[Assented to 12th April, 1876.]
WHEREAS it is expedient to amend and consolidate the laws
respecting Indians: Therefore Her Majesty, by and with the advice and
consent of the Senate and House of Commons of Canada, enacts as
follows: -
1. This Act shall be known and may be cited as "The Indian Act,
1876;" and shall apply to all the Provinces, and to the North West
Territories, including the Territory of Keewatin.
2. The Minister of the Interior shall be Superintendent-General of
Indian Affairs, and shall be governed in the supervision of the said
affairs, and in the control and management of the reserves, lands,
moneys and property of Indians in Canada by the provisions of this
Act.
terms.
3. The following terms contained in this Act shall be held to have the
meaning hereinafter assigned to them, unless such meaning be
repugnant to the subject or inconsistent with the context: -
1. The term "band" means any tribe, band or body of Indians who
own or are interested in a reserve or in Indian lands in common, of which
the legal title is vested in the Crown, or who share alike in the distribution
of any annuities or interest moneys for which the Government of Canada
is responsible; the term "the band" means the band to which the context
relates; and the term "band," when action is being taken by the band as
such, means the band in council.
2. The term "irregular band" means any tribe, band or body of
persons of Indian blood who own no interest in any reserve or lands of
which the legal title is vested in the Crown, who possess no common
fund managed by the Government of Canada, or who have not had any
treaty relations with the Crown.
3, The term "Indian" means
First. Any male person of Indian blood reputed to belong to a particular band;
Secondly. Any child of such person;
Thirdly. Any woman who is or was lawfully married to such person:
(a) Provided that any illegitimate child, unless having shared with the
consent of the band in the distribution moneys of such band for a period
exceeding two years, may, at any time, be excluded from the
membership thereof by the band, if such proceeding be sanctioned by
the Superintendent-General:
(b). Provided that any Indian having for five years continuously resided in a
foreign country shall with the sanction of the Superintendent-General, cease to
be a member thereof and shall not be permitted to become again a member
thereof, or of any other and, unless the consent of the band with the approval of the
Superintendent-General or his agent, be first had and obtained; but this provision
shall not apply to any professional man, mechanic, missionary, teacher or
interpreter, while discharging his or her duty as such:
(c) Provided that any Indian woman marrying any other than an
Indian or a non-treaty Indian shall cease to be an Indian in any respect
within the meaning of this Act, except that she shall be entitled to share
equally with the members of the band to which she formerly belonged, in the annual
or semi-annual distribution of their annuities, interest moneys and rents; but this
income may be commuted to her at any time at ten years' purchase with the
consent of the band:
(d) Provided that any Indian woman marrying an Indian of any other
band, or a non-treaty Indian shall cease to be a member of the band to
which she formerly belonged. and become a member of the band or irregular band
of which her husband is a member:
(e) Provided also that no half-breed in Manitoba who has
shared in the distribution of half-breed lands shall be accounted
an Indian; and that no half-breed of a family (except the widow of an
Indian, or a half-breed who has already been admitted into a treaty), shall, unless
under very special circumstances, to be determined by the Superintendent-General
or his agent, be accounted an Indian, or entitled to be admitted into any Indian
treaty.
4 The term "non-treaty Indian" means any person of Indian blood who
is reputed to belong to an irregular band. or who follows the Indian mode
of life, even though such person be only a temporary resident in Canada.
5. The term "enfranchised Indian" means any Indian, his wife or
minor unmarried child, who has received letters patent granting him in
fee simple any portion of the reserve which may have been allotted to him, his wife
and minor children, by the band to which he belongs, or any unmarried Indian who
may have received letters patent for an allotment of the reserve.
6. The term "reserve" means any tract or tracts of land set apart by
treaty or otherwise for the use or benefit of or granted to a particular band of
Indians, of which the legal title is in the Crown, but which is unsurrendered, and
includes all the trees, wood, timber, soil stone, minerals, metals, or other valuables
thereon or therein.
7. The term "special reserve" means any tract or tracts of land and
everything belonging thereto set apart for the use or benefit of any band or irregular
band of Indians, the title of which is vested in a society, corporation or community
legally established, and capable of suing and being sued, or in a person or persons
of European descent, but which land is held in trust for, or benevolently allowed to
be used by, such band or irregular band of Indians.
8. The term "Indian lands" means any reserve or portion of a reserve
which has been surrendered to the Crown.
9. The term "intoxicants" means and includes all spirits, strong
waters, spirituous liquors, wines, or fermented or compounded liquors or intoxicating
drink of any kind whatsoever, and any intoxicating liquor or fluid, as also opium and
any preparation thereof, whether liquid or solid, and any other intoxicating drug or
substance, and tobacco or tea mixed or compounded or impregnated with opium
or with other intoxicating drugs, spirits or substances, and whether the same or any
of them be liquid or solid
10. The term "Superintendent-General" means the Superintendent-General
of Indian Affairs.
11. The term "agent" means a commissioner, superintendent, agent, or
other officer acting under the instructions of the Superintendent-General.
12. The term "person" means an individual other than an Indian, unless the
context clearly requires another construction.
reserves.
4. All reserves for Indians or for any band of Indians, or held in trust for their
benefit, shall be deemed to be reserved and held for the same purposes as
before the passing of this Act, but subject to its provisions.
5. The Superintendent-General may authorize surveys, plans and reports
to be made of any reserves for Indians, shewing and distinguishing the
improved lands, the forests and land fit for settlement, and such other information as may
be required; and may authorize that the whole or any portion of a reserve be subdivided
into lots.
6. In a reserve, or portion of a reserve, subdivided by survey into lots, no
Indian shall be deemed to be lawfully in possession of one or more of such lots,
or part of a lot, unless he or she has been or shall be located for the same by
the band, with the approval of the Superintendent-General:
Provided that no Indian shall be dispossessed of any lot or part of a lot, on
which he or she has improvements, without receiving compensation therefor, (at
a valuation to be approved by the Superintendent-General) from the Indian who
obtains the lot or part of a lot, or from the funds of the band, as may be determined by the
Superintendent-General.
7. On the Superintendent-General approving of any location as aforesaid, he
shall issue in triplicate a ticket granting a location title to such Indian, one
triplicate of which he shall retain in a book to be kept for the purpose; the other
two he shall forward to the local agent, one to be delivered to the Indian in whose favor it
was issued, the other to be filed by the agent, who shall permit it to be copied into the
register of the band, if such register has been established:
8. The conferring of any such location title as aforesaid shall not have the
effect of rendering the land covered thereby subject to seizure under legal
process, or transferable except to an Indian of the same band, and in such case, only with
the consent of the council thereof and the approval of the Superintendent-General, when
the transfer shall be confirmed by the issue of a ticket in the manner prescribed in the next
preceding section.
9. Upon the death of any Indian holding under location or other duly
recognised title any lot or parcel of land, the right and interest therein of such
deceased Indian shall, together with his goods and chattels, devolve one-third
upon his widow, and the remainder upon his children equally; and such children
shall have a like estate in such land as their father; but should such Indian die
without issue but leaving a widow, such lot or parcel of land and his goods and
chattels shall be vested in her, and if he leaves no widow, then in the Indian nearest
akin to the deceased, but if he have no heir nearer than a cousin, then the same
shall be vested in the Crown for the benefit of the band: But whatever may be
the final disposition of the land, the claimant or claimants shall both be held to
be legally in possession until they obtain a location ticket from the Superintendent-General in the manner prescribed in the case of new locations.
