Why is the Indian Act Still a Thing? A Case Study of Newfoundland’s Mi’kmaq

Why is the Indian Act Still a Thing?

To the average person, it may appear strange why an old colonial law, which carriesying the outdated term "Indian," remains one of the primary documents governing the legal relationship between First Nations and the Canadian Government. I am referring to Tthe Indian Act: , a law introduced in 1876 without the consent of Indigenous peoples. Its , with its primary goal  wasbeing, as Prime Minister John A Macdonald would later phrase it: , "to do away with the tribal system and assimilate the Indian people in all respects".[1] The subsequent decades of pain and suffering endured by Iindigenous peoples, be it through confinement to reserves, forced participation in the infamous residential school system, or the outlawing of cultural practices, were all enabled by the provisions of the Indian Act.

The denial of rights afforded to settler citizens by the Indian Act was intended to encourage Indigenous peoples to “enfranchise”. Enfranchisement was a policy whereby Indigenous people would abandon their Indigenous status, identity, and community. In exchange, they were afforded the same rights as settler citizens. Enfranchisement could occur through choice, but more often occurred automatically as a result ofdue to mixed- parentage, military service, or by travelling outside of Canada for an extended period. The policy, embedded within several of the registration (or ‘status’) provisions in the Indian Act,  had a particularly severe effect on Indigenous women, who, before 1985, would lose their Indian status (in addition to the status of any of their children) and automatically enfranchise if they married a settler man.

Presumably intent on reversing the decades of hardship and pain inflicted on Indigenous peoples by the Indian Act, the Canadian Government proposed to radically alter its "Indian policy" in 1969 when it introduced the "White Paper". Operating on the erroneous belief that the special legal status of Indigenous people was the root of their problem, the White Paper proposed to eliminate Indian status through athe dismantling of the Indian Act in addition to the treaties signed with First Nations. In essence, having failed to assimilate the country's Indigenous population forcibly, the Government opted for unilateral legal enfranchisement under the guise of legal equality.

This proposal, introduced without the consent of any Indigenous governments, served as thea catalyst which would breathe new life into the Indigenous struggle for self-government and recognition of their distinct legal status within Canada. The "Red Paper", a scathing retort to the Government's White Paper prepared by the Indian [sic] Chiefs of Alberta, asserted that for Indigenous people to be treated justly by the Canadian state, Indian status must continue to be recognized.[2] This assertion was based on the premise that for Indigenous peoples to be treated justly by the Canadian state and society, the "special rights, history, and circumstances" must be recognized by the Government.[3] The White Paper would be withdrawn the following year in response to the widespread backlash.

The perverse nature of the Indian Act is therefore made apparent. Indigenous peoples hold distinct legal rights either through treaties signed with the Crown or by virtue of being the original occupants of the land. These rights are entrenched in Canada's Constitution and have been upheld by Canadian courts. However, the Canadian state only permits the exercise of these rights to people and communities that it recognizes as being Indigenous. Generally speaking, for the First Nations of Canada, this recognition is legally established comes in the form of Indian status and and/or membership in a First Nations band – both of which are creatures of the Indian Act.

The Canadian state has gradually relinquished some of its control over determining who is and isn't Indigenous over the last four decades. Since 1985, First Nations band governments have been able to create their own membership codes, allowing with members to being entitled to band services regardless of whether or not they have Indian status. Furthermore, First Nations are able tocan opt out of the Indian Act entirely through the creation of modern treaties – a process whichthat often takes decades. It should also be noted that the Supreme Court of Canada recognized in Daniels v Canada (Indian Affairs and Northern Development) that non-status Indigenous people are "Indians" under s.91(24) of the Constitution Act and that the Federal Government owes them a fiduciary duty accordingly.

