Indian Act (R.S.C., 1985, c. I-5)

Short Title

Marginal note:Short title

1 This Act may be cited as the Indian Act.

Interpretation

Marginal note:Definitions

• 2 (1) In this Act,

  band

  band means a body of Indians

  • (a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,

  • (b) for whose use and benefit in common, moneys are held by Her Majesty, or

  • (c) declared by the Governor in Council to be a band for the purposes of this Act; (bande)

  Band List

  Band List means a list of persons that is maintained under section 8 by a band or in the Department; (liste de bande)

  child

  child includes a legally adopted child and a child adopted in accordance with Indian custom; (enfant)

  common-law partner

  common-law partner, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year; (conjoint de fait)

  council of the band

  council of the band means

  • (a) in the case of a band to which section 74 applies, the council established pursuant to that section,

  • (b) in the case of a band that is named in the schedule to the First Nations Elections Act, the council elected or in office in accordance with that Act,

  • (c) in the case of a band whose name has been removed from the schedule to the First Nations Elections Act in accordance with section 42 of that Act, the council elected or in office in accordance with the community election code referred to in that section, or

  • (d) in the case of any other band, the council chosen according to the custom of the band, or, if there is no council, the chief of the band chosen according to the custom of the band; (conseil de la bande)

  Department

  Department means the Department of Indigenous Services; (ministère)

  designated lands

  designated lands means a tract of land or any interest therein the legal title to which remains vested in Her Majesty and in which the band for whose use and benefit it was set apart as a reserve has, otherwise than absolutely, released or surrendered its rights or interests, whether before or after the coming into force of this definition; (terres désignées)

  elector

  elector means a person who

  • (a) is registered on a Band List,

  • (b) is of the full age of eighteen years, and

  • (c) is not disqualified from voting at band elections; (électeur)

  estate

  estate includes real and personal property and any interest in land; (biens)

  Indian

  Indian means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian; (Indien)

  Indian moneys

  Indian moneys means all moneys collected, received or held by Her Majesty for the use and benefit of Indians or bands; (argent des Indiens)

  Indian Register

  Indian Register means the register of persons that is maintained under section 5; (registre des Indiens)

  intoxicant

  intoxicant includes alcohol, alcoholic, spirituous, vinous, fermented malt or other intoxicating liquor or combination of liquors and mixed liquor a part of which is spirituous, vinous, fermented or otherwise intoxicating and all drinks, drinkable liquids, preparations or mixtures capable of human consumption that are intoxicating; (boisson alcoolisée)

  member of a band

  member of a band means a person whose name appears on a Band List or who is entitled to have his name appear on a Band List; (membre d’une bande)

  mentally incompetent Indian

  mentally incompetent Indian means an Indian who, pursuant to the laws of the province in which he resides, has been found to be mentally defective or incompetent for the purposes of any laws of that province providing for the administration of estates of mentally defective or incompetent persons; (Indien mentalement incapable)

  Minister

  Minister means the Minister of Indigenous Services; (ministre)

  registered

  registered means registered as an Indian in the Indian Register; (inscrit)

  Registrar

  Registrar means the officer in the Department who is in charge of the Indian Register and the Band Lists maintained in the Department; (registraire)

  reserve

  reserve

  • (a) means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band, and

  • (b) except in subsection 18(2), sections 20 to 25, 28, 37, 38, 42, 44, 46, 48 to 51 and 58 to 60 and the regulations made under any of those provisions, includes designated lands; (réserve)

  superintendent

  superintendent includes a commissioner, regional supervisor, Indian superintendent, assistant Indian superintendent and any other person declared by the Minister to be a superintendent for the purposes of this Act, and with reference to a band or a reserve, means the superintendent for that band or reserve; (surintendant)

  surrendered lands

  surrendered lands means a reserve or part of a reserve or any interest therein, the legal title to which remains vested in Her Majesty, that has been released or surrendered by the band for whose use and benefit it was set apart; (terres cédées)

  survivor

  survivor, in relation to a deceased individual, means their surviving spouse or common-law partner. (survivant)

• Marginal note:Definition of band

  (2) The expression band, with reference to a reserve or surrendered lands, means the band for whose use and benefit the reserve or the surrendered lands were set apart.

