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DISCUSSION NOTES ON THB INDIAN 
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DISCUSSION NOTES ON THE INDIAN ACT 


introduction 


We are now ready to proceed with an important review of the Indian Act. Perhaps 
the first step should be to examine together some of the main features of the Act which 
appear to require amendment, and to consider what changes in the underlying principles 
are necessary in order to reflect the needs, objectives, and desires of the Indian people. 


The purpose of this paper is to focus attention on some of the present provisions and 
objections or suggestions that have been made with respect to them. The comments 
herein are intended to facilitate and promote discussion. They do not necessarily repre- 
seni the Government’s view, for the Government does not wish to come to any firm views 

in n regard to changes in tne Act until it has the benefits of your advice. However, we have 
taken into account submissions by indian bands and associations, as wel] as interested 
non-Indian groups to the Joint Committee on Indian Affairs, along with subsequent 
representations made dy Indian groups and individuals and our own experience with the 
probiems and needs of Indians. 


Background of the Indian Act 


The Indian Act, c. 149, R.S.C. 1952, provides the legal framework within which the 
affairs of the Indians are administered by the Government of Canada in accordance with 
the exclusive legislative jurisdiction vested in it by the British North America Act. It does 
mot embody all the laws applicable to Indians, for generally speaking they are subject to 
the same laws as non-Indians, Rather, the Indian Act represents special legislation taking 
precedence over pmee legisistion which the Parliament of Canada considers is essen- 
tis] to the needs of the Indian people not only as a safeguard to protect their treaty and 
property rights, but as a means of promoting their advancement. It does not include, 
however, many of the programs operated by the indian Affairs Branch which are author- 
ized each year by Parliament through the Estimates and Appropriation Acts. 


Prior to 1951 the last complete revision of the Indian Act was in 1889. That Act has 
been amended from time to time but it had become increasingly apparent that many of 
@ provisions of the old Act were outmoded and did not provide a sufficient framework 
within which the needs and aspirations of the Indian population could best be met 
During the years 1946, 1947 and 1948 a NG Joint Committee of the Senate and 
House of Commons considered the Indian Act and the administration of Indian affairs in 
veneral, As a result of the work of this Committee and the representations made to it by 
ladian organizations, Indian bands, and groups and individuals interestéd in the welfare of 
Indians, a new Indian Act was passed by Parliament in 1951. . 


la considering the whole question of Indian legislation, it must be realized that there 
fe a great many Indian bands widely scattered throughout Canada, speaking different 
ba ey differing in racial and cultural background, and in various stages of economic, 
‘political, and social development. In view of these varied and diverse Indian interests, a 
comprehensive Indian Act must be broad enough to accommodate the different Indian 


groups and communities. The 1951 Act modemized and improved exisiing legislation in 


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Lm A a4 nwroacten bhsd auwlaiAng. * ii xf a day 
lr nas aise bain SUX EES Aa that provision be rnade far Y automatic wsthdrawal from 


mere g2ySn'p In Cases wheis. oe Ort of an illegitimate chila of aq indian woman 15 
ree ou hen ao so ee tary 
levitir trnized by the su psequen:. Marnage o ¥* 8 Indian x vother and non-ladian fathe ar 
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Distributions on Withdray ai 
The present Act recognizes that a band member tas an interest in the assets of his 


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Sand. Upon enfranchisement, he is entitled to receive a share of band funds and annuity 
moneys, where these are payable. [t has been suggested, therefore, that the existing 
entitlements following enfranchisemeni jnignt also apply in the case of 2 withdrawal from 
inembership. Exceptions to tnis might * made as in the case of iJlegtimate children who 
are struck off a band list because their birtns have been legitimized. It has been suggested, 
however, that an adopted child who ceases to be a member of the band by reason of 


adoption should receive the usual Re Sele 


32 has also been suggested that no person who withdraws or was previously enfran 


“565 


hised or commuted should be paid the entitlements more than once. 


Withdrawal of Bands 


In the present Act provision is made for bands to become enfranchised. If the 
enfranchisement provisions are removed. this would no longer be possible. Some provi- 
sion could be made which would enable a band to withdraw from the operation of the 
indian Act, if it so desires. For example, a band might wish to incorporate and receive 
title to all its assets and be free to administer them in accordance with provincial laws in 
he same manner as any company or partnership or it might wis’ to acquire the status of a 


separate municipality. Presumably, some provision could be worked out to meet this. 


