We are all Treaty people
The Indian Act is a sweeping piece of legislation that affects all status and many non-status Indians in Canada. While this legislation has defined relations with Indigenous people and the Crown since its first inception, many settlers and descendants of settlers, who elect representatives of the Crown, have no idea that this Act exists or what it says. My aim with rewording the Act into plain language is to help Canadians who have never read the Act understand how the Government of Canada maintains its colonial relationship with Indigenous people.
This was part of my final assignment for a course called Investigations into Culture and the Environment taken Summer 2011 at the University of Saskatchewan.
There are sections that are entirely re-written, some sections omitted that I did not think made sense to include (mostly redundant legal clauses) and some sections that are in the same language as the Act, where the language in and of itself was clear. This is not up-to-date as of 2020 and needs to be updated.
A parliamentary summary of the legislative changes made by the McIvor decision can be read here.
Email me or post comments if you have any ideas on how to improve this!
THE INDIAN ACT
When can you be considered an Indian?
The ‘you have no control over the land any more…we do’ clauses
The ‘just let us know when you want to disband’ clause
The ‘just to prove a point, we’ll maintain control over you when you die’ clauses
The ‘more info on land, in case you didn’t get it before’ clauses
When can you be considered an Indian?
The ‘we’ll also manage how you deal with money’ clauses
The ‘Gov’t of Canada are good farmers’ clauses
The ‘we have lots of power up in here’ clauses
The ‘we’ll even control your elections’ clauses
The ‘sure you can have bylaws…that we approve’ clauses
The ‘only here can we get away with limiting commerce like this’ clauses
The ‘we’ll appoint the judges, thanks’ clause
The ‘remember residential schools? They can still exist…’ clauses
The ‘better get you ready for jail early’ clauses
When can you be considered an Indian?
If you were registered or were eligible to be registered prior to April 17, 1985
If the Governor in Council on or after April 17, 1985 declared that you or your relations are Indians.
If your name was missed from the long list of Indians, or from among your relations before Sept. 4, 1951.
If your mom married a non-Indian and as a result was deleted from the long list of Indians prior to Sept. 4 1951, you’re now eligible.
If your dad is dead or alive, was not eligible to be an Indian and when he died, but should have been eligible but died before Sept. 4 1951.
If you were born on the same day, or after your Indian mom and non-Indian dad (for example) got married, unless it was before April 17, 1985, or you were born before that date.
If you adopted a kid on or before Sept. 4, 1951 and your partner is not eligible to be an Indian on the day your kid was born or adopted, they can now be Indian.
If for a variety of reasons, your name was left off the long list of Indians before Sept. 4 1951.
If your parents are both dead, but should have been considered Indians but were excluded from the long list of Indians due the the sexist way in which the law was written, when they died.
*** These provisions, as amended in 1985, still excluded some people from Indian status, so as a result of the McIvor decision in 2010, more language has been added to the Indian Act to make it clear that anyone who lost their status, and who had died before 1985, should have their status restored. This alters how the law classifies many children and grandchildren of these previously “misclassified” people. A summary of the McIvor decision can be found here.
When can the nation of people you’re affiliated with and have been as far back as anyone can remember become a real nation in the eyes of the Queen of England?
Whenever the Minister of Indian Affairs desires it, he can put two different bands together if the majority of eligible voters vote. If he thinks it’s desirable, he can also constitute new bands and create the list of people for them as well.
The ‘you have no control over the land any more…we do’ clauses
Indian people can only buy land on reserve if the Minister approves it and the band council allots it to him or her.
If a council approves the sale of land to someone, the Minister can refuse to approve the decision, and outline what conditions for use of the land that must be undertaken by the owner before he approves it. He can refuse for up to four years. If after four years he is still unsatisfied that the person has not fulfilled his wishes, the Minister can refuse sale outright.
The Federal Minister of Indian Affairs can authorize a survey of a reserve, divide the entire reserve or a portion of a reserve into lots or subdivisions and decide where roads should be constructed.
