Indian Act
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The Indian Act ("An Act respecting Indians"), R.S., 1985, c. I-5, is Canadian statute that concerns registered Indians (that is, First Nations peoples of Canada), their bands, and the system of Indian reserves. The Indian Act was enacted by the Parliament of Canada under Section 91(24) of the Constitution Act, 1867, which provides Canada's Federal Government exclusive authority to legislate in relation to "Indians and Lands Reserved for Indians." The Indian Act is administered by the Minister of Indian Affairs and Northern Development.
The Indian Act defines who is an "Indian" and contains certain legal disabilities and legal rights for registered Indians. The rights exclusive to Indians in the Indian Act are beyond legal challenge under of the Canadian Charter of Rights and Freedoms. Section Twenty-five of the Canadian Charter of Rights and Freedoms in particular, provides that the Charter shall not be interpreted as negating specific aboriginal treaties and their corresponding rights and freedoms.[1] Section Thirty-five of the Constitution Act, 1982 also recognizes and affirms the legal validity of aboriginal treaties.
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[edit] Status
An Indian whose name is in the Indian Register established by the Act is said to have Indian status or treaty status. An Indian who is not registered is said to be a non-status Indian. Prior to 1985 status was often lost in ways which are now considered unfair. In Attorney General of Canada v. Lavell (1974), these discriminatory laws were upheld despite arguments made under the Canadian Bill of Rights. The Act was nevertheless amended in 1985 to restore status to people who had lost it in one of these ways, and to their children. Before the amendment, the ways in which status were lost were:
- marrying a man who was not a Status Indian
- enfranchisement (until 1960, an Indian could vote in federal elections only by renouncing Indian status)
- having a mother and paternal grandmother who did not have status before marriage (these people lost status at 21)
- being born out of wedlock of a mother with status and a father without.
[edit] Section 88
Section 88 of the Indian Act states that provincial laws may affect Aboriginals if they are of "general application," meaning that they affect other people as well as Aboriginals. Hence, provincial laws are incorporated into federal law, since otherwise the provincial laws would be unconstitutional.[2] In Kruger and al. v. The Queen (1978), the Supreme Court found that provincial laws with a more significant impact on Aboriginals than other people can be upheld, as "There are few laws which have a uniform impact."
Constitutional scholar Peter Hogg argues that in Dick v. The Queen (1985), the Supreme Court "changed its mind about the scope of s. 88." Section 88 could now protect provincial laws relating to primary Aboriginal laws and even limiting Aboriginal rights.[3]
[edit] Case law
In R. v. Jim (1915), the British Columbia Supreme Court found that Aboriginal hunting on Indian reserves should be considered federal jurisdiction under both the Constitution and the Indian Act. The case involved provincial game laws.
The act was at the centre of the 1969 Supreme Court case R. v. Drybones regarding the conflict of a clause forbidding Indians to be drunk off the reserve with the Bill of Rights. The case is remembered for being one of the few in which the Bill of Rights prevailed.
In Corbiere v. Canada (1999), voting rights on reserves were extended under Section Fifteen of the Canadian Charter of Rights and Freedoms.
[edit] References
- ^ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 631.
- ^ Hogg, p. 598.
- ^ Hogg, pp. 598-599.