10. Any Indian or non-treaty Indian in the Province of British
Columbia, the Province of Manitoba, in the North-West Territories, or in
the Territory of Keewatin, who has, or shall have, previously to the
selection of a reserve, possession of and made permanent
improvements on a plot of land which has been or shall be included in or
surrounded by a reserve, shall have the same privileges, neither more nor less, in
respect of such plot, as an Indian enjoys who holds under a location title.
protection of reserves.
11. No person, or Indian other than an Indian of the band, shall
settle, reside or hunt upon, occupy or use any land or marsh, or shall
settle, reside upon or occupy any road, or allowance for roads running through any
reserve belonging to or occupied by such band; and all mortgages or
hypothecs given or consented to by any Indian, and all leases, contracts
and agreements made or purported to be made by any Indian, whereby
persons or Indians other than Indians of the band are permitted to reside or hunt
upon such reserve, shall be absolutely void.
12. If any person or Indian other than an Indian of the band, without
the license of the Superintendent-General (which license, however, he
may at any time revoke), settles, resides or hunts upon or occupies or
uses any such land or marsh; or settles, resides upon or occupies any such roads
or allowances for roads, on such reserve, or if any Indian is illegally in possession
of any lot or part of lot in a subdivided reserve, the Superintendent-General or such
officer or person as he may thereunto depute and authorize, shall, on complaint
made to him, and on proof of the fact to his satisfaction, issue his warrant signed
and sealed, directed to the sheriff of the proper county or district, or if the said
reserve be not situated within any county or district or if the said reserve be not
situated within any county or district, then directed to any literate person willing to
act in the premises, commanding him forthwith to remove from the said land or
marsh, or roads or allowances for roads, or lots or parts of lots, every such person
or Indian and his family so settled, residing or hunting upon or occupying, or being
illegally in possession of the same, or to notify such person or Indian to cease using
as aforesaid the said lands, marshes, roads or allowances for roads; and such
sheriff or other person shall accordingly remove or notify such person or Indian, and
for that purpose shall have the same powers as in the execution of criminal process;
and the expenses incurred in any such removal or notification shall be
borne by the party removed or notified, and may be recovered from him
as the costs in any ordinary suit:
Provided that nothing contained in this Act shall prevent an Indian or
non-treaty Indian, if five years a resident in Canada, not a member of the
band, with the consent of the band and the approval of the
Superintendent-General, from residing upon the reserve, or receiving a
location thereon.
13. If any person or Indian, after having been removed or notified as
aforesaid, returns to, settles upon, resides or hunts upon or occupies, or
uses as aforesaid, any of the said land, marsh or lots, or parts of lots; or
settles, resides upon or occupies any of the said roads, allowances for
roads, or lots or parts of lots, the Superintendent-General, or any officer or person deputed
and authorized as aforesaid, upon view, or upon proof on oath made before him, or to his
satisfaction, that the said person or Indian has returned to, settled, resided or
hunted upon or occupied or used as aforesaid any of the said lands, marshes,
lots or parts of lots, or has returned to, settled or resided upon or occupied any of the said
roads or allowances for roads, or lots or parts of lots, shall direct and send his warrant
signed and sealed to the sheriff of the proper county or district, or to any literate person
therein, and if the said reserve be not situated within any county or district, then to any
literate person therein, and if the said reserve be not situated within any county or district,
then to any literate person, commanding him forthwith to arrest such person or Indian, and
commit him to the common gaol of the said county or district, or if there be no gaol in the
said county or district, or if there be no gaol nearest to the said reserve in the Province or
Territory there to remain for the time ordered by such warrant, but which shall not exceed
thirty days.
14. Such sheriff or other person shall accordingly arrest the said party, and
deliver him to the gaoler or sheriff of the proper county, district, Province or
Territory, who shall receive such person or Indian and imprison him in the said gaol for the
term aforesaid.
15. The Superintendent-General, or such officer or person as aforesaid,
shall cause the judgment or order against the offender to be drawn up and filed
in his office, and such judgment shall not be removed by certiorari or otherwise,
or be appealed from, but shall be final.
16. If any person or Indian other than an Indian of the band to which
the reserve belongs, without the license in writing of the Superintendent-General or of some officer or person deputed by him for that purpose,
trespasses upon any of the said land, roads or allowances for roads in the said
reserve, by cutting, carrying away or removing therefrom any of the trees, saplings, shrubs,
underwood, timber or hay thereon, or by removing any of the stone, soil, minerals, metals
or other valuables off the said land, roads or allowances for roads, the person or Indian so
trespassing shall, for every tree he cuts, carries away or removes, forfeit and pay the sum
of twenty dollars; and for cutting, carrying away or removing any of the saplings,
shrubs, underwood, timber or hay, if under the value of one dollar, the sum of
four dollars, but if over the value of one dollar, then the sum of twenty dollars;
and for removing any of the stone, soil, minerals, metals or other valuables aforesaid, the
sum of twenty dollars, such fine to recovered by the Superintendent-General, or any officer
or person by him deputed, by distress and sale of the goods and chattels of the party or
parties fined: or the Superintendent-General, or such officer or person, without proceeding
by distress and sale as aforesaid, may, upon the non-payment of the said fine,
order the party or parties to be imprisoned in the common gaol as aforesaid, for
a period not exceeding thirty days, when the fine does not exceed twenty
dollars, or for a period not exceeding three months when the fine does exceed
twenty dollars: and upon the return of any warrant for distress or sale, if the amount thereof
has not been made, or if any part of it remains unpaid, the said Superintendent-General,
officer or person, may commit the party in default upon such warrant, to the common gaol
as aforesaid for a period not exceeding thirty days if the sum claimed by the
Superintendent-General, upon the said warrant does not exceed twenty dollars, or for a
time not exceeding three months if the sum claimed does exceed twenty dollars: all such
fines shall be paid to the Receiver-General, to be disposed of for the use and benefit of the
band of Indians for whose benefit the reserve is held, in such manner as the
Governor in Council may direct.
17. If any Indian, without the license in writing of the
Superintendent-General, or of some officer or person deputed by him
for that purpose, trespasses upon the land of an Indian who holds a
location title, or who is otherwise recognized by the department as the occupant of such
land, by cutting, carrying away, or removing therefrom, any of the trees,
saplings, shrubs, underwood, timber or hay thereon, or by removing any of the
stone, soil, minerals, metals or other valuables off the said land; of if any Indian, without
license as aforesaid, cuts, carries away or removes from any portion of the reserve of his
band for sale (and not for the immediate use of himself and his family) any trees, timber
or hay thereon, or removes any of the stone, soil, minerals, metals, or other valuables
therefrom for sale as aforesaid, he shall be liable to all the fines and penalties provided in
the next preceding section in respect to Indians of others bands and other persons.
18. In all orders, writs, warrants, summons and proceedings whatsoever
made, issued or taken by the Superintendent-General, or any officer or person
by him deputed as aforesaid, it shall not be necessary for him or such officer or
person to insert or express the name of the person or Indian, summoned,
arrested, distrained upon, imprisoned, or otherwise proceeded against therein, except
when the name of such person or Indians is truly given to or known by the Superintendent-General, or such officer or person, and if the name be not truly given to or known by him,
he may name or describe the person or Indian by any part of the name of such person or
Indian given to or known by him, and if no part of the name be given to or known by him
he may describe the person or Indian proceeded against in any manner by which he may
be identified; and all such proceedings containing or purporting to give the name or
description of any such person or Indian as aforesaid shall primâ facie be sufficient.
