The Case for Indigenous Self-Governance: A Framework for Replacing the Indian Act, Research Paper Example

Background: The Indian Act, first created in 1876, charges the federal government of Canada with the control of First Nations, and the regulation of much of their affairs. From Indian status to control of land and resources, to the enactment of wills, the governing of education and the administration of bands, practically every aspect of Indian life is covered under the Indian Act, and entrusted to the federal government (Montpetit). The Act placed Indian people in a distinct legal category: deprived of the benefits of full citizenship, they became special wards of the government (Titley 11). In effect, they were considered to be minors. With the Indian Act, Canada also took it upon itself to impose criteria for Indian status, and they did so in a fashion that showed no regard for indigenous customs and institutions: for the purposes of the Act, “an Indian was defined as a male of Indian blood ‘reputed to belong to a particular band’” as well as the wives and children of Indian males (11). If an Indian woman married a non-Indian, she was regarded as having lost her Indian status, although she was still entitled to a share of band revenues and annuities (11). This remains an ongoing issue for Indian women today, many of whom are liable to lose property if they are divorced from Indian husbands on a reserve, due to the preeminence of the Indian Act (Alcantara “Indian Women” 516).

A significant aspect of the Indian Act, one that still has major ramifications for First Nations to this day, was the abolition of Indian self-government. The rationale given for this measure was that First Nations were not sufficiently ‘civilized’ yet, and only when they had become adequately ‘civilized’ could they be entrusted with the responsibilities of self-governance (Barman, Hebert, and McCaskill 4-5). Under clauses 61 to 63 of the Act, procedures were established for electing chiefs and councilors (Titley 12). These officials were to be elected by adult male band members, with women excluded. The terms of chiefs were established as three years, and they were charged with public works, granting reserve lands to band members, and suppressing “’intemperance and profligacy’” (12). The purpose of all this was to acquaint Indian people with Canadian-style democracy, and thereby to facilitate their assimilation to mainstream Canadian society. However, the Act did make allowances for certain special privileges under clauses 64 to 69, especially tax-exempt status for Indians on their reserve properties (12).

Thus, from the very start the Act was paternalistic, and aimed to assimilate Indian people. Understanding this history is vital to understanding the Act itself, and the ways in which it has shaped relations between First Nations and the Canadian government. As seen, the Canadian government defined who did and did not qualify as an Indian, and they did so in a way that was thoroughly sexist. The Indian Act also outlined, under clauses 86 to 94, the means by which an Indian could become enfranchised as a full Canadian citizen—by relinquishing his Indian status (Titley 12). Again, as seen previously, women automatically lost their Indian status if they married non-Indians. However, Indian men were required to receive permission from their bands, and allotments of reserve land, before applying to the superintendent general (12). The superintendent general evaluated such candidates, and approved those that were deemed to be sufficiently sober and suitable candidates for ‘civilization’ (12). Candidates then had to pass a probationary period of three years before receiving individual title to their land, and full Canadian citizenship (12). Thus, a major aspect of the Act was the desire of the Canadian government to assimilate Indians by undermining their cultures.

The Act has been reformed many times in its history. Reform efforts after World War II, in the 1940s and 1950s, generally focused on such measures as attempting to include Indian women, helping bands to achieve more self-governance, extending the franchise to Indian peoples, decentralizing the federal government’s responsibilities to the provinces, and educating Indian children with non-Indian children (Getty 51-52). This culminated in the 1951 Indian Act, which was actually little different from the original: while it abandoned coercive attempts to force ‘civilization’ on Indian people, it still held up assimilation as the goal (52). Indeed, the 1951 Act culminated in the 1969 White Paper on Indian Affairs, which announced the assimilation of Indian people by fiat: under the White Paper, the federal government was to abolish the Indian Act, and with it the special status of Indian people, and the involvement of the federal government (Getty 53, “Attempts”). The White Paper brought a backlash from Canada’s First Nations, who had not even been consulted, and the Canadian public in general. The White Paper was withdrawn in 1971 (“Attempts”).

