Indian Act: an historical perspective.

• Author: Leslie, John F.

In 2001 the Minister of Aboriginal Affairs, Robert Nault, announced that the government would be introducing legislation to overhaul the Indian Act. In anticipation of this legislation in February 2002, the House of Commons Standing Committee on Aboriginal Affairs began hearing from various witnesses on issues relating to the Act. For the sake of simplicity, this article uses the term "Indian" throughout. The Constitution states that Canada's Aboriginal Peoples are Indians, Metis and Inuit, but the Indian Act does not apply to Metis and the 1951 Indian Act specifically excludes Inuit from its operation.

The Indian Act is a complex piece of legislation that has evolved in scope, content, and sophistication since about the mid-19th century. The philosophical principles and practices of Indian policy are reflected in the legislation of the period. A couple of points should be Sept in mind.

Historically, Indian policy and legislation was devised largely without Indian consent or participation. The 1951 Indian Act was an exception. A more recent example of lack of meaningful consultation was, of course, the 1969 white paper. Both Indian policy and Indian Act legislation were developed by members of the dominant society, and they reflected the views and values of that society in regard to the proper place and role of aboriginal people. There was this constant, lingering Indian question in Canada.

Historical Origins of Indian Policy and Administration

The key historical document in terms of gaining an understanding of the evolution of Canadian Indian policy and legislation was the Royal Proclamation of 1763. The Royal Proclamation set down a policy and procedure for the Crown to acquire, in an orderly fashion, Indian hunting grounds. The Royal Proclamation also affirmed the first major principle of British Indian policy: that Indian people on Indian lands were to be protected from unscrupulous land speculators and traders. Indeed, the land cession treaty system of present-day Ontario and western Canada can be traced back to the Royal Proclamation.

Officials of the Indian Department which was founded in 1755 were expected to be custodians of the imperial policy of Indian protection, and were instructed to oversee and manage the acquisition of Indian lands required for European settlement. This role was expanded after 1830.

The traditional roles of Indian people in early colonial society were to act as middlemen in the fur trade and to assist regular armed forces in times of war. These activities were carried out with distinction during both the French and British regimes. In these traditional functions, Indian people shared, to a degree, in decision-making, devising trade practices, and planning military operations.

However, following the end of the War of 1812, the traditional roles for Indian people in colonial society declined rapidly. British and Canadian policy-makers were faced with determining a new role and place for Indians in colonial society. Instead of abandoning Indian people to face the harsh, new political and economic realities, the first principle of Indian policy, that of Indian protection, was reasserted. The new approach was simple and direct: place Indian people temporarily on reserved lands -- convert them to Christianity, dress them in European clothes, and teach them to become self-sustaining British citizens by becoming productive farmers.

Policy-makers of the day were optimistic that the process of Indian assimilation would be rapid. Indian people per se would disappear through intermarriage and other processes, as would their lands, the reserves. In the beginning, there was no obvious need for protective Indian legislation.

The Pre-Confederation Legacy

The Indian civilization program, which was launched in 1830, was based on three philosophical principles: Indian protection, based on the Royal Proclamation; improvement of Indian living conditions; and Indian assimilation into the dominant society. The new policy had three systemic cornerstones: a system of land cession treaties, which we see in Upper Canada, which is now Ontario and western Canada; a system of Indian reserves and supervisory Indian agents; and a system of schools to educate Indians, first at day and industrial schools, and later at residential schools.

Between 1830 and 1858, there were six government investigations of Indian policy and the new administrative arrangements. The cumulative investigations sanctioned the Indian civilization program and, in essence, created an institutional memory for Indian Affairs policy-makers that, in subsequent decades, informed their...