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A Primer On Canada’s Indian Act

A post by Jamie

There seems to be a lot of misinformation and possibly wilful ignorance perpetually circulating around about Canada’s—quite frankly genocidal—140-year-old Indian Act. Internet trolls and eugenicists alike declare that it has so many “benefits” for First Nations. Special emphasis is placed on the two separate events in Canada’s history that a proposal for putting The Indian Act through the shredder was shouted down by a majority of indigenous peoples. This, in turn, is declared as evidence of how beneficial the Act is to the people over whom it legislates. I disagreed that the Act had any benefit to indigenous peoples at all, before actually committing to sitting down and reading the entire length of its current revision on Monday. I even disagreed that it had any utility before finding a handy list of all the revisions that have been made since it was written, because I’ve heard plenty from indigenous peoples, of what a piece of work this thing really is. And I still think it’s the work of a eugenicist scumbag now, after reading its entire length in the current revision (no wonder all the eugenicists agree with each other!), and this post is going to be about every reason why I came to that conclusion years ago.

(Just Some) Historic Problems With The Indian Act

In the beginning of the legacy of The Indian Act, “Indians” were legally non-persons. They were also considered British subjects whose mental capacities were comparable to that of a small child, and thus, the Act has a long legacy of being both extremely patronizing and paternalistic. But what’s really important here is why The Indian Act came to be in the first place, and the answer was “to kill the Indian in the Indian”. The Act replaces all prior forms of indigenous self-governance and law, which were thought to be primitive and therefore in desperate need of being eradicated. The Act also explicitly banned cultural traditions such as the sundance (from what I’m able to determine, still banned); and the potlatch ceremony (from 1885 to 1951), in which the host family would give gifts and feed their guests for up to ten consecutive days while the host family created music, sang, and danced to retell their creation stories and traditional knowledge. This might sound familiar, because where most of us come from, it’s fucking Christmas and Boxing Day (which gets its namesake from the tradition of packing up what remained of one’s Christmas feast, to give to the poor the morning after). Penalties for observing or helping organize a potlatch or Tamanawas dance were two to six months in prison — meaning even Christmas dinner on a reserve could result in incarceration. Later amendments banned other forms of dance and required status Aboriginal communities to request permits in advance of a pow wow or, in the case of Western provinces, any public display of their traditional regalia.

Furthermore, about that regalia from Western communities. Though the Act explicitly banned anyone from taking traditional items such as carvings from reserves, Christian missionaries who set up churches in various West Coast communities did just that. Since the potlatch and Tamanawas dances were banned, Christian missionaries in their infinite wisdom said “Well, we’ll just store these costumes for you in our church, since you won’t be using them.” Within a couple of decades, the traditional West Coast regalia was scattered all over the world into private art collections (some has yet to be recovered).

Tlinglit Raven dancer

Tlinglit Raven dancer, Gene Tagaban (image from Facebook)

For two years, the Act also required all children of status Aboriginal parents to be placed in residential schools, which for those of you who are unfamiliar with the term, were extremely abusive and hostile religio-cultural brain-washing centres that now fulfil criteria for genocide. And in fact, for 48 years after the United Nations defined genocide as everything just short of invading another country for the purposes of supplanting a new government, they continued to operate. Canada also made up its own definition of genocide, which is suspiciously narrower than that of the United Nations. Hmmmmm. Something fishy is going on here, and it’s not the smoked salmon.

The “Queen of Canada”

Yes, she did say that. So did the Prime Minister’s office. But what it seems most Canadians either don’t realize or don’t want to, is that <initiate snark here> Her Majesty the Queen of Canada </snark> owns the whole fucking country. This is explicitly stated in the Indian Act. She owns every square inch of land except for those lands that were legally purchased by indigenous peoples in 1880 and passed down through inheritance to its present-day title holders (more on that momentarily). So, not only is Queen E just benevolently “giving” Canada’s First Nations reserves to inhabit and use, but nobody else in the country owns their own non-reserve property either. If I had a mortgage, this is the kind of information that, had I not known this at any time previous, would make me furious right about now. I suppose instead that anyone with a mortgage, who doesn’t yet know that this is what the Act literally states about the land they think they are buying, is probably looking at reserve lands and thinking “Why don’t I get free land? Ohh, I suppose it’s because I’m not Indian! That’s racist!” Cue mechanically useless flailing and optional ranting about “special rights” at any time in the predictable unravelling of this tired discourse.