19. All sheriffs, gaolers or peace officers to whom any such process is
directed by the Superintendent-General, or by any officer or person by him
deputed as aforesaid, shall obey the same, and all other officers upon
reasonable requisition shall assist in the execution thereof.
20. If any railway, road, or public work passes through or causes injury to
any reserve belonging to or in possession of any band of Indians, or if any act
occasioning damage to any reserve be done under the authority of any Act of
Parliament, or of the legislature of any province, compensation shall be made
to them therefor in the same manner as is provided with respect to the lands or
rights or other persons; the Superintendent-General shall in any case in which an
arbitration may be had, name the arbitrator on behalf of the Indians, and shall act for them
in any matter relating to the settlement of such compensation; and the amount awarded
in any case shall be paid to the Receiver General for the use of the band of Indians for
whose benefit the reserve is held, and for the benefit of any Indian having improvements
thereon.
21. In all cases of encroachment upon, or of violation of trust respecting any
special reserve, it shall be lawful to proceed by information in the name of Her
Majesty, in the superior courts of law or equity, notwithstanding the legal title
may not be vested in the Crown.
22. If by the violation of the conditions of any such trust as aforesaid, or by
the breaking up of any society, corporation, or community, or if by the death of
any person or persons without a legal succession of trusteeship, in whom the
title to a special reserve is held in trust, the said title lapses or becomes void in law, then
the legal title shall become vested in the Crown in trust, and the property shall be managed
for the band or irregular band previously interested therein, as an ordinary reserve.
repair of roads.
23. Indians residing upon any reserve, and engaged in the pursuit of
agriculture as their then principal means of support, shall be liable, if so
directed by the Superintendent-General, or any officer or person by him
thereunto authorized, to perform labor on the public roads laid out or
used in or through, or abutting upon such reserve, such labor to be performed under
the sole control of the said Superintendent-General, officer or person, who may
direct when, where and how and in what manner the said labor shall be applied, and
to what extent the same shall be imposed upon Indians who may be
resident upon any of the said lands; and the said Superintendent-General, officer or person shall have the like power to enforce the
performance of all such labor by imprisonment or otherwise, as may be done by any
power or authority under any law, rule or regulation in force in the
province or territory in which such reserve lies, for the non-performance
of statute labor; but the labor to be so required of any such Indian shall
not exceed in amount or extent what may be required of other inhabitants of the
same province, territory, county, or other local division, under the laws requiring and
regulating such labor and the performance thereof.
24. Every band of Indians shall be bound to cause the roads,
bridges, ditches and fences within their reserve to be put and maintained
in proper order, in accordance with the instructions received from time to
time from the Superintendent-General, or from the agent of the Superintendent-General; and whenever in the opinion of the Superintendent-General the
same are not so put or maintained in order, he may cause the work to be
performed at the cost of such band, or of the particular Indian in default, as the case
may be, either out of their or his annual allowances, or otherwise.
surrenders.
25. No reserve or portion of a reserve shall be sold, alienated or
leased until it has been released or surrendered to the Crown for the
purposes of this Act.
26. No release or surrender of a reserve, or portion of a reserve, held
for the use of the Indians of any band or of any individual Indian, shall be
valid or binding except on the following conditions: -
1. The release or surrender shall be assented to by a
majority of the male members of the band of the full age of twenty-one years, at a
meeting or council thereof summoned for that purpose according to their rules, and
held in the presence of the Superintendent-General, or of an officer duly authorized
to attend such council by the Governor in Council or by the
Superintendent-General; Provided, that no Indian shall be entitled to vote
or be present at such council, unless he habitually resides on or near and is
interested in the reserve in question;
2. The fact that such release or surrender has been assented to by
the band at such council or meeting, shall be certified on oath before some judge
of a superior, county, or district court, or stipendiary magistrate, by the
Superintendent-General or by the officer authorized by him to attend such council
or meeting, and by some one of the chiefs or principal men present thereat and
entitled to vote, and when so certified as aforesaid shall be submitted to the
Governor in Council for acceptance or refusal;
3. But nothing herein contained shall be construed to prevent the
Superintendent-General from issuing a license to any person or Indian
to cut and remove trees, wood, timber and hay, or to quarry and remove
stone and gravel on and from the reserve; Provided he, or his agent acting by his
instructions, first obtain the consent of the band thereto in the ordinary manner as
hereinafter provided.
27. It shall not be lawful to introduce at any council or meeting of Indians
held for the purpose of discussing or of assenting to a release or surrender of
a reserve or portion thereof, or of assenting to the issuing of a timber or other
license, any intoxicant; and any person introducing at such meeting, and any agent or
officer employed by the Superintendent-General, or by the Governor in Council,
introducing, allowing or countenancing by his present the use of such intoxicant among
such Indians a week before, at, or a week after, any such council or meeting, shall forfeit
two hundred dollars, recoverable by action in any of the superior courts of law, one half of
which penalty shall go to the informer.
28. Nothing in this Act shall confirm any release or surrender which would
have been invalid if this Act had not been passed; and no release or surrender
of any reserve to any party other than the Crown, shall be valid.
management and sale of Indian lands.
29. All Indian lands, being reserves or portions of reserves surrendered or
to be surrendered to the Crown, shall be deemed to be held for the same
purposes as before the passing of this Act; and shall be managed, leased and sold as the
Governor in Council may direct, subject to the conditions of surrender, and to the
provisions of this Act.
30. No agent for the sale of Indian lands shall, within his division, directly or
indirectly, unless under an order of the Governor in Council to sell, or become
proprietor of or interested in any such land, during the time of his agency; and any such
purchase or interest shall be void; and if any such agent offends in the
premises, he shall forfeit his office and the sum of four hundred dollars for every
such offence, which may be recovered in action of debt by any person who may
sue for the same.
31. Every certificate of sale or receipt for money received on the sale of
Indian lands, heretofore granted or made or to be granted or made by the
Superintendent-General or any agent of his, so long as the sale to which such
receipt or certificate relates is in force and not rescinded, shall entitle the party
to whom the same was or shall be made or granted, or his assignee, by instrument
registered under this or any former Act providing for registration in such cases, to take
possession of and occupy the land therein comprised, subject to the conditions of such
sale, and thereunder, unless the same shall have been revoked or cancelled, to maintain
suits in law or equity against any wrongdoer or trespasser, as effectually as he could do
under a patent from the Crown; - and such receipt or certificate shall be primâ facie
evidence for the purpose of possession by such person, or the assignee under
an instrument registered as aforesaid, in any such suit; but the same shall have
no force against a license to cut timber existing at the time of the making or
granting thereof.
32. The Superintendent-General shall keep a book for registering (at the
option of the parties interested) the particulars of any assignment made, as well
by the original purchaser or lessee of Indian lands or his heir or legal
representative, as by any subsequent assignee of any such lands, or the heir
or legal representative of such assignee; - and upon any such assignment being
produced to the Superintendent-General, and, except in cases where such assignment is
made under a corporate seal, with an affidavit of due execution thereof, and of the time
and place of such execution, and the names, residences and occupations of the
witnesses, or, as regards lands in the province of Quebec, upon the production
of such assignment executed in notarial form, or of a notarial copy thereof, the
Superintendent-General shall cause the material parts of every such assignment
to be registered in such book of registry, and shall cause to be endorsed on every such
assignment a certificate of such registration, to be signed by himself or his deputy, or any
other officer of the department by him authorized to sign such certificates; - And every such
assignment so registered shall be valid against any one previously executed, but
subsequently registered, or unregistered; but all the conditions of the sale, grant or location
must have been complied with, or dispensed with by the Superintendent-General, before
such registration is made.
