Last Updated on May 10, 2022 by Allard John Keeley
The rights and privileges accorded Indigenous Canadians by the government formally begin at the time that Canada itself was being born as a nation.
Poundmaker [Public Domain]
The rights and privileges accorded Indigenous Canadians by the government formally begin at the time that Canada itself was being born as a nation. In 1876, 9 years after Confederation, various pieces of Colonial legislation dealing with First Nations and their members in Canada were consolidated into The Indian Act. The two most recent pieces of legislation were The Gradual Civilization Act of 1857 and The Gradual Enfranchisement Act of 1869. They were explicitly intended to “do away with the tribal system and assimilate the Indian people in all respects with other inhabitants of the Dominion as speedily as they are fit to change,” in the words of Canada’s first Prime Minister John A MacDonald, back in 1887. It was paternalistic, intervening legislation that gave the Superintendent General of Indian Affairs a great degree of control over so-called status Indians who lived on reserves. Benefits would be allocated often on the basis of a judgement of an individual First Nations member’s supposed character. Traditional rituals like the potlatch ceremony of the western tribes were banned and in the 1920’s, section 141 was added to The Indian Act, banning the use of lawyers and legal counsel by Indians and effectively shutting off recourse to the legal system for aboriginal peoples.
After the Second World War and the atrocities revealed in concentration camps, Canadians attitudes towards Human Rights in general, and towards First Nations in Canada began to change and, as a signatory to the United Nations’ Declaration of Universal Rights, Canada revised The Indian Act in 1951. The more oppressive sections of the Act were removed and Indians were allowed more freedoms to pursue their traditional culture as well as being now allowed to enter pool halls and gamble – as incredible as it may seem that those restrictions were still in place in 1951 right up to the amendment. Legal counsel was allowed and women were given the right to vote in band councils. Some point out that these reforms merely re-established the original 1876 act by removing by removing later amendments.
In 1969 Trudeau attempted to incorporate aboriginal peoples, through a white paper study, by dismantling The Indian Act and treating them as equals to any Canadian citizen. This, however, was rejected by the First Nations of Canada. Instead, they wanted to keep their legal distinction as Indians but strengthen their treaty rights. This marked the end of attempts, both oppressive and based on rights, to assimilate aboriginals into Canadian society and marked a shift towards constitutionally protected rights for First Nations.
This brings us to Canada’s Constitution Act of 1982 – also known as the repatriation of the constitution – and specifically Section 35 of the Constitution Act, which recognizes and affirms existing Aboriginal rights. The act, however, does not define them. This has been left up to the courts to decide in many cases. As well, the Supreme Court has ruled its rulings do not apply to extinguished rights – treaty rights that had expired by 1982 – which cannot be revived. It has also stated that the existing rights must be interpreted with flexibility as their use changes over time.
So, what exactly are the rights and privileges accorded to First Nation members in Canada? That depends on whose perspective you share. For many Indians, their rights include hunting and fishing on their “traditional” lands and many have been arrested for breaking provincial and federal game laws. Sometimes, however, Section 35 results in a traditional First Nation right being upheld by the courts. As Harold Cardinal, a Cree writer, political figure, negotiator, and lawyer stated in 1969, “we would rather continue to live in bondage under the inequitable Indian Act than surrender our sacred rights. Any time the government wants to honour its obligations to us we are more than happy to help devise new Indian legislation.” So despite criticism from organizations like the UN, The Indian Act – albeit modified various times in recent years – remains in place in Canada, in large part because of the insistence by First Nations themselves.
A status Indian is a First Nations individual who is registered with the Federal government and is a member of a band that has signed a treaty with the Crown, or the government of Canada. The Indian Act applies only to status Indians and not to Métis and Inuit peoples, even though their constitutional rights are recognized by Section 35 of the Constitution Act of 1982. Historically the Indian Act has meant that status Indians have the following rights:
- The right to live on reserves.
- The right to share in band monies.
- The right to vote for band council and chief.
- The right to inherit band property.
- Since 1985, First Nations have the right to develop their own membership codes, separate from status Indian requirements. That means you can be a band member without being a status Indian, and vice versa.
- For status Indians living on reserves, certain tax exemptions apply. When living off-reserve these exemptions no longer hold. For example, sales taxes are exempted for most purchases made on reserve lands. If their property is located on reserve lands, then they are exempt from property taxes. Those status Indians employed on reserve lands or whose businesses are located on reserve lands may be exempt from some business and income taxes but this depends on each individual case and is based on historical treaties signed with each tribe in the past.
This brings up the very complex issue of who is a status Indian. Originally male individuals of a First Nation who had signed a treaty with the Crown and their offspring and spouse all qualified. The problems began when aboriginal women intermarried with non-aboriginals or even non-status Indians and thus were enfranchised, which meant they lost their Indian status. This applied to First Nation women who married non-aboriginal or non-status Indians and not to males. In 1985, Bill C-31 was passed giving those who had lost their Indian status due to the provisions of the original act, the chance to regain it. However those who regained their status could only pass it on to one succeeding generation. This was challenged successfully in court and in 2011 the government passed Bill C-3: Gender Equity in Indian Registration Act. This allows the grandchildren of women who have regained their Indian status to be registered under the Indian Act. In essence, there has been a battle between various attempts by various governments to enfranchise First Nation members by allowing their status to expire under various rules, and First Nations challenging those rules in court. What it all means is that any benefits a status Indian may qualify for vary greatly from region to region and depend on what province or territory the First Nation member lives in. For example:
- Health Care Services: These are delivered by the provincial or territorial government in which the First Nation members reside, and are accessed through the provincial or territorial government’s health insurance program like any other resident. They may be supplemented by Non-Insured Health Benefits (NIHB) to improve native access to health care. NHIB is a national, medically necessary health program that delivers services like:
- Dental Care
- Vision Care
- Medical Supplies & Equipment
- Mental Health counselling
- Medical Transportation
- Band Employee Benefits: This program provides funding to support First Nation member employers’ contributions towards pension funds like employer-sponsored pension plans, the Canada and Quebec Pension Plans, and other non-statutory employee benefits.
Finally, Métis and other non-status Indians applying to register under the Indian Act as a result of recent court decisions will be assessed based on existing eligibility criteria for Indian registration. As with so much in Canadian history and politics, benefits and status within First Nations is an evolving process that depends on the courts as well as evolving legislation.
A Brief Portrait of Aboriginal Peoples in Canada
Riley Haas has been a leading expert since 2011 on immigration matters, with hundreds of publications online. Published author of three books about political philosophy, the Beatles and the Toronto Maple Leafs, respectively. BA from Bishop’s University, MA from McMaster University. You follow Riley on Substack https://rileyhaas.substack.com.