Well, the reason why reserves are discussed at all in The Indian Act is because reserve lands are one of the many promises made to indigenous peoples during the formation of the 11 Crown Treaties. But a multitude of other related matters are also discussed in the Act — primarily, who has status under the Act; who is entitled to apply for status; and inheritance laws and rules pertaining to land, money, and personal property for descendants of status “Indians”. For instance, from 1951 to 1985, if a status woman married a non-status man (i.e., a non-status Aboriginal man, an Inuit man, a Metis man, or a Settler), or had one or more children with a non-status man, she lost her status. That meant that her children and grandchildren were stripped of their inherited Treaty rights. Children of status women who were stripped of their status through marriage, child-bearing, or adoption, were only able to apply for status after the 1985 amendment, and grandchildren of those same women were only able to apply for status after the 2011 amendment, which changed the 1985 amendment from all about blood quantum to simply who your grandmother is. If you’re paying attention at this point, you may find yourself thinking about how much land title was lost due to the legal disruption of inheritances.

But that’s not the only way reserve lands were “surrendered”. In most cases, surrendered land went to the Crown, especially during several decades of strategically implemented outbreaks of smallpox, tuberculosis, and forced sterilizations (one of these things is not like the others). Amendments were also made specifically for the express purpose of making reserve lands extractable. By this, I mean that not only was a band required to develop the land or forfeit it to farmers, but a band can be convinced through meetings set by the Minister of Aboriginal Affairs and Northern Development to surrender their reserves for a settlement. This was done by majority vote among band council members (one for every one hundred band members) and the elected chief, with only one opportunity for appeal. The Minister gave himself the power to cast the tie-breaking vote in the event that the decision was split right down the middle. Now it only takes agreement between three band council members (thanks, Harper?), care of Bill C-45.

Normally the Minister calling a meeting to talk a band out of its reserve is called a conflict of interest, but not in the case of reserves! And that’s not all — if a band did not wish to surrender their reserve lands to the Crown, the Minister could approve the construction of a railway, highway, or other public infrastructure, straight through the middle of the reserve anyway, for which the band is held responsible for its maintenance and punishable with fines and/or three months in prison for interfering with construction in any way. Imagine a bank doing the same to a private citizen who owns a farm. Oh, wait! That actually happens too and now you know why! And it gets even more rich, because early amendments to the act allowed entire communities to be forcibly displaced from their reserves if the adjacent city was growing really fast-like. Many of those former reserves have been turned into today’s middle class suburbs.

So what does all this information about inheritance, title, and status mean? Well, it means that The Indian Act actually produced permanent loss of reserve lands that were supposed to be protected by the Crown Treaties. That is, for those people who retained their treaty rights from 1920-1961, despite an amendment being added that gave the Minister the power to arbitrarily pick individual people or even entire bands, and simply strip them of their status. It also means that the purpose of the Act, which was to assimilate indigenous peoples entirely, was very nearly successful.

The Consolidated Revenue Fund

The Indian Act explicitly states that all the money owed to indigenous peoples for the development of non-reserve lands and extraction of resources — for which they are entitled to a 40% share by virtue of the Crown Treaties — is deposited into the Consolidated Revenue Fund. If you’re Canadian, this probably sounds familiar, and it should, because it’s where all of Canada’s tax payer dollars are consolidated as well. It’s where all of our funding for social services, healthcare, and education comes from. It was also used to build the Canadian Pacific Railway on Chinese slave labour, and continues to pay for the construction and maintenance of all of Canada’s public infrastructure. It’s where our Prime Minister’s pay cheque comes from. It’s where the pay-outs to political parties come from when a party is dissolved by our “democratic elections”. You know the ones. Where 35% of the country somehow constitutes a majority because the other 65% of the country either couldn’t decide on who else to vote for or were targeted for robocalls that directed them to the wrong location to vote. I bet, if anyone bothers to look, it’ll turn out that our Consolidated Revenue Fund paid for those phone calls too.

