Mohawk Council of Akwesasne Entewatathawi "We Will Govern"

By Sawentanon Skidders

THE INDIAN ACT (1876)

Introduction

The Indian Act is a Canadian federal law that allows the government to control and govern areas pertaining to Indian status, bands, wills, education and Indian reserves to name a few. Its primary purpose was (and is) to control and assimilate First Nations into mainstream society. It was intended to be a temporary set of laws until Native peoples were successfully assimilated. Since its enactment the piece of legislation has been paternalistic and invasive due to the authority the Canadian government has in regulating and administering the affairs and day-to-day lives of registered Indians. The Indian Act is a primary document on how the Canadian Government interacts with all First Nations in Canada. Throughout history the Act has been an ongoing subject of controversy and has been interpreted in different ways by both First Nations and Canadians.

The Indian Act & Akwesasne

Since 1987 Akwesasne has been taking on more responsibilities towards taking over more control over sections in the Indian Act. Currently, the Indian Act controls nearly 71% of all Akwesasne affairs. Akwesasne only controls 29%. This includes the Membership Code which was passed in 1987 and the Election Law passed in 1988. The Act places inadequacies on three fundamental areas

• Peoples

• Lands and Resources

• Governance

Under sections 5 to 14 within the Indian Act set out rules under which a person may be recognized as an “Indian” as well as rules under which a person may be recognized as a member of a specific Band. Under sections 42 to 50, the Minister of Indian Affairs has full jurisdiction and authority to matters relating to wills. Under S. 52 the Minister also has the authority to administer any property an Indian child may be entitled to. Sections 114 to 122 shows the power the Minster has in relation to education of Indian children.

Lands and Resources is another area that the Indian Act places power to the Minster. Sections 18 to 41 deal with Lands and resources. A few key sections are: Section 18 that authorizes the Minister the use of reserve lands for schools, burial grounds and administration. Section 19 allows the Minister to authorize surveys of the reserve, divide reserve into lots and locations for roads on reserves. Section 20 provides that no Indian is in lawful possession of lands on reserve unless the consent of the Minister is obtained. Section 37 to 41 deal with land leases of community land where a community vote is required as well as the Ministers approval. There are several other examples in the Indian Act that places significant control over lands and resources that rests with the Minister of Indian Affairs.

Governance is another fundamental area that has been viewed as a failed model towards First Nations governance. A close examination of the Act will provide further examples that control over governance issues rest largely with the Minister. However, there are mechanism for First Nations to establish its own election law if it is approved by their membership and accepted by the Minister as long as it does not breach the Charter of Rights and Freedoms; the First Nation’s election law will replace Indian Act provisions. This was done with the Akwesasne Election Law and the Akwesasne Membership Law.

Future of the Indian Act

Over the last 40 years the Mohawks of Akwesasne have been working towards reducing the presence of the Indian Act. Currently, Akwesasne is negotiating a self-government agreement that will eliminate the majority of sections within the Act that deal with lands and resources and governance. However, remaining sections that will continue to apply will include sections 29 (exemption from seizure); 87 (property exempt from taxation); 89 (restriction on mortgage, seizure, etc., of property on reserve); 90 (Property deemed situated on reserve). Akwesasne is also working towards passing a Governance Code and Land Code. The Governance Code is a legal framework that deals with Council through Membership, Council Procedures, Elections, Referendums, Financial Management and Amendments. The Land Code is similar in how it will replace sections within the Indian Act. The Land Code is also a framework that will control the management of lands and resources compared to having these areas administered by the federal government. These are the steps the Mohawks of Akwesasne are taking to reduce the presence of the Indian Act.