If a First Nations person is removed from his lands but where he has made permanent improvements to the lands, the Minister is able to direct compensation be paid out, either from the person who goes into possession of the land after him or from the Band Council.
The Minister must approve all land transfers.
If a First Nations person sells, barters, exchanges, give or otherwise dispose of cattle or other animals, grain or hay, whether wild or cultivated, or root crops or plants or their products from a reserve in Manitoba, Saskatchewan or Alberta, to a person other than a member of that band, the superintendent must approves the transaction in writing. This order can be revoked or reinstated to any band at any time by the Minister. If you violate the above, you’re guilty of an offense.
—repealed in 2014—
Roads, bridges, ditches and fences within the reserve occupied by that band must be maintained in accordance with instructions issued from time to time by the superintendent. This is the responsibility of the Band Council.
If the Minister doesn’t think that a Band Council has done what the superintendant told them to do, the Minister can demand that it be done, and that the expenses must be paid for by the Band Council, or individual member of the band. They can take the money that “are held by the Queen” and owed to a Band Council or person who’s a member of the Band.
If parliament, a provincial government, a municipal government/authority or a corporation is empowered to take lands in a reserve, without the consent of the owner, the Governor in Council can consent and prescribe terms for how this is to happen. If asked to by any government or corporation, the Governor in Council can authorize a transfer or grant of the lands to the province, authority or corporation, subject to any terms that may be prescribed by the Governor in Council, in lieu of the government/authority just taking it without the owner’s consent.
If money is exchanged for this land transfer, then the money must be paid to the Receiver General for the use and benefit of the band or for the use and benefit of any Indian who is entitled to compensation or payment.
The ‘just let us know when you want to disband’ clause
A band can surrender to the Queen, conditionally or unconditionally, all of the rights and interests of the band and its members in all or part of a reserve. Surrender has to be agreed upon by a majority of voters of a band, at a general meeting, at a special general meeting called for this purpose by the Minister, or by referendum. If at a general meeting, the majority of the electors of the band didn’t vote, the Minister can call for another meeting, with 30 days notice. If he thinks it makes sense, the Minister can call for a secret ballot. If a meeting for these purposes is held, it must be held in the presence of an officer of Indian Affairs. The Governor in Council has final say on acceptance or refusal.
The ‘just to prove a point, we’ll maintain control over you when you die’ clauses
All jurisdiction and authority in respect to dead Indians is vested exclusively in the Minister and in accordance with regulations of the Governor in Council. This only counts if the dead Indian was lawfully in ownership of his land. The Minister can appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their place, authorize executors to carry out the terms of the wills of deceased Indians, authorize administrators to administer the property of Indians who die without wills, carry out the terms of wills of deceased Indians and administer the property of Indians who die without wills and make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in the first part.
The Minister can pass a particular case onto a court that would have jurisdiction in the case where the deceased is not an Indian, especially to deal with any question that may arise out of the administration of any estate. All court decisions must have the consent of the Minister, in writing, to be carried out.
Nothing in this Act shall be construed to prevent or prohibit an Indian from devising or bequeathing his property by will. The Minister may accept as a will any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death.
No will executed by an Indian is of any legal force or effect as a disposition of property until the Minister has approved the will or a court has ruled.
The Minister may declare the will of an Indian to be void in whole or in part if he is satisfied that the will was executed under duress or undue influence, the deceased at the time of execution of the will lacked testamentary capacity, the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide, the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act, the terms of the will are so vague, uncertain or capricious that proper administration and equitable distribution of the estate of the deceased would be difficult or impossible to carry out in accordance with this Act or the terms of the will are against the public interest.
Where a will of an Indian is declared by the Minister or by a court to be wholly void, the dead person will be declared to have died without a will, and where the will is so declared to be void in part only, any bequest or devise affected thereby, unless a contrary intention appears in the will, shall be deemed to have lapsed. This decision can be appealed if the amount of money in question is more than $500.
