Taken from BC AFN Governance Toolkit
For many of our Nations, moving away from federal control has started with using the Indian Act itself. While the Act is obviously not the right tool to implement our inherent right to self-government, there are a number of opportunities to build our governance and our jurisdiction using the Indian Act as a stepping-stone to eventual full self-determination. The first approach is to use the Indian Act for its own removal in particular areas. This can be done for membership codes and for council elections. This approach, though limited, can be viewed as a strategic use of the Indian Act as an interim step to self-government, whether sectoral or comprehensive.
There are advantages and disadvantages to this approach. Firstly, it is not as challenging both politically and legally as a beginning to the process of social change as moving into sectoral or comprehensives governance arrangements. It also does not require as much internal capacity and resources of the Nation. It can also build confidence in the community and among your citizens that change is possible and preferred. In this way, it is a good first step. The disadvantages are that all of the steps that can be taken under the Indian Act are still subject to ministerial approval and therefore uncertainty. This is particularly true if federal policies change or indeed the legislation changes. In all respects, governance under the Indian Act is still subject to INAC’s parameters and is not true self-government.
An important first step in taking back control over one of the most fundamental aspects of Nationhood is in respect of citizenship. The Indian Act has provisions that remove Indian Act “membership” rules if a First Nation develops its own membership code and that code is ratified by its members. Taking advantage of this opportunity, many of our communities have developed their own membership codes (approximately 232 in Canada) and the process to develop a membership code is considered in and Section 3.6 – Citizenship of this Report. While the term membership is used in the Indian Act, our Nations generally prefer to refer to “citizenship” and “citizens” of our Nations. Having a conversation in your community about such terminology is a part of the process all our Nations are going through to deconstruct the Indian Act reality. Developing a membership code under the Indian Act is in this way an incremental step to having a broader discussion on citizenship and what this means and who is entitled to belong to the Nation. This concept is discussed further in Section 2 – Core Institutions of Governance . Throughout this report, unless the context specifically requires otherwise, we will refer to “citizenship” or “citizens” rather than membership or members.
A second way to use the Indian Act for its own removal is in the area of elections. The Indian Act sets out election and election appeal rules. However, these only apply if the Minister makes an order to that effect under section 74 of the Indian Act . INAC’s policy provides that if a First Nation establishes its own election rules and these are ratified in a referendum of its members, the ministerial order under section 74 will be removed and thereafter the First Nation’s elections, election appeals, council procedures and other matters will be determined by the First Nation election code or law and related First Nation laws. In BC, 120 First Nations have done this. This option is discussed in more detail in Section 3.8 – Elections .
In addition, the Indian Act also provides some delegated law-making powers to council. These do not adequately reflect the jurisdiction needed by our Nations and this provision is unacceptable in the long term, given the delegated nature of the authority as well as the requirement that the Minister not disallow a by-law. Nonetheless, these powers are enforceable and are one way to begin exercising decision-making authority on reserve.
Many of our communities are making by-laws under s.81 of the Indian Act, which allows a First Nation to regulate and control certain activities on reserve, such as residency, zoning, trespassing, construction, disorderly conduct and other listed matters. These by-law-making powers and examples of where Nations have used them are discussed in the relevant subject chapters in Section 3 of this Report.
In addition, section 83 of the Indian Act recognizes by-law making power regarding First Nation collection of property taxes. There are currently 50 First Nations in BC that are collecting property tax under s.83 of the Indian Act. This incremental power is addressed in Section 3.29 – Taxation . These communities now raise much needed revenues for local purposes and to support economic development and community enhancement. The Indian Act lists the circumstances under which a First Nation can make s. 83 by-laws and, once again, requires Ministerial review and approval.
Another provision of the Indian Act that recognizes First Nation by-law-making power is section 85, which allows a First Nation to pass by-laws prohibiting sale and manufacture of intoxicants and regulating the possession of intoxicants on reserve. Consent of First Nation’s electors is required, but this is one of the few circumstances where there is no necessity for Ministerial approval. This option is considered in the discussion of intoxicants in Section 3.17 – Intoxicants .
BC First Nations have been leaders in developing governance capacity through by-law development across Canada. Using the Indian Act by-law making powers, 165 of our First Nations in BC have collectively made 2,327 by-laws.
INAC offers training workshops and provides copies of sample by-laws. INAC also reviews by-laws and provides advice to First Nations that are enacting such by-laws. INAC has a repository where by-laws are stored. Where the Indian Act provides for a by-law-making authority in a particular subject matter, this is covered in that chapter in Section 3 addressing that jurisdiction. Links are provided to copies of by-laws that First Nations have developed. In addition, you can contact a First Nation directly or the INAC regional office in Vancouver for copies of First Nations’ by-laws currently in force. At INAC, you should ask to speak to a Band Governance Officer in Lands and Trust Services.
The exercise of authority under these Indian Act provisions, while limited, has helped many of our Nations begin on the path towards self-determination. We can build on the positive examples and best practices and share our experiences. Many of the elements of governance that could be advanced by drawing down powers through the Indian Act could eventually find their way into a Nation’s Constitution or inform negotiations with Canada when the time comes to implement comprehensive governance arrangements based upon the inherent right.
Finally, when looking at governance under the Indian Act, we need to consider how provincial jurisdiction is incorporated through the operation of section 88 of the Act. Section 88 is a complicated piece of law that basically says that all provincial and federal laws apply unless they deal with a subject matter that is dealt with under the Indian Act or specifically displaced by a regulation made by Canada under the Indian Act or a by-law made by a First Nation. In practice, this can create a number of gaps in the law where the Indian Act does not fully address the subject matter, or if it does so inappropriately, or imports provincial law that our Nations in many cases do not want to apply. At the other end of the extreme, in other cases there may be provincial laws that our Nations do want to apply but do not because of the Indian Act . There are different legal opinions on how s. 88 operates and what it means. From our Nations’ perspective, the bottom line is that we need to consider what powers of governance we require and to find ways to occupy the space and to consider what powers Canada and the province should have. The complexity of the interrelationship between law-making authority and application of laws is considered throughout this report from the perspective of each subject matter under discussion.
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