33. If any subscribing witness to any such assignment is deceased, or has
left the province, the Superintendent-General may register such assignment
upon the production of an affidavit proving the death or absence of such witness
and his handwriting, or the handwriting of the party making such assignment.
34. On any application for a patent by the heir, assignee or devisee of the original
purchaser from the Crown, the Superintendent-General may receive proof in such manner
as he may direct and require in support of any claim for a patent when the original
purchaser is dead, and upon being satisfied that the claim has been equitably and justly
established, may allow the same, and cause a patent to issue accordingly; but nothing in
this section shall limit the right of a party claiming a patent to land in the
province of Ontario to make application at any time to the commissioner, under
the "Act respecting claims to lands in Upper Canada for which Ano patents have
issued."
35. If the Superintendent-General is satisfied that any purchaser or lessee
of any Indian lands, or any assignee claiming under or through him, has been
guilty of any fraud or imposition, or has violated any of the conditions of sale or
lease, or if any such sale or lease has been or is made or issued in error or mistake, he
may cancel such sale or lease, and resume the land therein mentioned, or dispose of it as
if no sale or lease thereof had ever been made; and all such cancellations
heretofore made by the Governor in Council or the Superintendent-General shall
continue valid until altered.
36. When any purchaser, lessee or other person refuses or neglects to
deliver up possession of any land after revocation or cancellation of the sale or
lease as aforesaid, or when any person is wrongfully in possession of any Indian
lands and refuses to vacate or abandon possession of the same, the
Superintendent-General may apply to the county judge of the county, or to a judge of the
superior court in the circuit, in which the land lies in Ontario or Quebec, or to any judge of
a superior court of law or any county judge of the county in which the land lies in any other
province, or to any stipendiary magistrate in any territory in which the land lies, for an order
in the nature of a writ of habere facias possessionem, or writ of possession, and
the said judge or magistrate, upon proof to his satisfaction that the right or title
of the party to hold such land has been revoked or cancelled as aforesaid, or
that such person is wrongfully in possession of Indian lands, shall grant an order upon the
purchaser, lessee or person in possession, to deliver up the same to Superintendent-General, or person by him authorized to receive the same; and such order shall have the
same force as a writ of habere facias possessionem, or writ of possession; and the sheriff,
or any bailiff or person to whom it may have been trusted for execution by the
Superintendent-General, shall execute the same in like manner as he would execute such
writ in an action of ejectment or possessory action.
37. Whenever any rent payable to the Crown on any lease of Indian lands
is in arrear, the Superintendent-General, or any agent or officer appointed under
this Act and authorized by the Superintendent-General to act in such cases,
may issue a warrant, directed to any person or persons by him named therein, in the shape
of a distress warrant as in ordinary cases of landlord and tenant, or as in the case of
distress and warrant of a justice of the peace for non-payment of a pecuniary
penalty; and the same proceedings may be had thereon for the collection of
such arrears as in either of the said last mentioned cases; or an action of debt as in
ordinary cases or rent in arrear may be brought therefor in the name of the Superintendent-General; but demand of rent shall not be necessary in any case.
38. When by law or by any deed, lease or agreement relating to any of the
lands herein referred to, any notice is required to be given, or any act to be
done, by or on behalf of the Crown, such notice may be given and act done by
or by the authority of the Superintendent-General.
39. Whenever letters patent have been issued to or in the name of the
wrong party, through mistake, or contain any clerical error or misnomer, or
wrong description of any material fact therein, or of the land thereby intended
to be granted, the Superintendent-General (there being no adverse claim,) may direct the
defective letters patent to be cancelled and a minute of such cancellation to be entered in
the margin of the registry letters patent, and correct letters patent to be issued
in their stead, which corrected letters patent shall relate back to the date of
those so cancelled, and have the same effect as if issued at the date of such cancelled
letters patent.
40. In all cases in which grants or letters patent have issued for the same
land inconsistent with each other through error, and in all cases of sales or
appropriations of the same land inconsistent with each other, the
Superintendent-General may, in cases of sale, cause a repayment of the
purchase money, with interest, or when the land has passed from the original
purchaser or has been improved before a discovery of the error, he may in substitution
assign land or grant a certificate entitling the party to purchase Indian lands, of such value
and to such extent as to him, the Superintendent-General, may seem just and equitable
under the circumstances; but no such claim shall be entertained unless it be
preferred within five years from the discovery of the error.
41. Whenever by reason of false survey or error in the books or plans in the
Indian Branch of the Department of the Interior, any grant, sale or appropriation
of land is found to be deficient, or any parcel of land contains less than the
quantity of land mentioned in the patent therefore, the Superintendent-General may order
the purchase money of so much land as is deficient, with the interest thereon from the time
of the application therefor, or, if the land has passed from the original purchaser,
then the purchase money which the claimant (provided he was ignorant of a
deficiency at the time of his purchase) has paid for so much of the land as is deficient, with
interest thereon from the time of the application therefor, to be paid to him in land or in
money, as he, the Superintendent-General, may direct; - But no such claim shall be
entertained unless application has been made within five years from the date
of the patent, nor unless the deficiency is equal to one-tenth of the whole
quantity described as being contained in the particular lot or parcel of land
granted.
42. In all cases wherein patents for Indian lands have issued through fraud
or in error or improvidence, the Exchequer Court of Canada, or a superior court
of law or equity in any province may, upon action, bill or plaint, respecting such
land situate within their jurisdiction, and upon hearing of the parties interested, or upon
default of the said parties after such notice of proceeding as the said courts
shall respectively order, decree such patents to be void; and upon a registry of
such decree in the office of the Registrar General of Canada, such patents shall be void
to all intents. The practice in court, in such cases, shall be regulated by order to be from
time to time made by the said courts respectively; and any action or proceeding
commenced under any former Act may be continued under this section, which, for the
purpose of any such action or proceeding shall be construed as merely continuing the
provisions of such former Act.
43. If any agent appointed or continued in office under the Act knowingly
and falsely informs, or causes to be informed, any person applying to him to
purchase any land within his division and agency, that the same has already
been purchased, or refuses to permit the person so applying to purchase the same
according to existing regulations, such agent shall be liable therefor to the
person so applying in the sum of five dollars for each acre of land which the person so
applying offered to purchase, to be recovered by action of debt in any court,
having jurisdiction in civil cases to the amount.
44. If any person, before or at the time of the public sale of any Indian lands,
by intimidation, combination, or unfair management, hinders or prevents, or
attempts to hinder or prevent, any person from bidding upon or purchasing any lands so
offered for sale, every such offender, his, her, or their aiders and abettors, shall, for every
such offence, be guilty of a misdemeanour, and on conviction thereof shall be
liable to a fine not exceeding four hundred dollars, or imprisonment for a term
not exceeding two years, or both, in the discretion of the court.
management and sale of timber.
