What will it take to abolish the Indian Act?
'The challenge, really, is what will replace it?' says president of the Nova Scotia Barristers' Society
It's been 145 years since the Indian Act was enacted to define and control the lives of Indigenous people in Canada.
"I think it's often the dream of many First Nations to get rid of it and come out from underneath it. But the challenge, really, is what will replace it?" said Tuma Young, who was recently named the first Indigenous president of the Nova Scotia Barristers' Society.
When the Indian Act passed in 1876, it outlined everything from who can live on reserves to the creation of residential schools. While certain aspects of the law have changed over the years, much of it remains the same.
Young spoke with CBC Radio Information Morning host Portia Clark about the act and its future during a special show to mark National Indigenous Peoples Day. Their conversation has been edited for clarity and length.
Tuma, from your point of view, what have been the most negative or harmful aspects of the act for people who are on Turtle Island?
There's so much there you wonder where to begin. But I would say the removal of the ability of First Nations to determine their own membership and who their people are. That's the status sections. That would be the most harmful and that would be the most large and far impacting sections of the Indian Act.
Another section would be the removal of the ownership and possession of their own lands. Those are just two that come to my mind.
Why do you say the inability to define your own status has had such an impact?
Almost every other group can say who their membership is, who belongs … If you say you are Mi'kmaw and a community accepts you, but under the Indian Act it's the government of Canada that says that you are Indigenous and that you belong to this community. So it's really the fundamental foundation of self-governance and self-determination.
And it sounds like it would have had the impact of dividing families and communities?
There's not a single family that hasn't been impacted by this section. You have entire families that are divided. Some are status, some are not, some have regained status, some don't have the same legal status as everybody else … It has become, I won't say necessarily complicated, but very complex, and people end up defining themselves as to what section of the Indian Act that you obtain status from.
People have been removed from their communities in the past because they lost their status. It was all about basically, you know, civilizing the savage in some ways. First of all, if you are an Indigenous woman and you married a non-Indigenous person, you lost your status because you were seen as marrying up. Whereas a non-Indigenous woman who married a status person, they were seen as marrying down.
If you went to war and you fought for the Queen or for country, you were seen as now being civilized. If you became a member of the clergy, a minister or a nun, you are now seen to be working for God and you were now civilized. You can also … get the right to vote and you are now civilized, so it's dichotomy between civilization and savagery.
What are the challenges to overhauling the act, or even the possibility of getting rid of it as some want?
Well there's been a lot of calls to get rid of the Indian Act and ... there are some legal obligations between Canada and First Nations that are under fiduciary responsibility and under historical treaties such as the royal proclamation, and Aboriginal treaty rights are at the forefront. This was tried in 1969 with the white paper policy, and what happened there is that it was done without consultation and many First Nations rebelled because they said you're taking away Aboriginal treaty rights, that special relationship. That's really the big challenge. What will replace it?
There is a vast schism between what the Canadian government would like to see and what First Nations would like to see. But both parties really want to see Aboriginal treaty rights implemented and recognized and defined, and if there is going to be a new Indian Act, that would be the whole process of it … whereas the old one didn't even touch on that. That's really the challenge.
I could imagine it could take decades to work through all of that legally. Are there examples of where the Indian Act is not followed, although it is in place and supposed to define this relationship?
Some of the new treaty agreements or the modern-day agreements, such as the Nisga'a First Nation [in B.C.]. When they settled their land claims and settled their recognition/definition of their Aboriginal treaty rights, they came into a new agreement. And part of the agreement is that the Indian Act does not apply in many, many areas, such as no status or anything like that.
The Nisga'a Nation control their own destiny, their own self-government, their own definition in their own territory. Other places, it's often very difficult to localize where there's a legislative vacuum. For example, here in Nova Scotia, provincial laws of a general nature do apply on reserves, except when they touch upon an Indian or Indians. This has raised a problem with, you know, where the province has areas to regulate and the federal government is supposed to, but they didn't.
For example, in residential tenancies. The provincial Residential Tenancy Act does not apply on reserve. You have apartments on reserve and there's potential for a terrible relationship between landlords and tenants so they can't go to the tenancy board. Similar situation that's occurring right now with the cannabis acts. The federal government has a particular area to regulate cannabis. The province enacted laws, who can sell, and now we're in this legislative vacuum where we have all these dispensaries popping up on the reserve.
It's a bit of an exciting time, but also, this is the same argument that's been going on since the 1970s.
With files from CBC Radio's Information Morning