If the net value of the estate of someone without a will in the opinion of the Minister, exceed seventy-five thousand dollars or such other amount as may be fixed by order of the Governor in Council, the estate shall go to the survivor. Where the net value of the estate of someone without a will, in the opinion of the Minister, exceeds $75,000, or such other amount as may be fixed by order of the Governor in Council, $75,000, or such other amount as may be fixed by order of the Governor in Council, shall go to the survivor, the remainder shall go to the survivor if there are no kids. But if the deceased left one child, one-half of the remainder shall go to the survivor, and if the deceased left more than one child, one-third of the remainder shall go to the survivor, and where a child has died leaving issue and that issue is alive at the date of the intestate’s death, the survivor shall take the same share of the estate as if the child had been living at that date.
If the Minister believes that the deceased’s children won’t be adequately provided for, he can order that all or part of the estate that should have gone to the deceased’s partner, go to the children. The Minister can also order that the survivor has the right to occupy lands on reserve that were occupied by the deceased when they died.
If an Indian dies, has no will, and has a child(ren), his estate will be distributed equally to each of the children, subject to the rights of the survivor. If he/she dies and has no survivor or issue, then the estate will be divided equally to parents, if alive, or to one parent if one is dead. If they had no parents, the estate will be divided equally among brothers and sisters. If any of these are dead too, than their children will get their part.
If an Indian dies without a will, leaving no survivor, issue, father, mother, brother or sister, and no children of any deceased brother or sister, his estate shall go to his next-of-kin and distributed equally among the next-of-kin of equal degree of consanguinity to the intestate and those who legally represent them, but in no case shall representation be admitted after brothers’ and sisters’ children, and any interest in land in a reserve shall vest in The Queen for the benefit of the band if the nearest of kin of the intestate is more remote than a brother or sister.
But, degrees of kindred shall be computed by counting upward from the deceased to the nearest common ancestor and then downward to the relative, and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree.
If someone claims entitlement through this process, they will not become in lawful possession or occupation of the land until it’s approved by the Minister.
A person who is not entitled to live on reserve cannot acquire a right through this process to possession or occupation of the land on the reserve. If someone accesses land through this process who is unentitled, the ownership will be put for sale by the superintendent to the highest bidder among the persons entitled to reside on the reserve. Money from this transaction will be given to the person who was not allowed to access that land.
If lands are unsold, within six months or a period of time established by the Minister, he may direct the right to possession or occupation to be reverted to the band. The Minister will direct compensation to the person from Band funds.
The Minister must approve all transfers of land and transactions.
The ‘in case this wasn’t offensive enough, now we’re talking about mentally incompetent Indians’ clauses
As it relates to the section on Mentally Incompetent Indians, all jurisdiction and authority are rested with the Minister.
The Minister may appoint persons to administer the estates of Mentally Incompetent Indians, order that the property of Mentally Incompetent Indians can be sold, leased, alienated, mortgaged, disposed or otherwise dealt with for the purpose of paying debts, discharging with responsibility on his property paying debts or expenses of future maintenance and other orders that are necessary to secure the satisfactory management of the estates of Mentally Incompetent Indians.
The ‘we’ll take good care of your infants’ clauses
The Minister may administer or provide for the administration of any property to which infant children of Indians are entitled, and may appoint guardians for that purpose.
The council of a band may determine that the payment of not more than three thousand dollars, or such other amount as may be fixed by order of the Governor in Council that belongs to an infant child who is a member of the band is necessary or proper for the maintenance, advancement or other benefit of the child. Before making such a determination the council of the band must post in a conspicuous place on the reserve fourteen days before the determination is made a notice that it proposes to make such a determination and give the members of the band a reasonable opportunity to be heard at a general meeting of the band held before the determination is made
Regardless of if this process pays money out, the Minister may pay part or any money that belongs to an infant child of an Indian to a parent or person in custody, if the Minister is requested in writing and if the Minister believes that it is in the best interest for the infant.
The ‘more info on land, in case you didn’t get it before’ clauses
The Minister or his designate can, with any surrendered land or designation, manage or sell the lands, manage, lease or carry out other transactions.
