Beyond the Indian Act

Beyond the Indian Act: Restoring Aboriginal Property Rights

Tom Flanagan
Christopher Alcantara
André Le Dressay
Copyright Date: 2010
Pages: 241
https://www.jstor.org/stable/j.ctt8058b
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  • Book Info
    Beyond the Indian Act
    Book Description:

    The authors not only investigate the current forms of property rights on reservations but also expose the limitations of each system, showing that customary rights are insecure, certificates of possession cannot be sold outside the First Nation, and leases are temporary. As well, analysis of legislation, court decisions, and economic reports reveals that current land management has led to unnecessary economic losses. The authors propose creation of a First Nations Property Ownership Act that would make it possible for First Nations to take over full ownership of reserve lands from the Crown, arguing that permitting private property on reserves would provide increased economic advantages. An engaging and well-reasoned book, Beyond the Indian Act is a bold argument for a new system that could improve the quality of life for First Nations people in communities across the country.

    eISBN: 978-0-7735-8183-8
    Subjects: Sociology

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. FOREWORD
    (pp. vii-xiv)
    Manny Jules

    Contrary to popular belief, Chief Joseph was not a war chief. He was a community chief. This statement reminds us that he understood that a community is a combination of innovative individuals and their willing commitment to community responsibilities. I use this quote often when I speak because our quest for individual freedom from the Indian Act and the Department of Indian Affairs will only be realized when we are able to look after our collective responsibility.

    This book is part of an agenda I have been pursuing all my adult life. We are trying to build a system of...

  4. ACKNOWLEDGMENTS
    (pp. xv-2)
  5. INTRODUCTION
    (pp. 3-10)

    Aboriginal people are the least prosperous demographic group in Canada. In life expectancy, income, unemployment, welfare dependency, educational attainment, and quality of housing, the pattern is the same: aboriginal people trail other Canadians. And within the category of aboriginal people, another pattern also stands out: First Nations (status Indians) do worse than Métis and non-status Indians; while among First Nations those living on-reserve do worse than those living off-reserve. These patterns have been more or less stable for decades. Aboriginal people and First Nations are progressing on most indicators compared to other Canadians, but the progress is painfully slow, and...

  6. 1 Property Rights in General
    (pp. 13-29)

    We are writing about the specific property rights issues of First Nations in Canada; but First Nations people are human beings, and the principles of biology and economics apply to them as much as they do to any other group of people. Hence we build a platform for understanding First Nations issues by providing a short, nontechnical introduction to property rights as understood in contemporary economics and evolutionary biology.

    We wish the following story were a legend, but unfortunately it’s true. After the end of World War II, the Department of National Defence built the Harvey Barracks as part of...

  7. 2 The Panorama of Indian Property Rights
    (pp. 30-41)

    An old and recurrent fantasy about American aboriginal peoples is that they had no conception of property. Christopher Columbus got the impression that “in that which one had, all took a share, especially of eatable things.”¹ The Baron de La Hontan, who had served as a soldier and explorer in the New World, wrote in 1703 inNew Voyages to North America:“TheSavagesare utter Strangers to distinctions of property, for what belongs to one is equally another’s.”²

    The same misconception cropped up in our own day in the speech allegedly given by Chief Seattle in 1854 but actually...

  8. 3 A Failed Experiment: The Dawes Act
    (pp. 42-54)

    Beginning with passage of the General Allocation Act (Dawes Act) in 1887, the United States experimented on a large scale with introducing private landownership onto Indian reservations. The experiment was concluded in 1934 with the passage of the Indian Reorganization Act (IRA) amid a general feeling, which still prevails today, that the experiment was a failure. Indeed, the reaction has been so intense that the Dawes Act is often held up as conclusive proof that any interest in individual property rights for aboriginal people is a token of sinister motives. We have to look more closely at that period of...

  9. 4 The Legal Framework of the Indian Act
    (pp. 57-72)

    Property rights on Canadian Indian reserves are governed by the Indian Act, an archaic piece of federal legislation passed in 1876 and still in operation today. This chapter examines the origins of individual property rights on Canadian Indian reserves by focusing on the historical evolution of the Indian Act. We begin by outlining British and Canadian Indian policy and the related colonial laws that preceded the Indian Act before discussing the regimes developed in the Indian Act of 1876 and beyond.

