The Indian Act: Serious Internal Error—Discontinue use


October 1997

By Paul Barnsley

Windspeaker Staff Writer


Compared to timeless works like the Magna Carta, the United States Constitution or the Iroquois Confederacy's Great Law of Peace, the Indian Act isn't much. But for the 600-odd band councils in Canada, it's the alpha and omega of day-to-day life.

The original Indian Act was written in the last century at a time when Aboriginal people were still being hunted for sport by colonial powers. That's not news. It's documented fact. European settlers found the Indigenous peoples' presence and claim on the lands and resources of the New World to be a problem that could be treated like a gopher infestation. That attitude is clearly present, especially in the earliest versions of the act.

The Indian Act was last given a major overhaul in the 1950s. In those days, Aboriginal people in Canada were risking criminal conviction if they attempted to hire lawyers to represent their interests; Aboriginal veterans were fine enough to serve in the Canadian army during the Second World War, but they couldn't have a drink with their comrades when they returned home because of race barriers that rivaled anything that the southern United States or South Africa had on offer.

The act was modernized to reflect an only slightly more benevolent approach than the one of 'Great White Father' paternalism or the ruthless Conquistador mentality of the original framers. Yet the aim of the legislators in the 1950s still appeared to be condescendingly geared toward ending all cultural, legal and political distinctions between themselves and Aboriginal people.

If you read between the lines, it's very easy to see that the Indian Act was passed and amended by the Parliament of Canada to serve as an interim law that would deal with the 'Indian problem' for the time it took the government and its bureaucracy to find a permanent solution to that problem—Total assimilation.

Assimilation has always been on the table. Traditional people say that band councils were established (frequently at the point of a gun) to let Aboriginal people preside over their own destruction. When you look at it from that point of view, it appears to be a chillingly malevolent move for a government to make, especially one for a country with a reputation as a liberal democracy that values human rights.

In many First Nation communities there is a serious split between those who have embraced the Indian Act system and those who have not. That is a very painful division that does great harm to these communities. It doesn't get as much attention as the harm done by the residential school system and other attempts by the churches and governments to convert Aboriginal people into Euro-Canadians, but the harm done by the loss of traditional Aboriginal self government systems is every bit as harmful.

Bitterness and suspicion poison all dealings between the two sides. The traditional people call the band council supporters sell-outs and traitors. The band council supporters are outraged by such serious attacks. They are frozen between where they'd like to be (serving their people with honor in the traditional way as they believe their pre-contact leaders did) and where they feel they must be (functioning in a modern world in the best possible way.)

The average reserve community has a population of a few hundred people. The band council performs a similar function to that of a municipal government for those people but there are crucial differences between the two political systems.

Because band councils don't rely on the taxation of their people to pay for services, the money comes from the federal treasury. The tax-exempt status of Aboriginal people has its roots in agreements between the European settlers and the original inhabitants of what is now Canada. Land was made available to the newcomers in exchange for a guarantee that Indigenous people would never have to submit to the Crown's taxation. In most cases, the Aboriginal leaders of the time saw themselves to be representing separate nations; they were allies, not subjects, of the Crown. Somehow, through the course of westward expansion and settlement, the settlers assumed political control over all the lands and people. That control was frequently obtained by force.

The Royal Proclamation of 1763 spelled out exactly how land could be acquired from the Indigenous population in British North America. The British king wanted his representatives in North America to uphold the honor of the Crown by dealing fairly and openly with the Indigenous peoples. That high water mark in the behavior of the colonizing powers has left an expensive legacy for modern governments.

One of the biggest, if not the most obvious, sub-texts of life in Indian country—especially in the deficit cutting mania of the 1990s—has been the federal government's attempts to minimize the cost of keeping legitimate and legally binding promises made by their predecessors to the ancestors of Aboriginal people.

In the federal election of 1994, the soon-to-be-elected Liberal Party of Canada pledged to support the inherent right of Aboriginal people to govern themselves. It looked like a huge stride forward. It appeared that the federal government was prepared to make a radical departure from the assimilation policies of previous administrations.

Subsequently, when then-Indian Affairs Minister Ron Irwin introduced his department's plan to implement self government, the plan was not particularly well-received by Aboriginal leaders. The self government plan put forward by the federal government did not recognize the power to govern was inherent. It delegated power from Ottawa to the First Nations and it was a very subordinate power, certainly not a recognition of sovereign First Nation governments. The federal government, even under a minister as progressive as Irwin, showed the world that it had no intention of sharing any of the real power that it possesses.

The philosophical problems of the Indian Act are only the beginning of the many problems facing Aboriginal governments. A band council or tribal council with an annual budget of $40- to $50 million dollars (Saskatchewan's Meadow Lake Tribal Council and Ontario's Six Nations are both in that range) has a complex job to do as it goes about providing services for its membership. It's a job that is on the same scale as that faced by a good-sized town council.

But unlike in a municipal government's budget, there is no money in the Indian Affairs budget for a full-time planner or legal department or other professional supports. As the population in First Nations grows (and the Aboriginal population is growing at a faster rate than the overall population) the pressures on band councils will grow accordingly.

Robert Manuel, a former chief of British Columbia's Neskonlith band who ran unsuccessfully for national chief of the Assembly of First Nations, has seen the pressure and complexity of the job of chief or councillor grow during his quarter-century in politics. He believes the Assembly of First Nations must become a counter-bureaucracy that can handle the complex political manoeuvering that is required so bands can hold their own when faced with government policies that are contrary to the best interests of band members. That's only because there is no money for each band council government to set up their own collection of skilled help.

Aboriginal people in Canada watched closely as the United States handed over authority to American tribes many years ago. The Aboriginal people south of the border took over budgets and authority for many things that the federal Bureau of Indian Affairs had looked after for many years. The mistake that the American tribes made was in not figuring in the cost of legal and professional services that were provided to the bureau by other branches of the government. Those support systems were expensive and were not part of the budgets the tribes took control of.

The extra cost soon had the tribal governments in over their heads. In many cases they were forced to sell off their precious land base to survive. This led to the infamous checker-board reservations where land reserved for the tribe was dotted with plots that had been sold off to non-Aboriginal owners in order to raise money.

Traditional leaders believe it was yet another attempt to finish them off. First Nations began with the entire North American continent. Within a couple of hundred years, their population decimated by disease and the Indian wars, they were reduced to living on tiny patches of land, land that was almost always the least valuable, least attractive real estate. It seems quite reasonable that some Aboriginal people are suspicious of every move that the non-Aboriginal governments make.

History suggests they'd be fools not to be.

But the continued growth of the Aboriginal community and its unwavering determination to preserve its culture and traditions, no matter what, suggests that there's going to have to be a major change in the way the game is played.

That change will take one of two forms: a mutually acceptable replacement for the Indian Act that includes a reasonable settlement of land claims; or Canada will have to finally give up all pretense of trying to deal fairly with Indigenous people.