Schools — Sections 113 to 122 


The importance of education was stressed by. the Joint Parliamentary Committee on 
— Affairs, which stated in its finai report in 1961 that education is the key to the full 
realization by Indians of self-determination and self-government. Indians pola and 
parents in particular, are recognizing more and more the need for a good education as 3 
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basis for economic and social devel: 


Sections 113 and 122 of the Indian Act provide authority and set out principles 
governing Indian educational services. For instance, the federal government may itself 
operate schools, or may enter into agreements for the education of Indian children with 
provincial govemments. school boards or religous or charitable organizations: it may 
make regulations covering various phases of the educational program, provide for trans- 
pioesisae to and from school, rest arrange for the maintenance of children at schools 

peraied by religious organizations. These sections also cover such matters as school-age 
Na rules remancine the school to be attended, truancy, and the religious denomination 
af the teachers at Indian Gay schools. 


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More than 40% of Indian students now attend provincial schoals with non-Indians, 
and attendance at day schools on reserves is ee higher, relative to residential schools, | 
Experience has shown that Sections |13 to 122 do not provide sutficient authority to 
meet some of the current problems: tor example, it has been pointed out that more 
elastic provisions are needed to meet the various aspects of joint agreements with local 
and provincial schoo! authorities. and to facilitate agreements with private schools and 
the education of non-Indians in [ndian schools. Also the provisions covering the support 
and maintenance of Indian pupils might be Droadened to ensure that there is adequate 
authority to deal with this impormant matter 











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In non-[ndian schools, there are variations between provinces in the rules and pro- 
dures covering schoo! attendance and truancy. On the other hand. at present Indian 
pupils are governed by relevant sections of the Indian Act. However, it has been suggested 
that in these matters Indian pupils in each province might.be made subject of the same 
rules and procedures as non-Indian pupils. It has also been pointed out that the choice of 
the school to be attended should rest with parents to a greater extent than it does at 


present. 


Kindergarten classes for children under six years of age, and educational assistance 
for Indians over 16, including university courses and technical training and adult educa 
tion, are already provided. It has been pointed out, however, that specific authority , 
should be provided in the Indian Act for educational services to Indians under and over 
the school-age group. : 


School committees are operating on a number of reserves, where they are carrying y 
out valuable functions, and it has been suggested that such committees be recognized - 
formaily by including a provision in the Indian Act. 


Local Self-Government 


There is a quickening desire on the part of many Indian leaders for local control. - 


One of the basic problems, therefore, is to meet in the Indian Act the varied condi- 
tions and needs of Indian people across Canada. One way by which this might be met is 
to provide for a broadened system of local or municipal self-government, which might be 
adopted to the needs of various Indian bands. The exact manner by which this could be 
accomplished would have to be worked out. In broad terms any Indian band residing ona 
reserve might, with the approval of the Governor in Council, have the night to organize 
for their common welfare and advancement and may adopt an appropriate constitution 
and by-laws by a majority vote of the members of the band of the full age of twenty-one 
years, at a special meeting or referendum held for the purpose. Such constitution and 
dy-laws could become effective upon approval by the Governor in Council and may be 
revoxed or amended by a majority vote of the members of the band with the approval of 
the Govermor in Council. 


The Governor in Council upon appiication by the council of a band could issue a 
charter of incorporation to such band provided that such charter would not have force or 
effect until ratified by a majority vote of the members of the band, of the full age of 
twenty-one years, voting at the meeting or referendum held for the purpose. 


A charter, when granted by the Governor in Council, might convey to the incor- 
porated band the power to purchase. take by gift. or bequest or otherwise own, hold, 
manage, Operate and dispose of property, real and personal, including power to purchase 
the interest of indian owners in reserve lands and such further powers as may be neces 
gary in the conduct of corporate business not inconsistent with the provisions of the- 
indian Act or any other act of the Parliament of Canada. A proviso could be included 
that no reserve land would be sold or granted Without the consent of the maionity of the” 
voting members and approval of the Governor in Council. * 


15 


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A 10445 ‘3572 (*47) > | 
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Canada. Dept. of Indian Affairs 
and Northern Development. 


Discussion notes on the Indian 
NC. #16445 


E URKEAL LNDILLU R 

Boreal Institute for Northern 
Studies Library 

CW 401 Bio Sci Bldg 

The University of Alberta 

Edmonton, AB Canada T6G 2E9 





































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