45. The Superintendent-General, or any officer or agent authorized by him
to that effect, may grant licenses to cut timber on reserves and ungranted Indian
lands at such rates, and subject to such conditions, regulations and restrictions,
as may from time to time be established by the Governor in Council, such conditions,
regulations and restrictions to be adapted to the locality in which such reserves or lands
are situated.
46. No license shall be so granted for a longer period than twelve months
from the date thereof; and if in consequence of any incorrectness of survey or
other error, or cause whatsoever, a license is found to comprise land included
in a license of a prior date, or land not being reserves or ungranted Indian lands, the
license granted shall be void in so far as it comprises such land, and the holder or
proprietor of the license so rendered void shall have no claim upon the Government for
indemnity or compensation by reason of such avoidance.
47. Every license shall describe the lands upon which the timber may be
cut, and shall confer for the time being on the nominee, the right to take and
keep exclusive possession of the land so described, subject to such regulations
and restrictions as may be established; - And every license shall vest in the holder
thereof all rights of property whatsoever in all trees, timber and lumber cut within the
limits of the license during the term thereof, whether such trees, timber and lumber
are cut by authority of the holder of such license or by any other person, with or
without his consent; - And every license shall entitle the holder thereof to seize
in revendication or otherwise, such trees, timber or lumber where the same are
found in the possession of any unauthorized person, and also to institute any
action or suit at law or in equity against any wrongful possessor or trespasser,
and to prosecute all trespassers and other offenders to punishment, and to recover
damages, if any: - And all proceedings pending at the expiration of any license may
be continued to final termination as if the license had not expired.
48. Every person obtaining a license shall, at the expiration thereof,
make to the officer or agent granting the same, or to the Superintendent-General a return of the number and kinds of trees cut, and of the quantity and
description of sawlogs, or of the number and description of sticks of square timber,
manufactured and carried away under such license; and such statement
shall be sworn to by the holder of the license, or his agent, or by his
foreman; And any person refusing or neglecting to furnish such
statement, or evading or attempting to evade any regulation made by Order in
Council, shall be held to have cut without authority, and the timber made shall be
dealt with accordingly.
49. All timber cut under license shall be liable for the payment of the
dues thereon, so long as and wheresoever the said timber or any part of
it may be found, whether in the original logs or manufactured into deals, boards or
other stuff, - and all officers or agents entrusted with the collection of such dues
may follow all such timber and seize and detain the same wherever it is found, until
the dues are paid or secured.
50. Bonds or promissary notes taken for the dues, either before or
after the cutting of the timber, as collateral security or to facilitate
collection, shall not in any way affect the lien of the Crown on the timber,
but the lien shall subsist until the said dues are actually discharged.
51. If any timber so seized and detained for non-payment of dues
remains more than twelve months in the custody of the agent or person
appointed to guard the same, without the dues and expenses being
paid, - then the Superintendent-General, with the previous sanction of the
Governor in Council, may order a sale of the said timber to be made after sufficient
notice, - and the balance of the proceeds of such sale, after retaining the amount
of dues and costs incurred, shall be handed over to the owner or claimant of such
timber.
52. If any person without authority cuts or employs or induces any
other person to cut, or assists in cutting any timber of any kind on Indian
lands, or removes or carries away or employs or induces or assists any
other person to remove or carry away any merchantable timber of any kind so cut
from Indian lands aforesaid, he shall not acquire any right to the timber so cut, or
any claim to any remuneration for cutting preparing the same for market, or
conveying the same to or towards market, - and when the timber or saw-logs made, has or have been removed out of the reach of the officers of
the Indian Branch of the Department of the Interior, or it is otherwise found
impossible to seize the same, he shall in addition to the loss of his labour and
disbursements, forfeit a sum of three dollars for each tree (rafting stuff excepted),
which he is proved to have cut or caused to be cut or carried away, - and
such sum shall be recoverable with costs, at the suit and in the name of
the Superintendent-General or resident agent, in any court having
jurisdiction in civil matters to the amount of the penalty; - And in all such
cases it shall be incumbent on the party charged to prove his authority
to cut; and the averment of the party seizing or prosecuting, that he is duly
employed under the authority of this Act, shall be sufficient proof thereof, unless the
defendent proves the contrary.
53. Whenever satisfactory information, supported by affidavit made
before a justice of the peace or before any other competent authority, is
received by the Superintendent-General, or any other officer or agent
acting under him, that any timber or quantity has been cut without authority on
Indian lands, and describing where the said timber can be found, the said
Superintendent-General, officer, or agent, or any one of them, may seize or cause
to be seized, in Her Majesty' s name, the timber so reported to have been cut
without authority, wherever it is found, and place the same under proper custody,
until a decision can be had in the matter from competent authority;
2. And where the timber so reported to have been cut without
authority on Indian lands, has been made up with other timber into a crib,
dram or raft, or in any other manner has been so mixed up at the mills or
elsewhere, as to render it impossible or very difficult to distinguish the
timber so cut on reserves or Indian lands without license, from other
timber with which it is mixed up, the whole of the timber so mixed shall
be held to have been cut without authority on Indian lands, and shall be
liable to seizure and forfeiture accordingly, until satisfactorily separated by the
holder.
54. Any officer or person seizing timber, in the discharge of his duty
under this Act, may in the name of the Crown call in any assistance
necessary for securing and protecting the timber so seized; and
whosoever under any pretence, either by assault, force or violence, or by
threat of such assault, force or violence, in any way resists or obstructs any officer
or person acting in his aid, in the discharge of his duty under this Act, is
guilty of felony, and liable to punishment accordingly.
55. Whosoever, whether pretending to be the owner or not, either
secretly or openly, and whether with or without force or violence, takes
or carries away, or causes to be taken or carried away, or causes to be
taken or carried away, without permission of the officer or person who seized the
same, or of some competent authority, any timber seized and detained as subject
to forfeiture under this Act, before the same has been declared by competent
authority to have been seized without due cause, shall be deemed to have stolen
such timber being the property of the Crown, and guilty of felony, and is liable to
punishment accordingly;
2. And whenever any timber is seized for non-payment of Crown
dues or for any other cause of forfeiture, or any prosecution is brought for
any penalty or forfeiture under this Act, and any question arises whether
the said dues have been paid on such timber, or whether the said timber as cut on
other than any of the lands aforesaid, the burden of proving payment, or on what
land the said timber was cut, shall lie on the owner or claimant of such timber, and
not on the officer who seizes the same, or the party bringing such prosecution.
56. All timber seized under ths Act shall be deemd to be condemned,
unless the person from whom it was seized, or the owner thereof, within
one month from the day of the seizure, gives notice to the seizing officer,
or nearest officer or agent of the Superintendent-General, that he claims or intends
to claim the same; failing such notice, the officer or agent seizing shall report the
circumstances to the Superintendent-General, who may order the sale
of the said timber by the said officer or agent, after a notice on the spot,
of at least thirty days:
2. And any Judge having competent jurisdiction, may, whenever he
deems it proper, try and determine such seizures, and may order the
delivery of the timber to the alleged owner, on receiving security by bond
with two good and sufficient sureties to be first approved by the said
agent, to pay double the value in case of condemnation, - and such bond
shall be taken in the name of the Superintendent-General, to Her
Majesty's use, and shall be delivered up to and kept by the
Superintendent-General, - and if such seized timber is condemned, the
value thereof shall be paid forthwith to the Superintendent-General, or agent, and
the bond cancelled, otherwise the penalty of such bond shall be enforced and
recovered.
