Indian Act By-Laws and Self-Determination
Today on the blog, we are examining by-laws created by First Nations pursuant to the Indian Act. By-laws created by individual First Nations for individual First Nations can be incredibly useful, as they not only prioritize the unique needs of that particular reserve, but can also incorporate the Indigenous legal orders of that Nation, with the hope that this will lead to more positive outcomes.
As I am sure most of our readers know, the Indian Act was a legislative tool created by the Canadian government to control and assimilate First Nations peoples. Since its introduction, the Indian Act has been characterized as utterly racist and sexist, with compounding effects on Indigenous women. Although it has been amended countless times, its harmful effects persist. But, I digress, as this is beyond the scope of the article today.
A First Nation by-law under the Indian Act “is a local law that is passed by a First Nation council, similar to a municipality, to regulate affairs within its community.” Many First Nations have taken advantage of this ability to manage their own affairs. Although this does sound good on its face, it is important to note that these by-laws can only be created in relation to “matters that are local in nature to the reserve, such as traffic control, residency, public health, nuisances, and wildlife control.” Due to the limited scope, the federal government retains much of the power to control the “bigger picture” of life on a reserve. This retention of power, of course, is no accident, and acts as a way for the Canadian state to stifle the exercise of the inherent self-determination of First Nations.
Some have argued, however, that Indian Act by-laws can be an important tool for First Nations to reassert control over their affairs, at least as an interim solution until better options are available. Naoimi Metallic uses the example of the Spallumcheen First Nation (now called Spalts’in First Nation) in British Columbia. In 1980, the Nation used the by-law making powers under the Indian Act to create a by-law governing child welfare on their reserve. The Splats’in First Nation worked to categorize this child welfare by-law into their existing by-law authority by referring to their power over health and the observance of law and order.
Photo Credit: 1980 Protests by Spallumcheen First Nation for Control Over Child Welfare <https://splatsin.ca/programs-services/children-families>.
Despite the Splats’in First Nation’s creative approach to gaining control over their child welfare regulations, and although this by-law has puzzlingly never been challenged by the Canadian courts and remains in force, other First Nations have been unsuccessful, with Indigenous Relations and Northern Affairs Canada (as the department was then called) “unwilling to permit any other similar by-laws.”
Since Naiomi Metallic’s 2016 consideration of Indian Act by-laws as a viable means for First Nations to control their own affairs, there have been continuing developments in the area of Indigenous self-determination. We continue to see self-government agreements and modern treaties being negotiated from coast to coast between Canada and various Indigenous nations. In addition, the introduction of Bill C-92 (Act respecting First Nations, Inuit, and Métis children, youth and families) in 2020 has placed more power into the hands of Indigenous nations respecting their children (more on this later this week). However, despite the progress since 2016, the negotiations are famously slow, expensive, and potentially vulnerable to changes in federal political authority.
As more nation-to-nation agreements are reached between the Canadian government and Indigenous nations, it makes one wonder whether the creation of by-laws under the Indian Act remains the best option for First Nations to govern their own affairs. Although I agree with Metallic that by-laws created under the Indian Act may be an acceptable interim solution, I think that the overwhelming negative history of the Act, coupled with enforceability issues and the power retained by the Canadian government to change a Nation’s by-law-making power at any time, suggests to me that the ultimate effort should be put into obtaining long-term solutions and continuing to push for recognition of self-determination on a deeper and more meaningful level.
Until next time,
Team Reconcili-ACTION YEG
 “Indian Act” (accessed 10 February 2023), online: Native Women’s Association of Canada <nwac.ca/policy/indian-act#:~:text=The%20Indian%20Act%20was%20created,experienced%20longstanding%20and%20stubborn%20discrimination.>.  Government of Canada, “Changes to By-laws” (last modified 27 January 2015), online: Government of Canada <www.sac-isc.gc.ca/eng/1421864597523/1565371978843>.  Ibid.  Naiomi Metallic, “Indian Act By-Laws: A Viable Means for First Nations to (Re)Assert Control Over Local Matters Now and Not Later” (2016) 67 UNBLJ 211.  “First Nations in BC: Splatsin First Nation” (accessed 11 February 2023), online: British Columbia Assembly of First Nations <www.bcafn.ca/first-nations-bc/thompson-okanagan/splatsin-first-nation>.  Supra note 4 at 218-219.  Ibid.  Ibid at 220.  Government of Canada, “Self-Government” (last modified 25 August 2020), online: Government of Canada: Crown-Indigenous Relations and Northern Affairs Canada <www.rcaanc-cirnac.gc.ca/eng/1100100032275/1529354547314>.  Nick Sowsun, “Solving the Indian Act by-law enforcement issue: Prosecution of Indian Act by-laws” (accessed 11 February 2023), online (blog): Olthuis Kleer Townshend LLP <www.oktlaw.com/solving-the-indian-act-by-law-enforcement-issue-prosecution-of-indian-act-by-laws/>.  Supra note 4 at 218.