economic problems. Under this scenario reserves in a post-Indian Act Canada would look much the same as today. The poor reserves in isolated parts of the country will continue to struggle and reserves in more geographically fortunate areas will continue to flourish. Some would be able to take it and thrive. Most would not. Unless the government provided significant transfer payments to struggling reserves, we would be setting them up for failure. This is not the post-Indian Act Canada we want to see.

The second scenario is how the dismantling of the Indian Act should go, but won’t because the Canadian status quo would have to change. Canada has built the state on three theories: (1) that it owns all the land and resources; (2) that is has all the decision-making authority over the uses of the land and resources; and (3) that it gets all the benefits or gets to decide who gets the benefits from the uses of the land and resources. A true post-Indian Act Canada would entail a fundamental shift in each of these theories. We would have to acknowledge that all Indigenous peoples in Canada, not just Indians, are also co-owners, co-decision-makers and co-benefit recipients of the lands and resources of this country.

It is highly unlikely that these fundamental changes will occur anytime soon due to multiple hurdles to overcome. The most basic one is that the majority of Canadians would not likely agree to share ownership and decision-making about lands and resources with Indigenous people. Canadians like the idea of reconciling with and supporting Indigenous people, but they firmly believe in their ownership of the land and resources and government having all decision-making powers.  This is the colonial stance. It is much like the Americans who were adamant about keeping the Panama Canal. Senator Hayakawa famously said, “It’s ours, we stole it fair and square.” Of course there was nothing fair or square about how Canada obtained the lands and resources and political power from Indigenous people, but I doubt Canadians will agree to give back what they have taken, Indian Act or no.

Another hurdle is the age-old provincial versus federal responsibility problem. Ottawa has jurisdiction over Indigenous people but the provinces have jurisdiction over lands and resources. So Ottawa can dismantle the Indian Act, but it cannot order the provinces to share land and resources ownership, decision-making or benefits. Getting Ottawa to remove its control of Indigenous people via the Indian Act will not solve this problem.  While some provincial governments have indicated they are ready to inch forward somewhat on sharing a few benefits, none are likely going to redistribute lands, resources and power on the necessary scale.

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Another obstacle is the education, health and socioeconomic gap between people living under the Indian Act and other Canadians. That gap needs serious attention but moving out from under the Indian Act will not close it. Nor will it provide any tools to move forward on these issues.

One final point. The Indian Act only applies to 46% of the Indigenous peoples in Canada. Getting into a post-Indian Act Canada would have no effect on the majority. The federal government has responsibility for all Indigenous peoples in Canada – Inuit, Métis and “Indians” whether they are registered under the Indian Act or not.  The relationship between Canada and all of its Indigenous peoples needs to change in a fundamental way, not just those under the Indian Act.

Despite my skepticism about Canada entering into a post-Indian Act world anytime soon, there are broader benefits to this discussion. It encourages us to imagine a Canada where Indigenous people are not a “problem” to be solved.  We can begin to envision a better country and then begin a serious conversation about how to do that. It may play a part, but this journey towards an improved Canada would likely not start or end with abolishing the Indian Act.

Jean Teillet is Senior Counsel with Pape Salter Teillet LLP and specializes in Indigenous rights law.



Why dismantling the Indian Act will be nearly impossible

  1. Need to pull one string at a time…without the baying of the half-wits.

  2. I’ve asked this on a previous article but could we replace the British Royal Family with an indigenous family ? Keep the Crown
    as it is but its legitimacy would derive from indigenous spirituality. Crown lands would belong to all. Ditto for our laws. The difficulties bringing this about would be enormous, of course. But perhaps no more divisive than any other options.

    • It will be the best thing that ever happened to the youth. They will finally have a future instead of being bound to an artificial lifestyle that ended hundreds of years ago.

  3. A ‘revolution’ would change the Indian Act. It could change the constitution and a whack of other legislation as well. Look how fast, easily and peacefully we unravelled centuries of abortion, sodomy and prostitution Laws. Do that again.

    • Correct me if I’m wrong — but I don’t remember centuries of abortion, sodomy and prostitution being enshrined in the constitution.

      It’s one thing to change the law or an act or legislation — but to change he constitution is a whole different animal.

  4. The author says “majority of Canadians would not likely agree to share ownership and decision-making about lands and resources with Indigenous people”. In the popular psyche the typical situation has the dominant culture proposing and the “Indians” opposing. With power sharing in the future it’s conceivable Indians might need support from other members of society to advance their projects. In the meantime we probably need some successful consensus projects.

  5. I am afraid that too many have become slaves of the government handouts. To think the indigenous adults want to let go of this lifestyle is ridiculous. Let’s hear about some positive things the indigenous people have proposed that made Canada great.

  6. Yeah, native royalty, the epitome of inequality.

    Then again both groups are welfare states, both funded and expected to produce nothing. Our taxes, not their own, fund their communities.

    Yet they depend on the products of civilization while wagging their fingers at the means. its nonsense.

    They deserve to participate in Canadian democracy. Nothing more.

