The Indian Act, is the principal federal statute dealing with Indian status, local government and the management of reserve land and communal monies. The present Act was passed in 1951, but its provisions are rooted in colonial ordinances and Royal Proclamations. The earliest Indian legislation was directed at regulating trade with the Indians and non-Indian settlement in native territories. Prior to Confederation, laws to protect native lands were enacted in Upper and Lower Canada and in NS, NB, PEI and BC. The concept of Indian status was originally developed to determine entitlement to live in Indian reserve communities, but this changed after 1985 amendments to the Act which now treat Indian status, band membership and residency as separate issues (see Law of Aboriginal People). The policy of the federal government is to undertake changes to the legislation in response to native initiatives.

Transitional State

The Constitution Act of 1867, assigned to Parliament legislative jurisdiction over "Indians and Lands reserved for the Indians"; 2 separate powers cover status and civil rights on the one hand and Indian lands on the other. The first federal Act was passed in 1868, drawing heavily on earlier legislation of the Province of Canada. Subsequent legislation promoted assimilation into non-Indian society: Indian status was seen as a transitional state, protecting Indians until they became settled on the land and acquired European habits of agriculture. Enfranchisement, first legislated in 1869, was the vehicle for assimilation, and was originally a voluntary relinquishment of Indian status. The first Indian Act, so called, was passed in 1876 and was expanded considerably over the years to promote assimilation policy. Traditional Indian practices such as the sun dance and potlatch were officially suppressed. Enfranchisement in certain circumstances became involuntary.

During the 1970s, much public attention focused on the statutory rule that an Indian woman lost status on marriage to a non-Indian. A 1973 decision of the Supreme Court of Canada was widely criticized when it held that this rule did not discriminate against women even though Indian men kept their status if they married non-Indians (see Jeannette Lavell). Equality provisions in the Constitution Act, 1982, finally led government to amend these provisions. Those who had lost status through marriage were reinstated as Indians and as band members. Their children gained Indian status, but would not gain band membership for 2 years. This interval was intended to give Indian bands time to enact their own membership codes, which could exclude the children, but not their mothers. If such a code was not enacted prior to June 1987, the children gained band membership as well.

The effect of this amendment was to increase substantially the number of status Indians in Canada, placing pressure on band budgets and their limited land resources. While the total area of Indian reserves did not change appreciably, the status population nearly doubled in the 10 years after 1985. The ability to enact a membership code remains, but persons already on a band list cannot be removed.

Constitutional Challenges

Constitutional challenges arising from the 1985 amendments have already been brought in cases such as Twinn (1995) and Corbiere (1993), both before the federal court of appeal as of 1996. These amendments, which also provided for greater band regulation of liquor and residency on reserves, fell short of the kind of self-government Aboriginal people have argued for (see Aboriginal Rights).

Further amendments to the Act in 1988 afforded bands greater powers to tax land interests in their reserves and permitted lessees to mortgage their leaseholds. The general prohibition against property on reserve as security for financing has been seen as an obstacle to economic development in many communities.

Indians remain concerned that the unilateral increase of their numbers, coupled with general government austerity and increasing involvement of provinces in Indian issues, signal a general lack of commitment to their special needs and rights. Parliament has been notably reluctant to exercise the full scope of its legislative powers over Indians, and despite acknowledged shortcomings, the Indian Act remains an essentially Victorian statute that continues to resist change. The Chrétien government (1993-2004) stated that it was prepared to abolish the Act, continuing a line of similar commitments made for over a century, but it remains unclear which laws or whose law-making powers would fill the void.

Treaties

Section 88 of the Act incorporates provincial laws (treaties) that affect Indians specifically and which do not contradict the provisions of the Act. Also, provincial laws are subject to the terms of any applicable treaty, and only the federal government can override treaty rights.