In spite of these developments, access to Indigenous services for First Nations people largely remainsremains contingent on membership in a band registered under the Indian Act. The creation of new bands under s.17 of the Act remains at the discretion of the Federal Government. Further, the conduct and general structure of band governments are constrained by the provisions of the Indian Act. As band governments often serve as the locus of Indigenous self-government and as a primary service provider to their community, whether an Indigenous community is recognized as a First Nations band can be vital to the livelihoods of community members.

In light of this, it is no longer difficult to see why the Indian Act has remainedremains in force today in, spite ofdespite its dark history, and why its proposed dismantlement in 1969 was so vehemently opposed. It remains the primary mechanism through which the Canadian state recognizes First Nations governments, thereby granting them the legal power to exercise self-government without repercussions. While a tool of paternal colonial power, registry under the Indian Act serves as a vital tool through which Indigenous communities can bolster their ability to govern themselves and assume legal jurisdiction over certain subject matters otherwise controlled by the federal and provincial governments.

Case Study: Newfoundland

The case of Newfoundland and Labrador provides a unique example of why the Indian Act still applies to Indigenous communities. From 1854 to 1949, Newfoundland was a self-governing colony , and later, a country that was subject to Britain yet separate from Canada. Following two referendums in 1948, Newfoundland joined the confederation as Canada's tenth province. While Canada's Indigenous policy was historically one of direct control and abuse, during its time as a separate country, Newfoundland's policy towards its Indigenous inhabitants would be one of near categorical ignorance and neglect.

The lack of an Indigenous policy in pre-confederation Newfoundland meant that the province's three extant Indigenous groups, those being the Inuit and Innu of Labrador and Mi'kmaq of Newfoundland, were already “enfranchised” under Newfoundland law.[4] As the gradual assimilation of Indigenous peoples remained Canada's goal in 1949, Newfoundland's Terms of Union with Canada entirely ignored the province's Indigenous inhabitants. Therefore, the Indian Act would not initially apply to Newfoundland, and the old policy of neglect continued for several more decades.

Newfoundland's policy of pursuing rapid economic and industrial development in the two decades following confederation would have a severely negative impact on the province's Indigenous inhabitants as settler control over their livelihoods increased. These changing circumstances, combined with a revitalized Indigenous rights movement following the White Paper, spurred the province's Indigenous people to seek recognition of their rights as Indigenous peoples. The Native Association of Newfoundland and Labrador (NANL) was formed in 1973 to represent the non-status Indigenous people of the province. The Inuit and Innu would both withdraw from the NANL soon after to pursue closer ties with organizations representing their own peoples, and so the NANL rebranded to the Federation of Newfoundland Indians (FNI), representing the Mi'kmaw population of the Island.[5]

The Mi’kmaq of Ktaqmkuk

Mi'kmaw oral history stipulates that Newfoundland (Ktaqmkuk) has always traditionally been a part of Mi'kma'ki, the ancestral territory of the Mi'kmaq. Following the Treaties of Peace and Friendship signed between the Mi'kmaq and the British Crown in the mid-eighteenth century, a noticeable influx of Mi'kmaq travelled from Cape Breton Island (Unama'ki) to Newfoundland, settling  and settled along the South and Western coasts. As forwith most of Newfoundland's colonial history, the settler population was concentrated almost entirely on the Avalon Peninsula in the East, and so the Mi'kmaq lived undisturbed across the Island's vast interior until European settlement began to rapidly increase rapidly in the second half of the nineteenth century.

The increased influx of European settlers to the Island's interior following the completion of the Newfoundland railway in 1898 would markedly change the livelihoods of most Mi'kmaq communities. As Dorothy Anger notes, "regulation and decline of fish stocks and caribou herds, combined with increase white settlement and industrialization, crippled the Micmac [sic] way of life."[6] Some isolated communities, such as Conne River (Miawapukek) and Flat Bay (Ewipkek), remained free from government oversight and maintained their traditional way of life for years after Confederation with Canada. It is, therefore, unsurprising that these communities would be the driving force behind the Indigenous rights movement in Newfoundland. However, most communities would become intertwined with settler society, with intermarriage being commonplace.[7]

The lack of an Indigenous policy, combined with the upheaval of their traditional livelihood, meant that the Mi'kmaq became reliant on a capitalist settler economy to survive. Racism by settler employers would result in many Mi'kmaq suppressing their Indigenous identity and heritage, thereby further integrating their communities into settler society. In summary, while the Indian Act failed in its goal of achieving the assimilation of Indigenous peoples, Newfoundland's unofficial policy of neglect resulted in a substantial loss of culture for the Mi'kmaq of the Island and assimilation into settler society.

