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OTTAWA — It’s one of the most important laws in Canada’s history, it’s widely loathed by the people it affects — and most Canadians know little about it.
The Indian Act, which dates from 1876, gives Ottawa sweeping powers over First Nations communities and people, including the authority to decide who qualifies for status and what reserves can and can’t do.
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While the law is heavily criticized by First Nations leaders and people, it also protects reserve lands. Status under the Indian Act entitles people to certain health and social services.
On Monday, during a historic gathering of federal, provincial and First Nations leaders in Ottawa, Manitoba Premier Wab Kinew pitched the idea of abolishing the Indian Act.
Prime Minister Mark Carney said he was “very open to” the idea.
Here’s what you need to know:
What is the Indian Act and what does it do?
The Indian Act is an amalgamation of colonial era laws designed to assimilate First Nations people into mainstream Canadian culture through the eventual erasure of their distinct identities and legal status. It does not apply to Inuit or Métis people.
The law was used to outlaw ceremonial practices in response to pressure from religious missionaries. It served as the foundation of the residential school system that took roughly 150,000 children away from their families.
An early amendment to the law removed the rights of First Nations women who married someone who was not a status Indian.
In 1927, the Indian Act was amended to make it illegal for First Nations people and communities to hire lawyers, and to forbid land claims without government approval.
The law was amended in 1951 to, among other things, eliminate the ban on ceremonies and extend the right to vote in First Nations elections to women. In 1960, the law was changed to give First Nations people the right to vote in federal elections without forfeiting their Indian Act status.
The Indian Act still forbids the sale of reserve lands, making it very difficult for reserve members to secure loans and mortgages.
The law ensures First Nations have access to health and social programs and prevents them from being taxed on-reserve. Some services from Indigenous Services Canada are offered only to those with status under the Indian Act.
Why do people want change?
Premier Kinew, who is Anishinaabe, called for the repeal of the Indian Act during a break in the meeting in Ottawa on Monday.
Kinew, a member of Ojibways of Onigaming First Nation, held up his own First Nations status card and said abolishing the Indian Act should be high on the national political agenda. He said his proposal received an “open-minded reception” from other leaders in the closed-door meeting.
“It’s time to abolish the Indian Act,” Kinew said. “It’s long overdue that we have a relationship with Indigenous Peoples in Canada that reflects who we are as Canadians today.”
Chiefs have long said the Indian Act is restrictive — there’s a popular T-shirt that calls for the law to be burned — but there is little consensus on what should replace it.
There are existing pathways allowing First Nations to opt out of the Indian Act and move toward self-government — 24 such agreements have been signed with more than 40 communities. Crown-Indigenous Relations Canada says 100 active self-government negotiations are taking place across the country.
One of the most controversial aspects of the modern Indian Act is the way it determines status. The vast majority of First Nations agree that the federal government should move to a one-parent rule for passing on status rights.
But Indigenous Services Minister Mandy Gull-Masty has signalled that approach will not be adopted by her government, despite calls from opposition parties in the House of Commons and the Senate for her to do so.
Have prime ministers attempted to abolish it before?
Once, but the effort went nowhere. In 1969, years before he became prime minister, Jean Chrétien introduced what was known as the “White Paper” when he was minister of Indian Affairs in the government of Pierre Trudeau.
The document called for the abolition of the Indian Act, an end to Indian status, the absorption of First Nations people as ordinary Canadian citizens, the termination of treaties and the privatization of reserve lands.
The proposal received widespread pushback from First Nations leaders led in part by Harold Cardinal and the Indian Association of Alberta. They called Chrétien’s plan assimilationist and warned it would lead to the erasure of their cultures.
“I’m sure that we were very naive in some of the statements we made in the paper. We had perhaps the prejudices of small ‘l’ liberals, and white men at that, who thought that equality meant the same law for everybody,” Prime Minister Pierre Trudeau said at the time.
“We have learned in the process that perhaps we were a bit too theoretical, we were a bit too abstract, we were not, as Mr. Cardinal suggests, perhaps pragmatic enough, or understanding enough, and that’s fine.”
What does Carney say?
Carney said Tuesday a review of the Indian Act won’t necessarily lead to its termination; on Monday, he said he was “very open to” that idea.
Carney said the federal government will work with First Nations and the provinces and territories to review the law and suggest possible replacements for it.
“The suggestion of reforming, potentially abolishing and fully modernizing governance, is that a process, co-developed, needs to be put in place, and the federal government is open to that process,” Carney said Monday.
Carney said the idea of abolishing or modernizing the Indian Act was discussed openly in Monday’s meeting and he was “very open to” the proposal.
“Not everybody, but other participants raised the desirability. So it’s already starting from the right place in that it’s not the federal government deciding something should be done. It’s responding to a request,” he said.
Assembly of First Nations National Chief Cindy Woodhouse Nepinak said Tuesday the way forward is up to the chiefs to decide.
“First Nations must be able to determine for themselves how they want to develop their own laws. Because our rights are our rights and this land is our land,” Woodhouse Nepinak said.