57. Every person availing himself of any false statement or oath to
evade the payment of dues under this Act, shall forfeit the timber on
which dues are attempted to be evaded.
moneys.
58. All moneys or securities of any kind applicable to the support or
benefit of Indians, and all moneys accrued or hereafter to accrue from
the sale of any Indian lands or of any timber on any reserves or Indian lands shall,
subject to the provisions of this Act, be applicable to the same purposes, and be
dealt with in the same manner as they might have been applied to or dealt with
before the passing of this Act.
59. The Governor in Council may, subject to the provisions of this
Act, direct how, and in what manner, and by whom the moneys arising
from sales of Indian lands, and from the property held or to be held in
trust for the Indians, or from any timber on Indian lands or reserves, or
from any other source for the benefit of Indians (with the exception of any small sum
not exceeding ten per cent. of the proceeds of any lands, timber or property, which
may be agreed at the time of the surrender to be paid to the members of the band
interested therein), shall be invested from time to time, and how the payments or
assistance to which the Indians may be entitled shall be made or given,
and may provide for the general management of such moneys, and direct
what percentage or proportion thereof shall be set apart from time to
time, to cover the cost of and attendant upon the management of
reserves, lands, property and moneys under the provisions of this Act, and for the
construction or repair of roads passing through such reserves or lands, and by way
of contribution to schools frequented by such Indians.
60. The proceeds arising from the sale or lease of any Indian lands,
or from the timber, hay, stone, minerals or other valuables thereon, or on
a reserve, shall be paid to the Receiver General to the credit of the Indian
fund.
councils and chiefs.
61. At the election of chief or chiefs, or the granting of any ordinary
consent required of a band of Indians under this Act, those entitled to
vote at the council or meeting thereof shall be the male members of the band of the
full age of twenty-one years; and the vote of a majority of such members at a
council or meeting of the band summoned according to their rules, and held in the
presence of the Superintendent-General, or an agent acting under his instructions,
shall be sufficient to determine such election, or grant such consent;
Provided that in the case of any band having a council of chiefs or
councillors, any ordinary consent required of the band may be granted
by a vote of a majority of such chiefs or councillors at a council summoned
according to their rules, and held in the presence of the Superintendent-General or
his agent.
62. The Governor in Council may order that the chiefs of any band of
Indians shall be elected, as hereinbefore provided, at such time and
place, as the Superintendent-General may direct, and they shall in such
case be elected for a period of three years, unless deposed by the
Governor for dishonesty, intemperance, immorality, or incompetency; and
they may be in the proportion of one head chief and two second chiefs or
councillors for every two hundred Indians; but any such band composed
of thirty Indians may have one chief: Provided always, that all life chiefs now living shall
continue as such until death or resignation, or until their removal by the Governor for
dishonesty, intemperance, immorality, or incompetency.
63. The chief or chiefs of any band in council may frame, subject to
confirmation by the Governor in Council, rules and regulations for the
following subjects, viz.:
1. The care of the public health;
2. The observance of order and decorum at assemblies of the Indians in general council, or on other occasions;
3. The repression of intemperance and profligacy;
4. The prevention of trespass by cattle;
5. The maintenance or roads, bridges, ditches and fences;
6. The construction and repair of school houses, council houses and other Indian public buildings;
7. The establishments of pounds and the appointment of pound-keepers;
8. The locating of the land in their reserves, and the establishment of a register of such locations.
privileges of indians.
64. No Indian or non-treaty Indian shall be liable to be taxed for any real or
personal property, unless he holds real estate under lease or in fee simple, or
personal property, ouside of the reserve or special reserve, in which case he
shall be liable to be taxed for such real or personal property at the same rate as other
persons in the locality in which it is situate.
65. All land vested in the Crown, or in any person or body corporate, in trust
for or for the use of any Indian or non-treaty Indian, or any band or irregular
band of Indians or non-treaty Indians shall be exempt from taxation.
66. No person shall take any security or otherwise obtain any lien or charge,
whether by mortgage, judgment or otherwise, upon real or personal property of
any Indian or non-treaty Indian within Canada, except on real or personal
property subject to taxation under section sixty-four of this Act: Provided always, that any
person selling any article to an Indian or non-treaty Indian may, notwithstanding this
section, take security on such article for any part of the price thereof which may be unpaid.
67. Indians and non-treaty Indians shall have the right to sue for debts due
to them or in respect of any tort or wrong inflicted upon them, or to compel the
performance of obligations contracts with them.
68. No pawn taken of any Indian or non-treaty Indian for any intoxicant shall
be retained by the person to whom such pawn is delivered, but the thing so
pawned may be sued for and recovered, with costs of suit, by the Indian or non-treaty Indian who has deposited the same, before any court of competent
jurisdiction.
69. No presents given to Indians or non-treaty Indians, nor
any property purchased, or acquired with or by means of any
annuities granted to Indians or any part thereof or otherwise
howsoever, and in the possession of any band of such Indians or of any Indian of
any band or irregular band, shall be liable to be taken, seized or
distrained for any debt, matter or cause whatsoever. Nor in the province
of British Columbia, the province of Manitoba, the North-West Territories
or in the territory of Keewatin, shall the same be sold, bartered, exchanged or given
by any band or irregular band of Indians or any Indian of any such band to any
person or Indian other than an Indian of such band; and any such sale,
barter, exchange or gift shall be absolutely null and void, unless such
slae, barter, exchange or gift be made with the written assent of the
Superintendent-General or his agent; and whosoever buys or otherwise
acquires any presents or property purchased as aforesaid, without the
written consent of the Superintendent-General, or his agent as aforesaid,
is quilty of a misdemeanor, and is punishable by fine not exceeding two hundred
dollars, or by imprisonment not exceeding six months, in any place of confinement
other than a penitentiary.
70. No Indian or non-treaty Indian, resident in the province of
Manitoba, the North-West Territories or the territory of Keewatin, shall be
held capable of having acquired or acquiring a homestead or pre-emption
right to a quarter section, or any portion of land in any surveyed or
unsurveyed lands in the said province of Manitoba, the North-West
Territories or the territory of Keewatin, or the right to share in the distribution of any
lands allotted to half-breeds, subject to the following exceptions:
(a) He shall not be disturbed in the occupation of any plot on which he has or may have permanent improvements prior to his becoming a party to any treaty with the Crown:
(b) Nothing in this section shall prevent the Government of Canada, if found desirable, from compensating any Indian for his improvements on such a plot of land without obtaining a formal surrender therefor from the band:
(c) Nothing in this section shall apply to any person who withdrew from any Indian treaty prior to the first day of October, in the year one thousand eight hundred and seventy-four.
71. Any Indian convicted of any crime punishable by imprisonment
in any penitentiary or other place of confinement, shall, during such
imprisonment, be excluded from participating in the annuities, interest
money, or rents payable to the band of which he or she is a member; and
whenever any Indian shall be convicted of any crime punishable by
imprisonment in a penitentiary or other place of confinement, the legal costs
incurred in procuring such conviction, and in carrying out the various sentences
recorded, may be defrayed by the Superintendent-General, and paid out of any
annuity or interest coming to such Indian, or to the band, as the case may be.
72. The Superintendent-General shall have power to stop the
payment of the annuity and interest money of any Indian who may be
proved, to the satisfaction of the Superintendent-General, to have been
guilty of deserting his or her family, and the said Superintendent-General
may apply the same towards the support of any family, woman or child
so deserted; also to stop the payment of the annuity and interest money
of any woman having no children, who deserts her husband and lives immorally with
another man.