No one who is an officer or servant of the Queen, employed by the Department may acquire land either directly or indirectly, unless it’s approved by the Governor in Council.
The Governor in Council may allow the Minister to grant licenses to cut timber on surrendered lands, or, with the consent of the council of the band, on reserve lands, imposing terms, conditions and restrictions with respect to the exercise of rights conferred by licensees granted, providing for the disposition of surrendered mines and minerals underlying lands in a reserve, prescribing the punishment, not exceeding one hundred dollars or imprisonment for a term not exceeding three months or both, that may be imposed on summary conviction for contravention of any regulation made under this section; and providing for the seizure and forfeiture of any timber or minerals taken in contravention of any regulation made under this section.
The Minister may with the consent of the Band Council improve or cultivate that land and employ persons, and authorize and direct the expenditure of such amount of the capital funds of the band as he considers necessary for that improvement or cultivation including the purchase of such stock, machinery or material or for the employment of such labour as the Minister considers necessary.
If someone possesses the land, the Minister may, with the consent of the Band Council, grant a lease of that land for agricultural or grazing purposes or for any purpose that is for the benefit of the person in possession of the land. If the land isn’t owned by anyone, the Minister can give a lease to the band for agricultural or grazing purposes.
Reasonable rent should be paid to the individual who possesses the land and the remaining money should be placed into the credit of the band. Rent can be deducted to the individual if improvements are made to the land.
Without an absolute surrender or a designation of lands, the Minister can dispose of wild grass or dead or fallen timber.
He can also, with the consent of the council of the band, dispose of sand, gravel, clay and other non-metallic substances on or under lands in a reserve, or, where that consent cannot be obtained without undue difficulty or delay, may issue temporary permits for the taking of sand, gravel, clay and other non-metallic substances on or under lands in a reserve, renewable only with the consent of the council of the band.
If any money is made from the above activities, the funds shall be divided among the band, and the Indians in position of the land, in shares determined by the Minister.
With the consent of a Band Council, the Minister may reduce or adjust the amounts owed to The Queen or to the amount payable to the band by an Indian, on transactions affecting surrendered, designated or other lands on reserve.
The Governor in Council may extend the right to a band, control and management over lands in the reserve occupied by the band. The Governor in Council may withdraw this right at any time too.
The ‘we’ll also manage how you deal with money’ clauses
Indian moneys can only be spent on the benefit of the Indians or the bands that the money has been held for (subject to this Act and treaties/surrenders) and this is subject to the decision of the Governor in Council.
With the consent of the Band Council, the Minister may authorize and direct the expenditure of capital moneys of the band
(a) to distribute per capita to the members of the band an amount not exceeding fifty per cent of the capital moneys of the band derived from the sale of surrendered lands;
(b) to construct and maintain roads, bridges, ditches and watercourses on reserves or on surrendered lands;
(c) to construct and maintain outer boundary fences on reserves;
(d) to purchase land for use by the band as a reserve or as an addition to a reserve;
(e) to purchase for the band the interest of a member of the band in lands on a reserve;
(f) to purchase livestock and farm implements, farm equipment or machinery for the band;
(g) to construct and maintain on or in connection with a reserve such permanent improvements or works as in the opinion of the Minister will be of permanent value to the band or will constitute a capital investment;
(h) to make to members of the band, for the purpose of promoting the welfare of the band, loans not exceeding one-half of the total value of:
- (i) the chattels owned by the borrower, and
- (ii) the land with respect to which he holds or is eligible to receive a Certificate of Possession, and may charge interest and take security therefor;
(i) to meet expenses necessarily incidental to the management of lands on a reserve, surrendered lands and any band property;
(j) to construct houses for members of the band, to make loans to members of the band for building purposes with or without security and to provide for the guarantee of loans made to members of the band for building purposes; and
(k) for any other purpose that in the opinion of the Minister is for the benefit of the band.
