What is the Indian Act?

The Indian Act is the federal statute that has governed the relationship between the federal government and registered Indians (now generally called First Nations or status Indians) since 1876. It consolidates earlier colonial legislation and was enacted under section 91(24) of the Constitution Act, 1867, which gives the federal Parliament exclusive authority over 'Indians, and Lands reserved for the Indians'. The Act covers Indian status, band membership, reserves, band council government, and many aspects of daily life on reserve. It does not apply to the Inuit or to Metis peoples.

The Indian Act has been criticised since its inception as a colonial and paternalistic statute. Provisions over the years have included compulsory residential schooling, the requirement that First Nations get permits to leave reserves (the pass system, 1885 to 1951, never enacted but enforced administratively), the prohibition of the potlatch and other ceremonies (1884 to 1951), the imposition of band-council elections to displace traditional governance, restrictions on legal counsel for land claims (1927 to 1951), the disenfranchisement provisions linking voting to renunciation of Indian status, and restrictions on women's status that stripped Indian status from women who married non-status men.

Several major amendments have addressed these injustices. Bill C-31 of 1985 responded to the United Nations Human Rights Committee's Lovelace v. Canada (1981) finding by restoring status to women who had married non-status men, and to their children. The Bill created two-tier 'second generation cut-off' rules that have themselves been challenged. Bill C-3 of 2011 (responding to McIvor v. Canada, 2009) and Bill S-3 of 2017 (responding to Descheneaux v. Canada, 2015) addressed continuing sex-based discrimination in status rules. Bill C-38 of 2024 took further steps, including ending second-generation cut-off effects.

Modern federal Indigenous-rights policy aims at moving beyond the Indian Act. The First Nations Land Management Act of 1999, the First Nations Fiscal Management Act of 2005, the First Nations Elections Act of 2014, and many self-government agreements (Sechelt 1986, Nisga'a 2000, Tla'amin 2016, Anishinabek Education 2017, Tsawwassen 2009) allow First Nations to opt out of specific Indian Act provisions. Section 35 of the Constitution Act, 1982, the federal United Nations Declaration on the Rights of Indigenous Peoples Act of 2021, and the Truth and Reconciliation Commission's 94 Calls to Action of 2015 set the broader framework for the Crown-Indigenous relationship.