Indian Act

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The Indian Act of Canada (1876) (full title "An Act respecting Indians") is an Act which deals with registered Indians, their bands, and the system of Indian reserves. The Act is administered by the Minister of Indian Affairs and Northern Development. The constitutionality of the Act is upheld under Section 91(24) of Canada's Constitution Act, 1867, which enables the Federal Government to legislate in relation to "Indians and Lands Reserved for Indians." The Indian Act contains certain legal disabilities and legal rights for registered Indians. Despite being exclusive to a race, these rights in the Indian Act may be protected from the application of the Charter by Section Twenty-five of the Canadian Charter of Rights and Freedoms,^[1] which also protects those aboriginal and treaty rights recognized by Section Thirty-five of the Constitution Act, 1982. The Indian Act is not itself a source of Section 35 rights, although it may recognize certain existing aboriginal or treaty rights.

1 Status
2 Section 88
3 Case law
4 See also
5 References
6 External link

[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 all other people as well as Aboriginals. 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."

[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.