  7. “It took Canada 150 years to dig itself into this Act and it may take just as long to dig ourselves out.” That’s a gross understatement: Canadian government as ‘the Crown’ has inherited all of the legacy/responsibility of the colonial period so it took a lot longer than 150 years to dig the hole. However, it is a popular theory used by various governments, particularly provinces, that undertakings by the Crown prior to Confederation, which in several cases is less than 150 years, have not descended to them i.e. they’re a different Crown than that historical one.
    “Ottawa has jurisdiction over Indigenous people but the provinces have jurisdiction over lands and resources.” This is an important point, a consequence of the provinces off-loading treaty responsibilities to the Crown in the form of the federal government and the British colonial office, essentially, to perpetuate colonialism. The provinces have and continue to be an impediment, and sometime accomplice, in federal-aboriginal relations. Various provinces are a little to a long way behind the federal government of the day in their thinking. Some provinces have even justified their aversion to ‘native rights’ on the basis that racist and sexist attitudes of 18th century England provide the precedent for their ongoing treatment of indigenous people. Some provinces also see any possible responsibility of the Crown in this area is an imposition (one consequence is that thousands of indigenous children have no access to secondary schools). Worse, the details differ from province to province.
    One major problem with the Indian Act is that, as bad as it is, that many indigenous groups see it as their best option; that may even be true given the persistence of racist principles which are residues of colonialism. An underlying problem is that the colonial theology of a superior Anglo-Saxon race and royal supremacy persists and informs Canadian thinking as illustrated by the English-French founding peoples mythology. Another problem is that race has been conflated with parties to contract, a vestige of colonialism so not an accident: the consequence is that resolution of contract issues, i.e. treaty negotiations, becomes very much an issue of race and heredity leading to stupid concepts such as authentic and inauthentic ‘Indians’. The presumed strength of the Indian Act is even more apparent when we consider that many indigenous groups are still trying to establish status under the Indian Act.
    “Reserves were created to control their mobility.” This was the evolution of the reserve concept which developed over time and became a means of alienating Indians from desirable lands – in Ontario there are many examples of bands being moved from one reserve to another multiple times to poorer and poorer locations where successful farmers (and it was a stated goal that Indians become farmers) eventually ended up on the rocks, literally. This notion of fixed location is entirely a construct external to the Indian Act but one that has been further expanded into legal arguments that any movement of place of residence at any time since the late 18th century abrogates native heritage i.e. mobility in addition to race and gender are included as justification for alienation of rights. This is yet another made-up convention which has become an appendage to the Indian Act.
    “Along with mobility, control over individual lives, band governance and reserve lands were all accomplished through the Indian Act” This was accomplished through a formula based on British colonial sexism, paternalism and elitism – the best that can be said is that this at least mimics the general convention of majority rule, however, it has been largely tainted by intrusions of administration and impositions of arbitrary constraints on freedom to operate.
    The author questions whether Canadians in general would accept freedom of indigenous people to exercise control over their own lands (an embarrassingly colonial terminology) but it should be an embarrassment to all of us that this is even an issue. Sadly, the underlying paternalism is a vestige of the British colonial principle of superior and inferior, i.e. capable and less capable, races. The persistent infection of British colonialism with its theology of race (specifically the Anglo-Saxon race), class (especially class privilege), misogyny and religion (i.e. state religion) is an even larger problem. As long as treaties are regarded as arrangements between two races (one superior to the other) rather than contracts between parties and as long as colonial principles are regarded as a fixed frame of reference, we’ll likely not get very far.

  8. All native groups have besides the actual texts of the treaties is the childish claim “we were here first”.

    The fact is that natives never were a single group. They were decentralized marauding raiders of each other who moved around warring to take land and resources as they deemed fit.

    Then when a far more advanced tribe, settlers, showed up the process simply continued with various distinct tribes making treaties in their own interests.

    Do today’s natives want civilization or not. If so get with the program and participate in Canadian democracy like everyone else.

    If not, leave your ATVs, big screen TVs, modern medicine and firearms and take a long walk deep into the woods and don’t look back.

    The Indian Act was never intended to establish natives as a competing Monarchy in Canada.

    • Have to admit — I’ve never thought of your comment in that context.

  9. Interesting read – any thoughts?
    Disappointed the author didn’t have clear alternative suggestion for removing it. From what I learned in Shaun Loneys teachings – if we remove the Indian act without something to replace it, in the vacuum of what was, something else will fill the void – ideally a series of social enterprises focused on removing those barriers to food, water, skills and sovereignty would be set in place instead.
    This requires governments to focus their All contract work agreements to be made with Only those companies which operate with a social enterprise or social responsibility focus – excluding the for-profit capitalist sector which has dominated thus far.
    If a company doesn’t create jobs and build skills for Aboriginal/Metis people they shall not be permitted to bid on government work contracts – from roads,to building hospitals, to maintaining government housing – all must act from a social enterprise standpoint
    Then we can scrap the indian act because it will no longer be relevant to control First Nations from womb to tomb…