The Indian act: Can it be abolished?

• Author: Edmond, John

Two simple observations are made so often about the Indian Act as to amount to cliches: That the 1876 Act is still with us, and that it should be "abolished." The first of these is technically false; the 1876 Act was repealed in 1951, and replaced with the Act we have today, though it has been amended countless times. The more interesting question is, to what extent does the Act of today resemble that of 1876 (the implication of critics being that there has been little if any change since 1876)? The question of abolition, known to drafters as "repeal," is even more complex in its ramifications.

A recent example is from an article by Michael Den Tandt, a national columnist with Postmedia papers, writing on Sir John A. Macdonald: "The bigotry in Macdonald's speeches is reflected in the 1876 Indian Act, in many places almost word for word. And the Indian Act remains the law of the land in 2015. Though no political party claims to like it, none has made an urgent matter of its abolition. How can that be, if we're as evolved as we like to imagine?"

The Act of today is not Macdonald's Indian Act, any more than, say, the original Criminal Code of 1893 is still in force. In 1951, a complete redrafting of the Indian Act was undertaken, the 1876 Act fully repealed and replaced by a statute thoroughly modernized by the standards of the day.

A principal change was to give structure to band governance. While the basic structure of band and reserve were carried forward, a municipal model of governance was adopted: each band would henceforth have a council consisting of one (and only one) chief, and one councillor for every one hundred members, up to 12 councillors, unless the Minister "declared" otherwise "for the good government of the band". Tenure was two years. The reserve could, by vote, have up to six ward-like "electoral sections." Meeting regulations were made. Councils had powers to make certain by-laws on the use of the reserve, subject to ministerial disallowance; some bands, with approval, could tax, budget and spend. There was an escape hatch: bands could choose to select a chief and council "according to the custom of the band." With the resurgence in recent years among First Nations of pride in culture and language (LawNow, Jan/Feb 2011), custom selection has become more popular. Opt-in legislation, the First Nations Elections Act, came into force this April. It will allow First Nations that choose it considerably more scope, including four-year terms.

The term "Indian" has fallen into disuse in the last couple of decades, in favour of "First Nation,"...