• Marginal note:Exercise of powers conferred on band or council

  (3) Unless the context otherwise requires or this Act otherwise provides,

  • (a) a power conferred on a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors of the band; and

  • (b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened.

Administration

Marginal note:Superintendent general

3 The Minister of Indigenous Services shall be the superintendent general of Indian affairs.

Application of Act

Marginal note:Application of Act

• 4 (1) A reference in this Act to an Indian does not include any person of the race of aborigines commonly referred to as Inuit.

• Marginal note:Act may be declared inapplicable

  (2) The Governor in Council may by proclamation declare that this Act or any portion thereof, except sections 5 to 14.3 or sections 37 to 41, shall not apply to

  • (a) any Indians or any group or band of Indians, or

  • (b) any reserve or any surrendered lands or any part thereof,

  and may by proclamation revoke any such declaration.

• Marginal note:Authority confirmed for certain cases

  (2.1) For greater certainty, and without restricting the generality of subsection (2), the Governor in Council shall be deemed to have had the authority to make any declaration under subsection (2) that the Governor in Council has made in respect of section 11, 12 or 14, or any provision thereof, as each section or provision read immediately prior to April 17, 1985.

• Marginal note:Certain sections inapplicable to Indians living off reserves

  (3) Sections 114 to 117 and, unless the Minister otherwise orders, sections 42 to 52 do not apply to or in respect of any Indian who does not ordinarily reside on a reserve or on lands belonging to Her Majesty in right of Canada or a province.

Marginal note:Provisions that apply to all band members

4.1 A reference to an Indian in any of the following provisions shall be deemed to include a reference to any person whose name is entered in a Band List and who is entitled to have it entered therein: the definitions band, Indian moneys and mentally incompetent Indian in section 2, subsections 4(2) and (3) and 18(2), sections 20 and 22 to 25, subsections 31(1) and (3) and 35(4), sections 51, 52, 52.2 and 52.3, subsections 58(3) and 61(1), sections 63 and 65, subsections 66(2) and 70(1) and (4), section 71, paragraphs 73(g) and (h), subsection 74(4), section 84, paragraph 87(1)(a), section 88, subsection 89(1) and paragraph 107(b).

Definition and Registration of Indians

Indian Register

Marginal note:Indian Register

• 5 (1) There shall be maintained in the Department an Indian Register in which shall be recorded the name of every person who is entitled to be registered as an Indian under this Act.

• Marginal note:Existing Indian Register

  (2) The names in the Indian Register immediately prior to April 17, 1985 shall constitute the Indian Register on April 17, 1985.

• Marginal note:Deletions and additions

  (3) The Registrar may at any time add to or delete from the Indian Register the name of any person who, in accordance with this Act, is entitled or not entitled, as the case may be, to have his name included in the Indian Register.

• Marginal note:Date of change

  (4) The Indian Register shall indicate the date on which each name was added thereto or deleted therefrom.

• Marginal note:Application for registration

  (5) The name of a person who is entitled to be registered is not required to be recorded in the Indian Register unless an application for registration is made to the Registrar.

• Marginal note:Unknown or unstated parentage

  (6) If a parent, grandparent or other ancestor of a person in respect of whom an application is made is unknown — or is unstated on a birth certificate that, if the parent, grandparent or other ancestor were named on it, would help to establish the person’s entitlement to be registered — the Registrar shall, without being required to establish the identity of that parent, grandparent or other ancestor, determine, after considering all of the relevant evidence, whether that parent, grandparent or other ancestor is, was or would have been entitled to be registered. In making the determination, the Registrar shall rely on any credible evidence that is presented by the applicant in support of the application or that the Registrar otherwise has knowledge of and shall draw from it every reasonable inference in favour of the person in respect of whom the application is made.

• Marginal note:No presumption

  (7) For greater certainty, if the identity of a parent, grandparent or other ancestor of an applicant is unknown or unstated on a birth certificate, there is no presumption that this parent, grandparent or other ancestor is not, was not or would not have been entitled to be registered.