    Formal Indian administration in North America originated in the late seventeenth century when the British colonies appointed Indian commissioners...

  10. 5 Customary Land Rights on Canadian Indian Reserves
    (pp. 73-90)

    Leonard and Mary Anne Johnstone are members of the Mistawasis First Nation in Saskatchewan. They had been farming on the reserve since about 1960 when the band council decided in 2002 to repossess much of their land. At the time, the Johnstones controlled 33 quarter sections, more than one-sixth of the 192 quarter sections on the reserve. They held 13 of these quarters under certificates of possession issued by the minister of Indian Affairs, while the other 20 were “ad hoc” or “customary” holdings approved by band council resolutions at various times. For about ten years (1986–96), the Johnstones...

  11. 6 Certificates of Possession and Leases: The Indian Act Individual Property Regimes
    (pp. 91-107)

    Although the customary-rights system described in the previous chapter is the most widely used, it is not the only option available to First Nations. Since 1951, First Nations have had access to two statutory property rights systems: certificates of possession and leases. This chapter examines these systems in more detail. It begins by focusing on the certificate of possession system as it is currently used at the Six Nations Indian reserve near Brantford, Ontario, and ends by looking at the leasing system as it is used on reserves in Ontario, British Columbia, and Alberta.

    A certificate of possession is proof...

  12. 7 The First Nations Land Management Act: An Alternative to the Indian Act
    (pp. 108-120)

    For much of Canadian history, aboriginal peoples have had access only to the three property rights regimes discussed in the preceding chapters: customary rights, certificates of possession, and leases. In the early 1990s, however, a number of aboriginal groups became extremely dissatisfied with the current regimes and decided to meet with federal officials to discuss alternative strategies that would allow them to achieve more efficient, useful, and localized land management practices on their reserves. The result was the First Nations Land Management Act (FNLMA), a piece of federal legislation designed to allow First Nations to opt out of the land...

  13. 8 Why Markets Fail on First Nations Lands
    (pp. 123-136)

    Markets exist when voluntary exchanges take place between buyers and sellers, facilitated by informal and/or formal rules and infrastructure. Markets are social institutions, in which both parties recognize and receive a benefit from trade. They are able to realize this benefit because at least one of the parties has a competitive advantage in location, technology, labour, product, or service. Trade, however, cannot take place unless there is infrastructure to enable the exchange and rules to provide certainty about property ownership.

    The inhabitants of the Americas had markets long before any contact with European explorers and settlers. Recognizing the benefits of...

  14. 9 Escaping the Indian Act
    (pp. 137-159)

    In 1975, a meeting was held at Chilliwack, British Columbia, by the Union of BC Indian Chiefs, which at the time represented all First Nations communities in BC. The purpose of the meeting was almost unheard of: to reject government funds. The First Nations who attended wanted to escape the Indian Act and the Department of Indian Affairs above all. Almost as importantly, they also wanted to escape poverty. A number of prominent Indian leaders at the time, including Phillip Joe, Forrest Walkem, and Don Moses, spoke. One particular speaker, Willis Morgan, representing the Kitamaat Indian Band, cautioned that First...

  15. 10 Back to the Future: Restoring First Nations Property-Rights Systems
    (pp. 160-182)

    The Nisga’a Nation is located in northwestern BC, in the Nass Valley. To get to the Nisga’a Nation government from southern BC, you fly from Vancouver to Terrace; then you drive an hour along the new Nisga’a Highway 113 to the village of New Aiyansh, which, along with three other villages, is home to a total population within Nisga’a territory of roughly 2,500. Along the way you pass Nisga’a Memorial Lava Bed Park, the site of Canada’s last volcanic eruption, which occurred approximately 250 years ago.

    I (André Le Dressay), along with Manny Jules and Wayne Haimila, visited the Nisga’a...

  16. APPENDIX: ANNOUNCEMENT OF THE NISGA’A LANDHOLDING TRANSITION ACT
    (pp. 183-184)
  17. NOTES
    (pp. 185-214)
  18. INDEX
    (pp. 215-224)