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"It seems well established that Parliament has the power to breach Indian treaties if it so wills and in fact has done so."
Quoted from "Wither The Indian" by James A. O'Reilley, a paper prepared for the Civil Liberties Section of the Canadian Bar Association in 1969.
Presumably this means that the Minister has no jurisdiction over the property of a deceased Indian if he or she does not ordinarily reside on a reserve and in such cases the Provincial laws in existence would apply.
There has been a recent case dealing with this issue, where the Manitoba Court of Appeal held that although the deceased was ordinarily resident on the reserve, the Indian Act is inoperative because it is "in violation of the Bill of Rights guaranteeing the right to equality before the law without discrimination by race."
Section 45 of the Indian Act states that an Indian can make a will but does go on to say that no will made by an Indian has any legal force or effect unless the Minister in charge of Indian Affairs has approved it. The Minister can say that a Will has no legal effect on six different grounds:
(a) the deceased was forced to sign the Will, I.E. it was not voluntary
(b) the testator did not have capacity, that is, he or she was under 21 or mentally incompetent
(c) the Will does not adequately provide for his next-of-kin
(d) the Will would dispose of reserve land contrary to the Act or the interests of the Band (e.g. leave reserve land to someone not entitled to reside on that reserve)
(e) the terms of the Will are impossible to carry out
(f) the terms of the Will are against the public interest
If the Minister approves the Will, the property passes according to the terms of the Will and the Minister may appoint an executor (someone to look after the estate, pay the debts and transfer the property).
Here we are dealing with the estate of a deceased Indian who dies without having made a will or, if one was made the Minister has said it has no legal effect. The Act sets up certain criteria to determine who will benefit from the estate assets or to whom they will pass.
If the net value of the estate (the amount remaining after all the deceased debts are paid) is valued, by the Minister again, at less than $2,000.00 the entire assets go to the widow. If the net value of the estate is greater than $2,000.00, but the deceased left no children, the widow is still entitled to the entire estate.
However, if the deceased left one child, the first $2,000.00 plus 1/2 of the remainder goes to the widow, and 1/2 of the remainder goes to the child.
If the deceased left more than one child, the widow is entitled to the first $2,000.00 plus 1/3 of the remaining assets. The remaining 2/3 of the assets would be divided equally among the children.
If the child has died before the deceased, but leaves living children, the widow still gets the same share of the estate because the deceased child's share goes to his or her children.
According to Provincial laws the widow is entitled to the first $10,000.00. It has been suggested that the amount an Indian widow gets is not adequate and should be increased.
If the Minister decides that any children of the deceased
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Any interest in reserve land shall go back to the band if the next-of-kin of the deceased are further removed than a brother or sister. No person shall be in lawful possession of a deceased's land unless approval is obtained from the Minister. A person cannot get lawful possession of reserve land if he is not entitled to reside on that reserve. In cases like this, the interest in the property shall be sold - and the money paid to the beneficiary.
If no bids are received within six months, the band shall receive the right of possession and the beneficiary will be paid, from the band funds, an amount for improvements which is decided by the Minister. The beneficiary then has no other legal claim on the property.
For example: If a daughter marries outside the band, she is considered to be a member of her husband's band and thus is not entitled to reside on her own reserve. When an Indian dies leaving no widow or children the estate is divided equally between his parents. If one parent is dead, the estate goes to the surviving parent. If the parents are also dead, the estate is divided equally among the brothers and sisters. Here again, if a brother or sister has died before the deceased his or her children receive their share of the estate. If the only next-of-kin are children of deceased brothers and sisters they share equally.
When dealing with estates the same rules apply to deceased Indian women. As well, the term "child" includes an adopted child, whether it be legal or through Indian custom.
Beneficiaries conceived before the death of the deceased but born after his death, shall share in the estate as if they had been born in his lifetime.
Illegitimate children and their children are to be treated as legitimate and share in the estate of their mother. If the mother is dead they are entitled to take any real or personal property the mother would have been entitled to, if living.
If the dead person is himself illegitimate, his estate goes to his mother, if he leaves no widow or children. If the mother has died before him, the other children of the mother share equally in the estate. If any children are dead then their share goes to his or her children.
The Minister in charge of Indian Affairs has full authority over the property of mentally incompetent Indians. Among the various powers of the Minister are the following:
(1) He can appoint a person to look after the estate of a mentally incompetent Indian
(2) He may order that property of the mentally incompetent Indian be sold, leased, mortgaged or otherwise dealth with in order to:
(a) pay his debts
(b) pay any debts so that clear title to his property is obtained
(c) pay for his maintenance and necessaries of life
(d) pay for his future needs
(3) He may make any other order which he feels is necessary to properly manage the estate. It should be noted that the authority does not include using the property for the support of family and dependents.
The Minister may also order that any property located off the reserve should be dealt with according to provincial laws rather than the Indian Act.
In deciding whether or not an Indian is mentally incompetent, you must look to the existing provincial laws. The Lunacy Act R.S.S. Chapter 346 provides that a person is mentally incompetent if:
It is proved to the satisfaction of the Court that he is, through mental infirmity, arising from disease, age, or other cause or by reason of habitual drunkeness or the use of drugs, incapble of managing his affairs."
Likewise, the Minister can appoint a guardian to look after property belonging to minor children of Indians. However, no mention is made of the custody of children themselves if their parents happen to die.