73. The Superintendent-General in cases where sick, or disabled, or
aged and destitute persons are not provided for by the band of Indians
of which they are members, may furnish sufficient aid from the funds of
the band for the relief of such sick, disabled, aged or destitute persons.
74. Upon any inquest, or upon any enquiry into any matter involving
a criminal charge, or upon the trial of any crime or offence whatsoever or
by whomsoever committed, it shall be lawful for any court, judge,
stipendiary magistrate, coroner or justice of the peace to receive the evidence of
any Indian or non-treaty Indian, who is destitute of the knowledge of God and of any
fixed and clear belief in religion or in a future state of rewards and punishments,
without administering the usual form or oath to any such Indian, or non-treaty
Indian, as aforesaid, upon his solemn affirmation or declaration to tell the truth, the
whole truth and nothing but the truth, or in such form as may be approved by such
court, judge, stipendiary magistrate, coroner or justice of the peace as most binding
on the conscience of such Indian or non-treaty Indian.
75. Provided that in the case of any inquest, or upon any inquirty into
any matter involving a criminal charge, or upon the trial of any crime or
offence whatsoever, the substance of the evidence or information of any
such Indian, or non-treaty Indian, as aforesaid, shall be reduced to
writing, and signed by the person (by mark if necessary) giving the same, and
verified by the signature or mark of the person acting as interpreter (if any) and by
the signature of the judge, stipendiary magistrate or coroner, or justice of the peace
or person before such evidence or information has been given.
76. The court, judge, stipendiary magistrate, or justice of the peace
shall, before taking any such evidence, information or examination,
caution every such Indian, or non-treaty Indian, as aforesaid, that he will
be liable to incur punishment if he do not so as aforesaid tell the truth..
77. The written declaration or examination, made, taken and verified
in manner aforesaid, of any such Indian or non-treaty Indian as aforesaid, may be
lawfully read and received as evidence upon the trial of any criminal suit or
proceedings, when under the like circumstances the written affidavit, examination,
deposition or confession of any other person, might be lawfuly read and received
as evidence.
78. Every solemn affirmation or declaration in whatever form made
or taken by any Indian or non-treaty Indian as aforesaid shall be of the
same force and effect as if such Indian or non-treaty Indian had taken an oath in the
usual form, and he or she shall in like manner incur the penalty of perjury in case
of falsehood.
79. Whoever sells, exchanges with, barters, supplies or gives to any
Indian, or non-treaty Indian in Canada, any kind of intoxicant, or causes
or procures the same to be done, or connives or attempts thereat or
opens or keeps, or causes to be opened or kept, on any reserve or special reserve, a
tavern, house or building where any intoxicant is sold, bartered, exchanged or
given, or is found in possession of any intoxicant in the house, tent, wigwam or
place of abode of any Indian or non-treaty Indian, shall, on conviction thereof
before any judge, stipendiary magistrate or two justices of the peace, upon the
evidence of one credible witness other than the informer or prosecutor, be liable
to imprisonment for a period not less than one month nor exceeding six
months, with or without hard labor, and be fined not less than fifty nor more than
three hundred dollars, with costs of prosecution, - one moiety of the fine to go to the
informer or prosecutor, and the other moiety to Her Majesty, to form part of the
fund for the benefit of that body of Indian or non-treaty Indians, with respect to
one or more members of which the offence was committed: and the commander
or person in charge of any steamer or other vessel, or boat, from or on board of which any
intoxicant has been sold, bartered, exchanged, supplied or given to any Indian or non-treaty Indian, shall be liable, on conviction thereof before any judge, stipendiary magistrate
or two justices of the peace, upon the evidence of one credible witness other than the
informer or presecutor, to be fined not less than fifty nor exceeding three
hundred dollars for each such offence, with costs of prosecution, - the moieties
of the fine to be applicable as hereinbefore mentioned; and in default of
immediate payment of such fine and costs any person so fined shall be
committed to any common gaol, house of correction, lock-up, or other place of
confinement by the judge, stipendiary magistrate or two justices of the peace before whom
the conviction has taken place, for a period of not less than one nor more than
six months, with or without hard labor, or until such fine and costs are paid: and any Indian
or non-treaty Indian who makes or manufactures any intoxicant, or who has in his
possession, or concealed, or who sells, exchanges with, barters, supplies or gives to any
other Indian or non-treaty Indian in Canada any kind of intoxicant shall, on conviction
thereof, before any judge, stipendiary magistrate or two justices of the peace, upon the
evidence of one credible witness other than the informer or prosecutor, be liable to
imprisonment for a period of not less than one month nor more than six months, with or
without hard labor; and in all cases arising under this section, Indians or non-treaty Indians,
shall be competent witnesses: but no penalty shall be incurred in case of sickness where
the intoxicant is made use of under the sanction of a medical man or under the directions
of a minister of religion.
80. The keg, barrel, case, box, package or receptacle whence any intoxicant
has been sold, exchanged, bartered, supplied or given, and as well that in which
the original supply was contained as the vessel wherein any portion of such
original supply was supplied as aforesaid, and the remainder of the contents
thereof, if such barrel, keg, case, box, package or receptacle or vessel aforesaid
respectively, can be identified, and any intoxicant imported or manufactured or brought into
and upon any reserve or special reserve, or into the house, tent, wigwam or place of abode
of any Indian or non-treaty Indian, may be seized by any constable wheresoever found on
such land or in such place; and on complaint before any judge, stipendiary magistrate or
justice of the peace, he may, on the evidence of any credible witness that this Act has
been contravened in respect thereof, declare the same forfeited, and cause the
same to be forthwith destroyed; and may condemn the Indian or other person
in whose possession they were found to pay a penalty not exceeding one
hundred dollars nor less than fifty dollars, and the costs of prosecution; and one-half of such penalty shall belong to the prosecutor and the other half to Her
Majesty, for the purposes hereinbefore mentioned; and in default of immediate
payment, the offender may be committed to any common gaol, house of
correction, lock-up or other place of confinement with or without hard labor, for
any time not exceeding six nor less than two months unless such fine and costs
are sooner paid.
81. When it is proved before any judge, stipendiary magistrate or two
justices of the peace that any vessel, boat, canoe or conveyance of any
description upon the sea or sea coast, or upon any river, lake or stream in
Canada, is employed in carrying any intoxicant, to be supplied to Indians or non-treaty Indians, such vessel, boat, canoe or conveyance so employed may be
seized and declared forfeited, as in the next preceding section, and sold, and
the proceeds thereof paid to Her Majesty for the purposes hereinbefore mentioned.
82. Every article, chattel, commodity or thing in the purchase, acquisition,
exchange, trade or barter of which in contravention of this Act the consideration,
either wholly or in party, may be any intoxicant, shall be forfeited to Her Majesty
and shall be seized as in the eightieth section in respect to any receptacle of
any intoxicant, and may be sold and the proceeds thereof paid to Her Majesty for the
purposes hereinbefore mentioned.