The Fight for Recognition

Miawapukek has historically been the largest and most visibly visible Mi'kmaq community on the Island, tso muchthe soextent that the Newfoundland government briefly considered creating a reserve there in the nineteenth century. It would be party to the Canada/Newfoundland native peoples’ agreement alongside the Inuit and Innu in 1973, which provided funds for the provision of municipal services over a period of 30 years. Miawapukek would asked that the other Mi'kmaw communities be designated as "Native" as well.[8] This was ignored. In 1981, a tripartite agreement would provided annual funds to the community, and the following year, Miawapukek would again askrequested forthat the other Mi'kmaw communities to be included under the agreement, but again, to no avail.[9] The goal for both Miawapukek and the rest of the FNI then shifted to band formation under s.17 of the Indian Act.

TIn 1981, the Minister of Indian Affairs in 1981 provided guarantees to Mi'kmaq leadership that registry under the Indian Act would occur between 1981 and 1986 for all of those it deemed eligible. However, only members of the unrecognized Miawapukek band would receive Indian status, with a reserve being created in their community in 1986. Thus, while over five hundred Mi'kmaq finally received formal recognition of their rights as Indigenous people and the resulting supports and funds through which to govern themselves, the over four thousand members of the FNI outside of Miawapukek remained unrecognized.

With its political options seemingly expended, the FNI's member bands brought legal action against the federal Government in 1989 for breaching its fiduciary duty and requested that its membership be declared Status Indians. They would likewise later file a complaint with the Canadian Human Rights Commission (CHRC). The combination of litigation and a report generated by the CHRC confirming the validity of the FNI's Mi'kmaw identity resulted led into the Government beginning negotiations for legal recognition of the FNI's membership in 2003. The result would be an Agreement in Principle (AIP) for the formation of a landless band under s.17 of the Indian Act called Qalipu First Nation, which was officially created in 2011. The process for determining band membership was retroactively changed from the original process in the AIP to a controversial points-based system in 2013 after far more applicants than expected applied. Litigation asresulting afrom resultthe revocation of the Indian status revoked in 2013 is still ongoing.

The Results of Recognition

At the end of this brief account of Mi'kmaw history in Newfoundland, we can return to the original question posedasked at the beginning of this blog post: why is the Indian Act still a thing? Both Miawapukek, the FNI, Qalipu, and the Innu in Labrador underwent decades of litigation, human rights complaints, protests, land claim negotiations, and more, all for the sake of being recognized by a colonial law with an outdated name. Why, then, did these groups see the Indian Act registry as a goal worth pursuing?

The revitalization of Indigenous culture in Newfoundland and Labrador since the creation of the NANL, and especially in more recent years as the Federal and Provincial governments were gradually brought to the negotiating table, has been substantial. The Innu and Mi'kmaw of Miawapukek now enjoy limited self-government over their peoples through band councils and are thereby able to provide services to their people run by and for their community members. The original constituent bands of the FNI still exist as unrecognized corporations providing cultural and spiritual services to their communities and have been receiving increased funding to do so, despite their lack of formal recognition. The members of Qalipu First Nation registered under the Indian Act, while denied a landed reserve, nevertheless, enjoy a wide range of services provided by the band – notably in the areas of health and education funding. For the most marginalized communities in what has historically been Canada's poorest province, the benefits of these services should not be understated. Finally, the band governments foster a collective sense of community amongst band members both in a political, cultural, and spiritual sense, particularly for Indigenous people in communities dominated by a settler population.