The Minister can direct that revenue moneys of the band be paid to assist sick, disabled, aged or destitute Indians of the band, to provide for the burial of deceased indigent members of the band and to provide for the payment of contributions under the Employment Insurance Act on behalf of employed persons who are paid in respect of their employment out of moneys of the band.
The Minister can approve spending of band money:
(a) for the destruction of noxious weeds and the prevention of the spreading or prevalence of insects, pests or diseases that may destroy or injure vegetation on Indian reserves;
(b) to prevent, mitigate and control the spread of diseases on reserves, whether or not the diseases are infectious or communicable;
(c) to provide for the inspection of premises on reserves and the destruction, alteration or renovation thereof;
(d) to prevent overcrowding of premises on reserves used as dwellings;
(e) to provide for sanitary conditions in private premises on reserves as well as in public places on reserves; and
(f) for the construction and maintenance of boundary fences.
If money is spent by The Queen to raise or collect Indian moneys, the Minister can authorize that the band compensate Her to the amount that was spent.
If the Minister thinks that an Indian has deserted his spouse or common-law partner or family without sufficient cause, has conducted himself in such a manner as to justify the refusal of his spouse or common-law partner or family to live with him, or has been separated by imprisonment from his spouse or common-law partner and family, the Minister can order that annuity or interest money that the Indian is entitled can be diverted to support the spouse or common-law partner or their families.
The Minister of Finance may authorize advances to the Minister out of the Consolidated Revenue Fund of such sums of money as the Minister may require to enable him to make loans to bands, groups of Indians or individual Indians for the purchase of farm implements, machinery, livestock, motor vehicles, fishing equipment, seed grain, fencing materials, materials to be used in native handicrafts, any other equipment, and gasoline and other petroleum products, or for the making of repairs or the payment of wages, or for the clearing and breaking of land within reserves, to expend or to lend money for the carrying out of cooperative projects on behalf of Indians; or to provide for any other matter prescribed by the Governor in Council. No more than $6.5 million can be loaned out at once. Each year, loans made under this subsection must be reported to the House of Commons.
The ‘Gov’t of Canada are good farmers’ clauses
The Minister can have farms on reserves, and can employ people too, to instruct Indians how to farm, and he may purchase and distribute without charge, pure seed to Indian farmers.
The Minister can apply profits made through farming to make loans to Indians to start farming, or in any other way that he believes will promote progress and development of the Indians.
The ‘we have lots of power up in here’ clauses
The Governor in Council can make any regulation they’d like:
(a) for the protection and preservation of fur-bearing animals, fish and other game on reserves;
(b) for the destruction of noxious weeds and the prevention of the spreading or prevalence of insects, pests or diseases that may destroy or injure vegetation on Indian reserves;
(c) for the control of the speed, operation and parking of vehicles on roads within reserves;
(d) for the taxation, control and destruction of dogs and for the protection of sheep on reserves;
(e) for the operation, supervision and control of pool rooms, dance halls and other places of amusement on reserves;
(f) to prevent, mitigate and control the spread of diseases on reserves, whether or not the diseases are infectious or communicable;
(g) to provide medical treatment and health services for Indians;
(h) to provide compulsory hospitalization and treatment for infectious diseases among Indians;
(i) to provide for the inspection of premises on reserves and the destruction, alteration or renovation thereof;
(j) to prevent overcrowding of premises on reserves used as dwellings;
(k) to provide for sanitary conditions in private premises on reserves as well as in public places on reserves;
(l) for the construction and maintenance of boundary fences; and
(m) for empowering and authorizing the council of a band to borrow money for band projects or housing purposes and providing for the making of loans out of moneys so borrowed to members of the band for housing purposes.
The Governor in Council may prescribe the punishment, not exceeding a fine of one hundred dollars or imprisonment for a term not exceeding three months or both, that may be imposed on summary conviction for contravention of a regulation made on anything above.
The ‘we’ll even control your elections’ clauses
The Minister can call for elections of the entire band council whenever he likes, as long as he deems it advisable for the good government of a band.
