INDIAN ACT

Created in 1876, the Indian Act is administered by the Minister of Indian Affairs and Northern Development.

It defines who qualifies for status and puts reserve property and the people who live there under the control of the Minister and federal government officials.

In fact, the Act states that title to reserves belongs to the Crown and forbids the “surrender” and sale or use of reserve land by a First Nations person or Band to anyone other than the crown.

The Act also outlines certain legal rights for registered Indians which cannot be challenged under the Canadian Constitution.

Before 1985, First Nations people could lose status in a variety of ways, including:

marrying a man who was not a Status Indian "Indian enfranchisement in Canada"
enfranchisement (until 1960, an Indian could vote in federal elections only by renouncing Indian status)
having a mother and paternal grandmother who did not have status before marriage (these people lost status at 21)
being born out of wedlock to a mother with status and a father without.

The Indian Act was amended in 1985 (Bill C-31) to restore status to people who had lost it in one of these ways, and to their children. The population of Status Indians has since climbed dramatically.

Federal funding has not fully taken these demographic changes into consideration. The land base on reserves – often of poor quality and insufficient to meet the needs of the population even prior to 1985 – has not changed. Furthermore, 56 per cent of reserves are located in remote or rural areas, contributing to high unemployment. As a result conditions on many reserves are well below those enjoyed by most Canadians. Overcrowding, poor infrastructure, inadequate social programs and services are directly related to the underfunding and historical neglect of First Nations people.

The Indian Act does provide protection for treaty rights from the negative effects of Provincial laws. Section 88 of the Indian Act allows provincial law to apply to aboriginal people and their rights in certain circumstances but specifically protects treaty rights by making those provincial laws subject to treaty rights. This principle applies to the Douglas Treaties, as the Supreme Court of Canada held in R. v. White and Bob and more recently in R. v. Morris.

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