Conclusion – Why the Indian Act is Still a Thing

In conclusion, pursuing band formation and Indian status registry under the Indian Act (or, for most First Nations, maintaining it) provides a tangible means in the short term for Indigenous communities to govern themselves and receive regular funding through which to do so. Furthermore, the legitimization of their Indigenous identity in Canadian law provides a respite from decades, if not centuries, of neglect and solidifies their status as individual and collective rights holders under s.35 of the Constitution Act. However, existing as a band under the Indian Act in perpetuity is not the ultimate end goal for most First Nations – it is merely a step along the path to returning toachieving full self-government, as they had enjoyed before settlers arrived.

Elder Calvin White, one of Newfoundland's foremost Mi'kmaw advocates and founder of the NANL, stated on the 75th Anniversary of the province's Confederation with Canada: "There's nothing really for me to celebrate. There's nothing for me to be excited about. We still have unfinished business."[10] Since the Newfoundland Court of Appeals decision in Newfoundland (Minister of Government Services and Lands) v Drew 2006 NLCA 53, the Treaties of Peace and Friendship, in addition to the aboriginal title, have not been recognized as applying to Newfoundland under Canadian law. Land rights, treaty rights, and land claims are all unsettled questions for the Mi'kmaq of Newfoundland, with reserve creation and control over membership being further unsettled issues unsettled for Qalipu band members and non-status Indians represented by the FNI. While the road to solving these issues likely remains a long and arduous one, the centralization of political power in the recognized band governments provides funding to fight these issues and direct benefits through the provision of services in the meantime. The case of Newfoundland and Labrador demonstrates that while the Indian Act is not and never shall be loved by Indigenous peoples, in the face of governments reluctant to extend legal rights and settle modern treaties – the status quo of governance under the Indian Act's provisions is better than the alternative of neglect.

[1] Erin Hanson “The Indian Act” (n.d.), online (website): https://indigenousfoundations.arts.ubc.ca/the_indian_act/ 

[2] Indian Chiefs of Alberta, “Citizens Plus” (1970) 1:1 Aboriginal Policy Studies (2011) 188 at 192 [Red Paper]. 

[3] Ibid at 192.

[4]  It is important to note the Beothuk people who were Indigenous to the island of Newfoundland became extinct in the early nineteenth century as a result of increased European presence on the Island.  

[5] The Inuit would successfully ratify a land claims agreement with the federal and provincial government in 2005, resulting in the creation of an autonomous Nunatsiavut Government in Northern Labrador. Through pursuing both a land claims agreement and human rights complaint the Innu would eventually result in the Federal Government creating two Innu band governments (Sheshatshiu and Natuashish) under s.17 of the Indian Act in 2002.

[6] Dorothy Anger “Putting it Back Together: Micmac Political Identity in Newfoundland” (1983), Masters Thesis, Department of Anthropology – Memorial University of Newfoundland at 67.

[7] The pejorative term “jackotar” (pronounced “jackie-tar”) is a term unique to Newfoundland used to describe people of mixed Mi’kmaq and settler descent, particularly of French-Mi'kmaq descent.

[8] Maura Hanrahan, The Lasting Breach: The Omission of Aboriginal People From the Terms of Union Between Newfoundland and Canada and its Ongoing Impacts, (Royal Commission on Renewing and Strengthening Our Place in Canada, Government of NL, 2003) at 267.

[9] It should be noted the Newfoundland government would withhold its portion of the funding if it disagreed with how the Mi’kmaq were spending it. Miawapukek Chief Mi’sel Joe and eleven others would go on a hunger strike in protest of the funds being withheld.

[10] Bernice Hillier, “Confederation anniversary is no cause to celebrate, says Mi’kmaw elder” (1 April 2024), online (CBC news article): https://www.cbc.ca/news/canada/newfoundland-labrador/mi-kmaq-confederation-anniversary-newfoundland-1.7158585