In 1985, Bill C-31 amended the Indian Act, particularly with respect to the more gender-discriminatory provisions that applied to Indian women (Hamill 75). Bill C-31 abolished considerations of marriage in gaining or losing Indian status, making Indian status accruable only at birth, and something that was inalienable for life (77). However, Bill C-31 has provoked further controversy, with some Indian people—notably the Sawridge Band of Alberta—arguing it violates their rights by denying them complete control of who is and is not accorded status (78). Many Indian women have challenged the Bill for the ways in which it continues to perpetuate sexism: although it did reinstate Indian status for Indian people who had lost it, mostly women who had lost it due to marrying a non-Indian, C-31 also granted bands a great degree of leeway in drafting their own membership codes, thereby perpetuating much of the earlier gender discrimination (78). One major consequence: there are now status Indians who are not members of any band (78). Since Bill C-79 in 1996, reform efforts have focused on the granting of greater self-governance to First Nations bands, although many First Nations have opposed these attempts as not being in their own interests (“Attempts”).

Policy Options: There are a number of policy options available to the government. First of all, it should be noted that many First Nations have a rather conflicted and ambivalent relationship with the Indian Act: while a broad cross-section of aboriginal opinion holds that it is paternalistic and outdated, many Indian people also appreciate at least some aspects of it (Montpetit). A case in point is the tax exemptions provided for Indian people on their reserves: these are quite popular, and represent a significant area of agreement (Montpetit). In fact, maintaining the status quo altogether is certainly one option: the Indian Act can simply be retained.

However, maintaining the status quo would leave important aboriginal grievances unresolved. Accordingly, one option would be to abolish the Indian Act, and establish a system of personal and/or communal ownership of land (First Nations). Here, the argument is not simply for a change in the ownership of the deeds to the land: the argument is that by deeding reserve land to the First Nations and abolishing the Indian Act, Indian people will be able to advance themselves economically, by using their land much as non-Indian Canadians do. Shawn Atleo, national chief of the Assembly of First Nations, argued for a comprehensive vision of First Nations life beyond the Indian Act: aboriginal title to land, and a shift in the role of government in order to facilitate education, health, and aboriginal self-determination (Atleo 6-8). Key to this vision, then, is a renegotiation of the relationship between First Nations and the Crown: in abolishing the Indian Act, Atleo would have First Nations governments take its place (9).

As Storms explains, a key advantage of Atleo’s vision is that it focuses on building up First Nations communities: the idea is very much to empower First Nations to advance themselves politically and socioeconomically. It would, unquestionably, result in a much less paternalistic relationship between the Crown and First Nations, and the paternalism of the Indian Act’s provisions is the key thing that so many Indian people have against it (Storms). The prospect of providing Indian people with a better scope for advancing their social and economic conditions is indeed a desirable one, given the well-known realities of poverty and misery that characterize life on the reserves (Atleo 4-6, Den Tandt). The lack of property rights, the argument goes, is a key source of aboriginal poverty and misery: if they were granted rights to use their own land as they saw fit, economic development would follow.

However, there are other considerations. If the Indian Act is to be abolished, a key question concerns whether or not Indian people should continue to receive special status. Strictly speaking, formal equality would mandate that they should not—but then, this would leave many historic inequalities unaddressed (Wilson). Atleo’s vision is more complex, and offers solutions to many of the key problems in Indian relations, but must be implemented with care, since self-governance will require significant administrative and political capabilities (“Abolish”). And of course, economic development will take time: it will not simply spring into being because Indian people are granted more self-determination. However, as Alcantara explains, the subsidiarity principle, the idea that functions of governance should be decentralized and delegated to smaller levels of government, offers a compelling framework for aboriginal self-governance, if First Nations can develop the capabilities to implement it (“Aboriginal” 317-320). Thus, the government must proceed with caution if it is to abolish the Indian Act, in order to ensure that a better framework exists for Indian people to have more control over their own destinies.

Recommendation and Argument: The Indian Act should be abolished. It is an embarrassing relic of a time when the Canadian government sought to destroy the rich cultures of First Nations by assimilating them. Although it has been improved by a number of subsequent reforms, it remains fundamentally flawed in the way in which it positions the Crown as the protector of Indian people, and Indian people as wards of the state. These provisions are not mere legal abstractions: they are responsible for curtailing indigenous self-governance, and Crown ownership of reserve land, in particular, has been implicated as a major contributing factor to the poverty and misery of Indian people.

Accordingly, the government should first, seek to become better informed about opinions of Indian people and their leaders. Through research, including polling, the government will canvas opinions and hold summits to ensure a comprehensive understanding of the issues in question, and the attitudes of many First Nations people about how they should be reserved. This process should culminate in following Chief Atleo’s suggestion to hold a national gathering with the First Nations to redefine their relationship with the Crown (Atleo 9). In this gathering, the government and the First Nations will work out the particulars of their relationship, a relationship which will proceed on the overall basis of the subsidiarity principle, the idea that functions of government should be delegated to First Nations governments. This is also in accord with the general opinion of many Indian people, who wish the Act and its paternalistic hold over their lives abolished.

