Indian Act

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The Indian Act (French: Loi sur les Indiens) is a Canadian Act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves.^[3][4][a] First passed in 1876 and still in force with amendments, it is the primary document that defines how the Government of Canada interacts with the 614 First Nation bands in Canada and their members. Throughout its long history, the act has been a subject of controversy and has been interpreted in different ways by both Indigenous Canadians and non-Indigenous Canadians. The legislation has been amended many times, including "over five major changes" made in 2002.^[6]

The act is very wide-ranging in scope, covering governance, land use, healthcare, education, and more on Indian reserves. Notably, the original Indian Act defines two elements that affect all Indigenous Canadians:

• It says how reserves and bands can operate. The act sets out rules for governing Indian reserves, defines how bands can be created, and defines the powers of "band councils". Bands do not have to have reserve lands to operate under the act.^[7]
• It defines who is, and who is not, recognized as an "Indian"; that is, who has Indian status. The act defines types of Indian persons who are not recognized as "registered" or "status" Indians, who are therefore denied membership in bands.^[7] In mixed marriage (between someone with Indian status and someone without it), the status of each partner and their children resolved on patrilineal terms. From a postmodern perspective, the act is now viewed as having historically discriminated against women, their claim to status and being registered under the same terms as men. For example, women marrying a non-Indian lost their Indian status, but men who married non-Indians did not lose Indian status. (This was amended in the late 20th century.)

The act was passed because the Crown relates differently to First Nations (historically called "Indians") than to other ethnic groups because of their previous history on the land. When Canada confederated in 1867 the new state inherited legal responsibilities from the colonial periods under France and Great Britain, most notably the Royal Proclamation of 1763 which made it illegal for British subjects to buy land directly from Indian nations, because only the Crown could add land to the British Empire from other sovereign nations through treaties. This led to early treaties between Britain and nations the British still recognized as sovereign, like the "Peace and Friendship Treaties" with the Mi'kmaq and the Upper Canada treaties. During the negotiations around Canadian Confederation, the framers of Canada's constitution wanted the new federal government to inherit Britain's former role in treaty-making and land acquisition, and specifically assigned responsibility for "Indians and lands reserved for Indians" to the federal government (rather than the provinces), by the terms of Section 91(24) of the Constitution Act, 1867. The Indian Act replaced any laws on the topic passed by a local legislature before a province joined Canadian Confederation, creating a definitive national policy.

The act is not a treaty; it is Canada's legal response to the treaties. The act's unilateral nature was imposed on Indigenous peoples after passage by the Canadian government, in contrast to the treaties, which were negotiated. This aspect was resented and resisted by many Indigenous peoples in Canada.

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