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Interpreting The Indian Act

SASKATCHEWAN INDIAN      MAY 1973      INDIAN ACT SUPPLEMENT p06  

The Registrar

In Ottawa sits a fellow called the "Registrar". It is his job to maintain a list of names of people entitled to be registered as Indians. It is that group (registered Indians) who are subject to the provisions of the Indian Act.

The criteria for eligibility as a registered Indian are set out in the Act. First remember, however, that some people entitled to be registered are not members of a band. Accordingly, the registrar keeps "up-to-date" not one but two lists.

One, titled "Band List", contains the names of those entitled to be registered and who are members of a band. All others entitled to be registered have their names listed on the "General List".

The Registrar may, following the rules as set down for him in the Indian Act, add names to those lists or delete names from those lists. He is the fellow who first decides if a native person is entitled, or not entitled, to be registered.

If he decides to add a name to a list he must indicate on the list the date at which the name was added. If he takes a name from the list he must indicate on the list the date when the name was deleted.

It is relevant to remember that a "major" revision of the Indian Act occurred in 1951. Various changes were made to be effective on September the 4th, of 1951. One result of that revision was to the effect that the band lists as they existed on that date became the Indian Register.

These lists were, on that date, posted in the Superintendent's office (Regional Supervisor's office) that served the particular band in question. They were also posted in band administration offices and in other conspicuous places.

Within six months after that list was posted as described above the council of the band, or any ten electors of the band, or the person whose name was included on the list or allegedly omitted from the list in error, could write to the registrar protesting inclusion or omission of a name from the list. It is important to note that such a protest with respect to the band list had to be sent to the registrar before March 4th, of 1951. It is too late today to protest the inclusion of a name which went on to that list in 1951, and which has not yet been removed.

Should the registrar add a name to the band list today, or should he delete today a name from that list, then the council of the band, any ten electors of the band, or the person whose name is added or deleted, may protest that addition or deletion by writing to the registrar within three months after the name is added of deleted.

If the name in question is added to or deleted from the general list, then any person whose name is on the general list may so protest.

In all cases the person "protesting" the case must prove his case, I.E., establish that grounds exist which merit investigation.

When a protest is made the registrar causes an investigation to be made of the matter. He makes a decision on the protest and that decision is described as final and conclusive subject to a reference under sub-section 3 of section 9 of the Indian Act.


Interpreting The Indian Act

SASKATCHEWAN INDIAN      MAY 1973      INDIAN ACT SUPPLEMENT p07  
The information on this and the following pages was prepared for the F.S.I. by lawyers retained by the Rights and Treaty Research Division. They are Bruce Fotheringham in Prince Albert, D. Ilnicki and Lew Lockhart in Regina.

That section provides that within three months after the registrar's decision the band council or the person about whom the protest was made may in writing request the registrar to refer his decision to a judge for review. The Registrar must then send all of his information to a Judge of the District Court in the area where the band is situated or to such a court in the area where resides the person about who protest is made, or as the Minister may designate.

The district court Judge then inquires into the correctness of the registrar's decision and he decides whether the person in question is entitled or not entitled to be registered. This Judge's decision is final and conclusive.

It is interesting to note that the Indian Act gives the District Court Judge all the powers of the Commissioner under part I of the Inquiries Act. This means that he can summon witnesses and require them to give testimony under oath. He can also require them to produce any documents which he thinks he needs in order to arrive at a decision.

If the witness does not appear to a subpoena or a summons to give evidence he can be found by the District Court Judge to be in contempt and sentenced to a term of imprisonment.

We leave now the discussion respecting protests, and band and general lists et cetera, and move on to a discussion on who may and who may not be entitled to be registered.


Entitlement

First note that when the name of a male person is added to or deleted from the list so must the names of his wife and minor children be added or deleted from that list.

The question which has arisen asks who may become registered as an Indian. This problem may best be approached by first describing those native persons who may not be registered.

To that end recall that any native person commonly referred to as an Eskimo is excluded from the provisions of the Indian Act. Further, any native person who has received half-breed lands or monies script, or their descendant, may not be registered. The Act states that this provision does not apply to persons registered as an Indian on the 13th of August, 1958, or to descendants of persons who were registered as an Indian on the 13th day of August, 1958.

This provision is meaningful from an historical point of view. The cause of the Riel Rebellion was of course unrest by Metis persons who demanded that they held claim to certain areas of land. White settlement was coming and they were losing their land. In 1869 there was open rebellion to enfore these claims, and troops were used to dispel the rebellion.