Following Atleo’s plan, the agreement will provide for a transition period away from the Indian Act (Atleo 9). During this transition period, First Nations communities can engage in their own deliberations, and determine how they will construct and implement their own governments once the Act is no more (9). Government assistance will be provided, both with financing and with organizational assistance in setting up and managing the functions of a working government. The government will also provide assistance with regards to funding for economic development, working in consultation with the First Nations to determine what kind of financial assistance they need, and how to promote self-sufficiency and sustainability in Indian communities.

All Indian people will cease to be wards of the state, and will become full Canadian citizens. However, membership has been, and will doubtless continue to be, a contentious issue. The Canadian government should primarily defer to bands in allowing them to decide criteria for membership. However, the equal rights of women must continue to be protected: thus, there will be no going back to the provisions of the Act concerning loss of status due to marriage. Other than this, the government will continue to recognize Indian status as accruing at birth, leaving questions of band membership to the bands themselves. Regarding non-Indians who marry status Indians, the government will allow bands to make the determination of whether or not to include these individuals as status Indians. If such individuals are granted Indian status and band membership, the government will recognize this. However, for the sake of fairness and equality, someone who becomes a status Indian and band member by marriage must not be divested of either status due to divorce or bereavement.

The tax-exempt status of First Nations people on their own reserves is one of the few provisions of the Act that remains popular. This should be preserved, with the stipulation that First Nations governments will assume all powers of taxation over their bands. The rationale here is to maximize the autonomy of First Nations governments, and to give First Nations an effective means of providing for their own public goods. By so doing, Canada will usher in a new era of autonomous governance for First Nations, and end the Indian Act entirely.

Works Cited

“Abolish Indian Act Prudently.” Winnipeg Free Press. Winnipeg Free Press.com, 22 Jul. 2010. Web. 10 Nov. 2013.

Alcantara, Christopher. “Aboriginal policy reform and the subsidiarity principle: A case study of the division of matrimonial real property on Canadian Indian reserves.” Canadian Public Administration 51.2 (2008): 317-333. EBSCOhost. Web. 10 Nov. 2013.

—. “Indian Women and the Division of Matrimonial Real Property on Canadian Indian Reserves.” Canadian Journal of Women and the Law 18.2 (2006): 513-533. EBSCOhost. Web. 10 Nov. 2013.

Atleo, Shawn. “It’s Our Time: A Vision for the Future.” AFN. Proc. of AFN Annual General Assembly, 2010. Web. 10 Nov. 2013.

“Attempts to Reform or Repeal the Indian Act.” Aboriginal Affairs and Northern Development Canada. AADNC-AANDC.gc.ca, n.d. Web. 10 Nov. 2013.

Barman, Jean, Yvonne Hebert, and Don McCaskill. “The Legacy of the Past: An Overview.” Indian Education in Canada: The Legacy. Ed. Jean Barmen, Yvonne Hebert, and Don McCaskill. Vancouver, BC: UBC Press, 1986. 1-22. Print.

Den Tandt, Michael. “Indian Act, racist relic of 1876, should be abolished—and so should reserves.” Postmedia News. Canada.com, 07 Jan. 2013. Web. 10 Nov. 2013.

First Nations. “Abolish the Indian Act.” Earthsharing Canada. Earthsharing.ca, n.d. Web. 10 Nov. 2013.

Getty, Ian L. As Long as the Sun Shines and Water Flows: A Reader in Canadian Native Studies. 1983. Vancouver, BC: UBC, 2000. Print.

Hamill, Sarah E. “McIvor v. Canada and the 2010 Amendments to the Indian Act: A Half-Hearted Remedy to Historical Injustice.” Constitutional Forum 19.2 (2011): 75-84. EBSCOhost. Web. 10 Nov. 2013.

Montpetit, Isabelle. “Background: The Indian Act.” CBC. Retrieved from CBC.ca, 30 May 2011. Web. 10 Nov. 2013.

Storms, Marc. “Support the Call to Abolish the Indian Act.” Windspeaker. AMMSA.com, 2010. Web. 10 Nov. 2013.

Titley, Brian. A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada. Vancouver, BC: UBC Press, 1986. Print.

Wilson, Daniel. “Repeal the Indian Act and abolish the Department of Indian Affairs.” This Magazine. This.org, 12 Oct. 2011. Web. 10 Nov. 2013