What this means is that indigenous peoples are subsidizing Canada’s entire economy, and Canadian Parliament. Take all the time you need to think about that. Meanwhile, to get anything done at all other than grocery shopping, status First Nations are required by The Indian Act to ask permission from the Minister of Aboriginal Affairs and Northern Development first. The Minister must be consulted before any financial decisions at all are made by any First Nation band. The Minister may make a loan to a particular nation or band, say to build a school on a reserve because the government has failed in this duty, but only if there’s money left in his $6.05 million loan budget — which covers the maximum sum of loans to any/all First Nations bands in the entire country at any given time. If someone dies and there is an inheritance, it’s handled through the Minister. When Attawapiskat declared a state of emergency, that was handled through the Minister. And when emergency relief was finally sent to Attawapiskat, through the Minister, the band was required to lay out a budget for the Minister’s approval, then ask for permission to spend the money according to the already-approved budget.I don’t know whether the Receiver General or the Minister of Aboriginal Affairs and Northern Development is the worse accountant between the two of them.

More Problems Still In Effect Today

Did you know that a First Nation band can create by-laws for their own reserve, but that these by-laws must be approved by the Minister first, and also have set maximum penalties pre-ordained for them? If, say, a corporation is putting pressure on the Minister to make room for a pipeline, the Minister can deny the passing of that by-law and anyone who attempts to enforce it can face a three-month prison sentence.

Did you know that the RCMP have the power to remove a parent from the home of any child living on a reserve aged seven to sixteen, and put them in jail for ten days, if their child has been repeatedly late for or absent from school? That also means putting that child into the child services system while the parent is incarcerated if, say, the other parent was away at work or is estranged and does not have custody rights. Oh yeah, and schools on reserves are either Protestant- or Catholic-run, and the Minister gets the final say on whether or not any schools are ever built that centre curriculum and instruction around either indigenous culture or secularism.

Did you know that a status Aboriginal person living on a reserve can create a will that, at the whim and fancy of either the Minister or the courts, can just be over-turned at any time after death, even where legally inherited property (with title dating as far back as 1880) is concerned? Reasons cited can include that the will was “contravening public interest” or “contravening the band’s interests”. The Minister also refuses the family or band members’ rights to help any individual who has been declared mentally incompetent (by the Minister of course!), to draft a will. I think that’s usually called a conflict of interest too. Seems to me that for anybody else, either the family or an appointed legal guardian has that right.

Did you know that if an elder should, say, take a vial of reserve soil to a press conference, that he is in violation of The Indian Act and can be put in prison for three months for removing soil or organic material from the reserve? Interestingly, the Minister can order or approve removal of the same in mass quantities from the reserve for just about any reason, either from a pile sitting on the reserve or from directly underneath it (i.e., though a reserve is land protected by Crown Treaties, you can mine right under it). And anyone who attempts to interfere with this extraction of resources faces a three-month prison sentence.

Did you know that the Minister of Aboriginal Affairs and Northern Development can even lease reserve land for which privately owned title is held, without the consent of the Aboriginal person or family that owns it?

Did you know that the government can pass legislation that protects against the spread of illness (even non-contagious illness) on a reserve, but historically (even as recently as within the past ten years) has used this power to deliberately spread as much fatal illness as possible among indigenous peoples living on reserves?

What To Do About It?

As mentioned earlier, at two separate instances, it has been proposed that the entire Act is abolished in one fell swoop. It should be fairly self-evident if you’ve read this far, exactly why this is so fraught with problems that a majority of indigenous people would shout this suggestion down with all they can muster. There is no way to simply put the 80-page piece of legislation through the shredder in a single act, and abolish this blatantly racist and colonial, genocidal piece of garbage. It needs to be phased out, one issue at a time, with consultation with the people whose lives it so far has prescribed every waking moment of, for the past 140 years.

The question you should be asking yourself right now is why, of all people, Stephen Harper is the second Prime Minister to have made the suggestion to totally abolish the Act, and why he is passing legislation hidden within omnibus bills — without the consent of those communities, even though this is in violation of the Crown Treaties — that makes enormous changes to certain sections of The Indian Act that pertain to privatization of reserve lands when he can’t just do away with the whole thing.

The answer is profit. As indigenous wealth is already subsidizing the entire economy and political organization of Canada, abolishing The Indian Act in one swoop without consultation with First Nations would effectively abolish all Crown Treaties by erasing the very meaning of Aboriginal status, title, and associated treaty rights. As virtually all of those treaty rights have yet to be fulfilled for the first time since the ink dried, this would mean the extinction of indigenous peoples and their cultures in Canada (which, in case you weren’t keeping track, was the entire founding principle for The Indian Act too). Stephen Harper didn’t suggest abolishing The Indian Act out of benevolence towards First Nations people, any more than it was benevolence that established it into written law in the first place.