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History Of The Indian Act (Part One)

SASKATCHEWAN INDIAN      MARCH 1978      v08 n03 p04  
There has been a considerable array of Canadian legislation about Indians in Canada since the 18th century to today. During this time, however, government policy has shown little variation from its original position of assimilation for Indian people into white, society at the earliest possible time. When Indians first came in contact with Europeans the Indians friendship was actively pursued only for the purpose of securing alliances for times of war. In fact, up to 1830, Indians were administered by a British Indian Department which was a branch of the Military. In 1844 this direction for the Administration of Indian Affairs was transferred to the Province of Canada and away from the imperial authorities in England.

Two statutes were passed in 1850, the fist being An Act for the Better Protection of the Lands and Property of Indians in Lower Canada. By this was established a commissioner to hold the Indians lands in trust for Indian people but with full power to do what he wished with that property. The next Act was An Act where the Better Protection of Indians in Upper Canada imposition, the property occupied or enjoyed by them from trespass and injury. By this no one could deal with Indian lands unless the Crown approved. The Act also gave exemption to Indians from taxation, judgement and seizure as well as prevent the sale of liquor to Indians. At this point in time the Government's main concern was to protect the Indians and their lands from abuse only until such time as they became "civil- or assimilated".

The 1857 Civilization of Indian Tribes Act expressly made assimilation its goal. It was declared that Indians who were "sufficiency advanced education wise or capable of managing their own affairs" would be enfranchised.

The Management of Indian Lands and Property Act declared the Commissioner of Crown Lands to be the Chief Superintendent of Indian Affairs. He had power to dispose of lands reserved for the Indians which they had released or surrendered. Indian Affairs Administration was transferred from the Commissioner in 1867 to the Secretary of State. The Department of the Secretary of State Act of 1868 appointed the Secretary of State be the Superintendent General of Indian Affairs, who had the power for the control and management of the lands and property of Indians in Canada. At this stage there was still no powers of management or self-government given to the Indians. It is interesting to note that the form of the modern Indian Act can be traced to the Department of Secretary of State Act and the latter statute an Act for the Gradual Enfranchisement of Indians and the Better Management of Indian Affairs. The latter statute introduced the concept of local Government to the reserves. The form prescribed then remains unchanged.

The 1870's were busy years for the Federal Government because they were heavily involved in the making of treaties with Indians as well as in the formation of British Columbia and Manitoba into provinces. Too many Acts were too cumbersome. The 1876 Indian Act attempted to consolidate all existing legislation. However, the theme throughout the new Act remained that of assimilation and civilizing of the Indians.

The Indian Advancement Act of 1884 tried to give wider powers over local government and the raising of money. Yet it took away the same powers by appointing the local Indian Agent as chairman of the Council.

Throughout the hundred years after the 1876 Indian Act legal authority over the management and control of Indian lands and property has remained vested with the superintendent general of Indian Affairs. The "assimilation and civilizing process" was in fact increased with the explicit purpose of destroying Indian culture. This was particularly evident after the 1885 Riel Rebellion. Amendments were made to the Indian Act which barred the incitement of riots among Indians and half-breeds as well of the sale of ammunition or ball cartridges to them. It declared the Indian celebration known as the Potlatch and various traditional dances and customs as illegal. Laws were made which compelled people to stay in industrial or boarding schools until they were 18 years of age. In addition, in 1920 people, who were considered "fit", were automatically enfranchised.

Until the Depression, the Federal Government continually Interfered in the lives of Indian people by a steady flow of amendments to the Indian Act. However, after the Depression the number of amendments significantly decreased in numbers.

In 1947 to 1948, the Joint Committee of the Senate House of Commons commented on the unsuccessful government policy of assimilation. In that regard they declared that all the sections of the Indian Act should be used either "repealed or amended", to assist Indians in "the gradual transition . . from wardship to citizenship and to help them to advance themselves". Accordingly the new Act of 1951 increased the application of provincial laws to Indians through the introduction of section 87 (now 88). Of course, it was still clear that Federal Laws would override provincial laws. Even though government control and cultural prohibitions were removed nevertheless policy of citizenship and assimilation remained. Therefore, the new Act of 1951 did little to increase the concept of Indian government and self determination on reserves.

In 1961 a Second Joint Committee of the Senate and House of Commons reported that "the government should direct more authority and responsibility to band councils and individual Indians with a consequent limit-

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History Of The Indian Act (Part One)

SASKATCHEWAN INDIAN      MARCH 1978      v08 n03 p05  
[CONTINUED FROM LAST PAGE]

ation of ministerial authority and control, and that the Indians should be encouraged to accept and exercise such authority and responsibility ". They went on to say that "...full acceptance of the responsibilities and obligations of citizenship must be without prejudice to the retention of cultural historical, and other economic benefits which they have inherited". Unfortunately the Act was not changed; in fact recommendations were made urging the transfer of education and social services to the provinces plus the imposition of taxes on Indians off the reserve.

The 1966 Hawthorn Committee reported

"(1) Integration or assimilation are not objectives which anyone else can properly hold for the Indian. The efforts of the Indian Affairs Branch should be concentrated on a series of specific middle range objectives, such as increasing their real income, and adding to their life expectancy.

(7) Indians should be regarded as "citizens plus'; in addition to the normal rights and, duties of citizenship, Indians possess certain additional rights as charter members of the Canadian community."

However, specific recommendations were for the pouring of huge sums of money for economic development with an emphasis on industrial work off the reserve and the transfer of responsibility for Indians to the provinces. As well Indian local government was to be encouraged to develop within the provincial municipal framework.

During the summer of 1968 several consultation meetings were held between the Federal Government and Indian Leaders. This all culminated in 1969 with the Federal Government's Statement of Policy presented to parliament which declared total assimilation to be the goal within a short period of time. Indian Affairs was to be abolished. Special Indian legislation was to be repealed. Treaties and Land claims were to be considered insignificant. The provinces would evidentially provide all the services. The primary theme of the Statement of Policy was that the Federal Government would relinquish her responsibility for Indians and transfer it over to the Provinces.

The Red Paper of 1970 prepared by the Indian Chiefs of Alberta condemned the 1969 policy and described it as: "A scheme whereby within a generation or shortly after the proposed Indian Lands Act expires, our people would be left with no land; and consequently the future generation would be condemned to the despair and ugly spectre of urban poverty in ghettos."

They recommended that the Indian Act should be reviewed by Indian people but should not be repealed. They further recommended that the treaties should be entrenched as part of the British North America Act. The Red Paper went on to say "the only way to maintain our culture is for us to remain as Indians. To preserve our culture it is necessary to preserve our status, rights, lands and traditions. Our treaties are the bases of our rights."

It is only until the last three years that the Federal Government has reluctantly recognized the fact that Indian people must have a significant input into how the Indian Act will be changed. A Joint Cabinet and National Indian Brotherhood Committee has been established to carry on discussions and dialogue. As well provincial organizations have been given time and money to meet with reserves to determine the best way to amend the Indian Act to suit the future needs of Indians.