The Federal government later realized the "justice" of the Metis claim with the result that script was issued. A fellow by the name of J.A. McKenna toured the North West Territories and script was given, I.E., a document was given to Metis in which the government promised, usually $140.00 or 140 acres of land to settle the Metis land claim. The script was transferrable.

The script was given to non-treaty Indians and Metis, but for reasons of ignorance or greed some Treaty Indians also took script. To do so all he needed was one witness to say that they were non-treaty. After taking script that Treaty Indian returned to his reserve where he and his family lived, for example, for fifty years.

Many cases of this event were discovered by various Indian Agents with the result ion a directive from Ottawa that the Indians could "get back into Treaty" if they repaid the $140.00. So many Indians with the consent of Indian Affairs Branch returned to Treaty.

Then provision was made to the effect that the descendants of those people could not be registered and therefore could be removed from the reserve. The remedy for the problems which that caused was further legislation stating that a person or his descendant who had taken script but had "gone back into Treaty" and was therefore registered as an Indian on August 13th, of 1958, was entitled to be registered. This is the explanation given for Section 12 (4) (A and B).

It is clear that a person who has enfranchised is not entitled to be registered. Furthermore, a woman who marries a non-status Indian is not entitled to be registered unless she subsequently marries a person who is entitled to be registered. (Lavelle may change this).

Turning now to a description of those native persons who are entitled to be registered, we find that if an Indian is not a person precluded from registration as described above then he may be registered if:

(1) if he is a member of a band or whose use a reserve has been set aside (or has been agreed to be set apart) pursuant to a Treaty.

(2) if he, on May the 26th of 1874, was considered to be entitled to use land set aside or belonging to a band of Indians in Canada.

(3) if he is a male person who is a direct descendant in a male line of a person described in (1) or (2) above.

(4) or if he is the legitimate child of a male person described in ( 1) or (2) above or (3) above.

(5) or if he were born after the 13th day of August, 1956 and was the illegitimate child of a female person described in ( 1) or (2) or (4) above or

(6) if she is the wife or widow of any of these ( 1) to (5) persons.

Transfer from band to band: if the Minister (Chretien) approves and the "admitting" band council approves, a member of one band may be admitted into membership of another band. In exceptional cases (if the Minister so directs) approval is necessary from three groups. His approval is necessary, the band council's approval is necessary and the band's consent is necessary.

The British North America Act

"If an individual possesses sufficient racial and social characteristics to be termed a "Native person", " he will also be considered "an Indian" within the meaning of the British North America Act. This means he is within the legislative jurisdiction of the federal government, irrespective of the fact that the same individual may be excluded from coverage of the Indian Act.

"Since, by definition, Aboriginal and treaty rights inure to individuals by virtue of the fact that they are native people, the mere fact that an individual native person is excluded from the Indian Act does not affect his native rights. In other words, native rights are derived from one's racial and cultural origins rather than from the provisions of the Indian Act. This is not to say that Parliament could not, if it so chooses, regulate, deny or expand native rights. The limitations on treaty payments to enfranchised Indians and the violations of expressed treaty promises by the federal government, are examples of the supremacy of Parliament in this area of law."

Quoted from "Indian Rights in Canada", a paper prepared by the Indian and Eskimo Association of Canada.


Interpreting The Indian Act

SASKATCHEWAN INDIAN      MAY 1973      INDIAN ACT SUPPLEMENT p08  
What happens if an Indian has made permanent improvements and is then lawfully removed from reserve lands? The Minister may direct that he be compensated by the person who then goes into possession or from the band funds.

An Indian, in lawful possession of land in a reserve, may transfer his right of possession to the band or a member of the band if the Minister approves.

Where an Indian is no longer entitled to reside on a reserve, he may transfer to the band or a band member his right of possession within six months. (The Minister may extend the time). If he does not dispose of his land, it reverts to the band but he is entitled to compensation for improvements at the Minister's discretion.

Section 28 states that any oral or written agreement by which a band member attempts to reside on, occupy, use, or otherwise exercise rights on a reserve, is of no legal effect. However, the Minister may allow any person to exercise these rights for a period of one year. The consent of the band is needed if it is for a longer period than one year.

The Reserve land cannot be seized (I.E. repossession, foreclosed).


Trespass Law

FACTS: (Someone) not a member of the Band had been living with his friend Bill, a Band member for almost a year. The Band Council has decided that it is not in the Bands interest that George should remain on the reserve.