The Governor in Council can make orders and regulations for band council elections, including regulations around candidate nomination meetings, the appointment of duties of electoral officers, how voting will be carried out, election appeals and the definition of residence to determine voter eligibility.
The chief and councilors hold office for 2 years.
The Minister can vacate a councilor’s position if he believes he has been charged with committing an offence, missed three consecutive meetings without authorization or accepted a bribe, being dishonest or malfeasance. The Minister can declare this that person is ineligible to stand again as chief or councilor for up to 6 years.
The Governor in Council can make regulations about band and council meetings for anything, including who presides over the meetings, notice of the meetings, the duties of the Minister’s representative at the meetings and what number constitutes quorum.
The ‘sure you can have bylaws…that we approve’ clauses
Bylaws can be developed on a wide range of issues by the Band Council. Any bylaw made under S81 (the bylaws section) must be forwarded to the Minister within four days of its being made. The Minister can reject any bylaw made by the Band Council.
The Minister must approve bylaws made by Band Councilors about:
(a.1) the licensing of businesses, callings, trades and occupations;
(b) the appropriation and expenditure of moneys of the band to defray band expenses;
(c) the appointment of officials to conduct the business of the council, prescribing their duties and providing for their remuneration out of any moneys raised pursuant to paragraph (a);
(d) the payment of remuneration, in such amount as may be approved by the Minister, to chiefs and councilors, out of any moneys raised pursuant to paragraph (a);
(e) the enforcement of payment of amounts that are payable pursuant to this section, including arrears and interest;
(e.1) the imposition and recovery of interest on amounts that are payable pursuant to this section, where those amounts are not paid before they are due, and the calculation of that interest;
(f) the raising of money from band members to support band projects; and
(g) with respect to any matter arising out of or ancillary to the exercise of powers under this section.
The Minister must consent to offer someone title to the following property situated on a reserve, or they can otherwise not acquire title to:
(a) an Indian grave house;
(b) a carved grave pole;
(c) a totem pole;
(d) a carved house post; or
(e) a rock embellished with paintings or carvings.
The ‘only here can we get away with limiting commerce like this’ clauses
A missionary or a school teacher on reserve is not allowed to trade/sell goods or chattels to Indians unless they receive consent from the Minister. If they do, they’re subject to a fine of $500.
No one can remove minerals, stone, sand, gravel, clay or soil, or trees, saplings, shrubs, underbrush, timber, cordwood or hay, or have in their possession these items, from a reserve without the consent from the Minister.
The ‘we’ll appoint the judges, thanks’ clause
Justices who preside over a violation of this act or some sections of the Criminal Code are appointed by the Governor in Council.
The ‘remember residential schools? They can still exist…’ clauses
The Governor in Council can establish schools for Indians, and can enter into agreements to do this with charitable organizations or religious or charitable organization to offer schools.
The Minister can make regulations with respect to standards for buildings, equipment, teaching, education, inspection and discipline in connection with schools, provide for the transportation of children to and from school, enter into agreements with religious organizations for the support and maintenance of children who are being educated in schools operated by those organizations; and apply the whole or any part of moneys that would otherwise be payable to or on behalf of a child who is attending a residential school to the maintenance of that child at that school.
The Minister can order that certain children, if he advises it to be necessary, to attend school beyond the age of 16 but not past 18.
The Minister can order which school children are to attend, but no protestant children will have to go to Catholic schools, and vice-versa, unless written permission from the parents is granted.
The ‘better get you ready for jail early’ clauses
Truant officers have the same authority as peace officers and are appointed by the Minister to hunt down truant kids. This person may enter a space, with a warrant, where he or she believes children from aged 7 to 16 may be living. He or she may only use force if with a peace officer and the use of force is authorized in the warrant. If the person who was served the notice does not ensure that children are regularly attending school, they can be fined not exceeding five dollars or to imprisonment for a term not exceeding ten days or both.
A child who is habitually late for school shall be deemed to be absent from school.
A truant officer may take into custody a child whom he believes on reasonable grounds to be absent from school contrary to this Act and may convey the child to school, using as much force as the circumstances require