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Indian Act Revision Is Based On Historical Facts

Ray Sanderson

SASKATCHEWAN INDIAN      JULY 1976      v06 n07 p13  
Following is material taken from previous research done on Indian Rights and the Treaties. It is thought this additional information could assist the Indian at the reserve level in understanding the past and present situation regarding our rights. Further it is anticipate this information will be passed onto all Indians through band meetings, pamphlets, etc., so all Indians become aware of the revision being done to their benefit. Therefore this process will only succeed when all our people have participated and co-operated together in implementing these changes.

What are Indian Rights? - they are derived from our original possession of the North American continent. This historical fact, due recognition, and, efforts being made to understand this respect both by Canadian and British law and policy. These laws after being led through a series of political decisions aimed at respecting the rights of Indian people - with the ever growing demands and needs of the predominant and powerful white society. And this has become the basic theory of our Aboriginal Rights.

IMPORTANT DATES IN HISTORY:

Royal Proclamation of 1763 - affirmed Indian property rights under British sovereignty. This authority has been passed on through Confederation and onto the signing of Treaties. This authority affirmed by British North America Act.

Canadian Bill of Rights 1960 - bill to protect the values of minority group rights. Because the Indian Act sets apart one racial group, it is thereby inherently discriminatory without further consideration, and in conflict with the Bill of Rights. (i.e. Laval Case - "discrimination-of values between an Indian woman and Indian man. This case now before the Supreme Court of Canada").

Migratory Bird Convention Act 1917 - encroaches and supercedes treaties and-aboriginal rights of hunting birds for food. An Indian can only hunt birds for food during hunting season.

  1. White and Bob Case 1964 - confirmed that under Section 88 of the Indian Act. Indian hunting rights when protected by treaty cannot be encroached on by provincial game laws.
  2. Sikyea Case - Migratory Bird Convention Act did infringe and restrict Indian Treaty rights.

How did we begin losing these rights? - due to the arrival and ever expending white population. These have caused changes in our history, morality, pressure for land and certain ideals of political leaders. However, we have survived these changes and now we want compensation and protection of these rights.

Who is an Indian?

Indian Act states: "a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian."

British North America Act (Sec. 91 (24) - The Federal Government is given legislative jurisdiction over Indians and lands reserved for Indians."

The Inuits (Eskimos) are not Indians according to the Indian Act but the Supreme Court of Canada (1954) stated Inuits are Indians under the British North America Act.

Issues like this have to be settled in our new Indian Act and other important issues such as membership, etc., will have to be further discussed at the band level.
Therefore it is safe to assume provincial laws generally fail in attacking treaty and aboriginal rights in hunting and fishing. Federal laws usually succeed in attacking our tights because federal legislation overrides all other laws affecting Indians because of Sec. 91(24) of the British North America Act.

The Bill of Rights vs. Indian Act

Canadian Indians have never sought the protection of the Bill of Rights.

It has become increasingly evident this Bill was geared to basic European values.

An important question here: How could an Act, by its title, dealing with a racial group not offend the Bill of Rights?

Therefore our proposed changes must entrench rights that have been encroached upon. We must include treaty and aboriginal rights in the new Indian Act.

Treaties as guide line - and using the Indian Act as the vehicle for implementing the types of responsibilities that are spelled out for us. We, as Indians, have the obligation and responsibility to maintain the rights promised and guaranteed by the Treaties.

Responsibilities of Chiefs and Band Council:

Again all Chiefs and Councils are encouraged to inform all their members the importance of participating in this revision. All additional information on: (1) taxation, (2) application of Federal/Provincial laws, (3) administration of Indian Act, (4) hunting, fishing trapping, etc. should be forwarded as soon as possible to the Regina Office. All information on the above topic have to be forwarded into National Indian Brotherhood by September 1976. Further consultations at the reserve level will be made by the writer in the next weeks. You Band offices will be contacted and hopefully as man band members will be interviewed as time permits.