ISSUE: How may the Band Council remove him?

OPINION: Section 81 of the Indian Act states that the Band Council may make bylaws for the purpose of removing persons trespassing on the reserve or frequenting the reserve for prescribed (forbidden) purposes. Section 28 forbids a person not a member of the Band to occupy, reside on or use a reserve, or otherwise exercise any rights on a reserve, without the permission of the Minister and/or Band Council.

ISSUE: Can a municipal policeman or R.C.M.P. (any peace officer) effect service of a summons on a reserve without committing trespass on such under Section 30?

OPINION: Yes.

REASON: The case of R.V. Williams (1958) is interesting and relevant. That case arose because a municipal policeman followed a car which had been driving at excessive speed on a highway off the reserve, onto a reserve. The driver (the Chief of that reserve) fled from his car into his house. It is noted that the issue, (i.e.), a right of police officers other than R.C.M.P. to go on the Indian Reserve in question in the execution of his duty, has been a matter of tension for some time between the police and Indians of various reserves.

The court noted that members of all police forces are charged with the duty of preserving the peace, preventing robberies and other crimes and offences, including offences against the bylaws of the municipality, and apprehending offenders, and laying information before the proper tribunal, and prosecuting and aiding in the prosecution of the offenders. Accordingly, the court decided that the constable in this case had authority in law to follow the accused onto the reserve as he did and to demand the production of his licence. That is the right the constable would have under similar circumstances with reference to private property generally.

A police officer was acting in the course of his duty, there had been no inconsistency with the rights conferred on Indians by any Federal Act or any Treaty, and therefore the constable was not a trespasser on the reserve.

Are Collectors, Baliffs or Sherrifs - going onto the reserve for collection purposes, trespassing on that reserve?

Section 88 of the Indian Act only authorizes a collector or baliff or sheriff to enter upon a reserve for collection purposes where a band or a member of a band is in default under an Agreement for Sale or other circumstances under which title or possession of the property being purchased remains in the vendor until the full purchase price for the article is paid. This is so because Section 89 (2) states that such a vender may exercise his rights under the agreement notwithstanding that the chattel is situated on a reserve.

Section 89 also states that all property of an Indian situated on a reserve is not subject to any attachment, seizure, distress or execution in favor or at the instance of any person other than an Indian. Accordingly, a sheriff does not have the authority to enter on a reserve under a Writ of Execution, which is a document used for collection purposes after a judgement is obtained from a court.

Lavell Case

In December 1970 the name of an Indian woman, Mrs. Jeanette Cordiere Lavell, was taken from her band list by the Registrar because she had married a white man.

Mrs. Lavell appealed the Registrar's decision through a number of courts charging that the section of the Indian Act that resulted in her being struck from the band list, discriminated against her because of sex, contrary to the Canadian Bill of Rights which was passed in 1960.

The case is currently being decided by the Supreme Court of Canada but most observers feel that the decision will favor Mrs. Lavell and that sections of the Indian Act will therefore become inoperative by reason of the Bill of Rights.

No longer would an Indian woman marrying a non-Indian man lose her status as an Indian. This would mean an increase in the number of Indians entitled to be registered. It would also mean that a greater number of people would be entitled to share band funds, reside on the reserve and own property on the reserve.

Also under the present Indian Act a non-Indian woman who marries an Indian man becomes entitled to be registered as an Indian. The status of such a woman is in danger if the Supreme Court upholds the decision in the Lavell case.

If the husband of an Indian woman is not considered to be an Indian, it will be argued that it is discriminatory for a non-Indian woman to be considered an Indian upon her marriage.

The status of the children would also be in jeopardy. The same argument of discrimination could also be made. Thus, a child with a non-Indian father and an Indian mother is treated differently from a child with a non-Indian mother and an Indian father.

If the Supreme Court of Canada decides in favor of Mrs. Lavell, the definition of Indian Status will be a confused issue unless changes are made to the Indian Act.


"If the Lavell decision is upheld, there would thus be many gaps in the Indian Act and many persons with Indian blood whose status would be questionable. These problems could not be solved without further amending the Indian Act. It thus becomes more necessary than ever for the Indian people to make known their views as to who should be an Indian. Amendments can then be made, if Parliament agrees, which would apply irrespective of the Bill of Rights."

Quoted from a paper prepared by Monique Caron, a Montreal lawyer.