83. It shall be lawful for any constable, without process of law, to arrest any
Indian or non-treaty Indian whom he may find in a state of intoxication, and to
convey him to any common gaol, house of correction lock-up or other place of
confinement, there to be kept until he shall have become sober; and such Indian
or non-treaty Indian shall, when sober, be brought before any judge, stipendiary
magistrate, or justice of the peace, and if convicted of being so found in a state
of intoxication shall be liable to imprisonment in any common gaol, house of correction,
lock-up or other place of confinement, for any period not exceeding one month. And if any
Indian or non-treaty Indian, having been so convicted as aforesaid, refuses upon
examination to state or give information of the person, place and time from
whom, where and when, he procured such intoxicant, and if from any other than
Indian or non-treaty Indian, then, if within his knowledge, from whom, where and
when such intoxicant was originally procured or received, he shall be liable to
imprisonment as aforesaid for a further period not exceeding fourteen days.
84. No appeal shall lie from any conviction under the five next preceding
sections of this Act, except to a Judge of any superior court of law, county, or
circuit, or district court, or to the Chairman or Judge of the Court of the Sessions
of the Peace, having jurisdiction where the conviction was had, and such appeal
shall be heard, tried, and adjudicated upon by such judge without the
intervention of a jury; and no such appeal shall be brought after the expiration of thirty days
from the conviction.
85. No prosecution, conviction or commitment under this Act shall be invalid
on account of want of form, so long as the same is according to the true meaning of this
Act.
enfranchisement
86. Whenever any Indian man, or unmarried woman, of the full age of
twenty-one years, obtains the consent of the band of which he or she is a
member to become enfranchised, and whenever such Indian has been assigned
by the band suitable allotment of land for that purpose, the local agent shall
report such action of the band, and the name of the applicant to the
Superintendent-General; whereupon the said Superintendent-General, if
satisfied that the proposed allotment of land is equitable, shall authorize some
competent person to report whether the applicant is an Indian who, from the degree of
civilization to which he or she has attained, and the character for integrity, morality and
sobriety which he or she bears, appears to be qualified to become a proprietor of land in
fee simple; and upon the favorable report of such person, the Superintendent-General may grant such Indian a location ticket as a probationary Indian, for the
land alloted to him or her by the band.
(1.) Any Indian who may be admitted to the degree of Doctor of Medicine,
or to any other degree by any University of Learning, or who may be admitted
in any Province of the Dominion to practice law either as an Advocate or as a
Barrister or Counsellor or Solicitor or Attorney or to be a Notary Public, or who
may enter Holy Orders or who may be licensed by any denomination of Christians
as a Minister of the Gospel, shall ipso facto become and be enfranchised under this
Act.
87. After the expiration of three years (or such longer period
as the Superintendent-General may deem necessary in the
event of such Indian's conduct not being satisfactory), the
Governor may, on the report of the Superintendent-General, order the issue of
letters patent, granting to such Indian in fee simple the land which had, with this
object in view, been allotted to him or her by location ticket.
88. Every such Indian shall, before the issue of the letters patent
mentioned in the next preceding section, declare to the Superintendent-General the name and surname by which he or she wishes to be
enfranchised and thereafter known. and on his or her receiving such
letters patent, in such name and surname, he or she shall be held to be also
enfranchised, and he or she shall thereafter be known by such name
or surname, and if such Indian be a married man his wife and minor
unmarried children also shall be held to be enfranchised; and from the
date of such letters patent the provisions of this Act and of any Act or
law making any distinction between the legal rights, privileges,
disabilities and liabilities of Indians and those of Her Majesty' other subjects shall
cease to apply to any Indian, or to the wife or minor unmarried children of any Indian
as aforesaid, so declared to be enfranchised, who shall no longer be deemed
Indians within the meaning of the laws relating to Indians, except in so far as their
right to participate in the annuities and interest moneys, and rents and
councils of the band of Indians to which they belonged is concerned:
Provided always that any children of a probationary Indian, who being
minors and unmarried when the probationary ticket was granted to such
Indian, arrive at the full age of twenty-one years before the letters patent
are issued to such Indian, may, at the discretion of the Governor in
Council, receive letters patent in their own names for their respective shares of the
land allotted under the said ticket, at the same time that letters patent are
granted to their parent: and provided, that if any Indian child having
arrived at the full age of twenty-one years, during his or her parents'
probationary period, be unqualified for enfranchisement, or if any child of such
parent, having been a minor at the commencement of such period, be married
during such period, then a quantity of land equal to the share of such child shall be
deducted in such manner as may be directed by the Superintendent-General, from
the allotment made to such Indian parent on receiving his probationary ticket.
89. If any probationary Indian should fail in qualifying to become
enfranchised, or should die before the expiration of the required
probation, his or her claim, or the claim of his or her heirs to the land, for
which a probationary ticket was granted, or the claim of any unqualified
Indian, or of any Indian who may marry during his or her parents'
probationary period, to the land deducted under the operation of the next preceding
section from his or her parents' probationary allotment, shall in all respects be the
same as that conferred by an ordinary location ticket, as provided in the sixth,
seventh, eighth and ninth sections of this Act.
90. The children of any widow who becomes either a probationary or
enfranchised Indian shall be entitled to the same privileges as those of
a male head of a family in like circumstances.
91. In allotting land to probationary Indians, the quantity to be located
to the head of a family shall be in proportion to the number of such family
compared with the total quantity of land in the reserve, and the whole
number of the band, but any band may determine what quantity shall be
allottted to each member for enfranchisement purposes, provided each female of
any age, and each male member under fourteen years of age receive not less than
one-half the quantity allotted to each male member of fourteen years of age and
over.
92. Any Indian, not a member of the band, or any non-treaty, who,
with the consent of the band and the approval of the Superintendent-General, has been permitted to reside upon the reserve, or obtain a
location thereon, may, on being assigned a suitable allotment of land by
the band for enfranchisement, become enfranchised on the same terms
and condition as a member of the band; and such enfranchisement shall confer
upon such Indian the same legal rights and privileges, and make such Indian
subject to such disabilities and liabilities as affect Her Majesty's other
subjects; but such enfranchisement shall not confer upon such Indian
any right to participate in the annuities, interest moneys, rents and councils of the
band.
93. Whenever any band of Indians, at a council summoned for the purpose &
according to their rules, and held in the presence of the Superintendent-General or of any agent duly authorized by him to attend such council,
decides to allow every member of the band who chooses, and who may
be found qualified, to become enfranchised, and to receive his or her
share of the principal moneys of the band, and sets apart for such
member a such member a suitable allotment of land for the purpose, any
applicant of such band after such a decision may be dealt with as
provided in the seven next preceding sections until his or her
enfranchisement is attained; and whenever any member of the band,
who for the three years immediately succeeding the date on which he or
she was granted letters patent, or for any longer period that the Superintendent-General may deem necessary, by his or her exemplary good conduct
and management of property, proves that he or she is qualified to
receive his or her share of such moneys, the Governor may, on the
report of the Superintendent-General to that effect, order that the said Indian be
paid his or her share of the capital funds at the credit of the band, or his or her
share of the principal of the annuities of the band, estimated as yielding five per
cent. out of such moneys as may be provided for the purpose by Parliament; and
if such Indian be a married man then he shall also be paid his wife and minor
unmarried children's share of such funds and other principal moneys, and if such
Indian be a widow, she shall also be paid her minor unmarried children's share: and
the unmarried children of such married Indians, who become of age during either
the probationary period of enfranchisement or for payment of such moneys, if
qualified by the character for integrity, morality and sobriety which they
bear, shall receive their own share of such moneys when their parents
are paid, and if not so qualified, before they can become enfranchised
or receive payment of such moneys they must themselves pass through
the probationary periods; and all such Indians and their unmarried minor
children who are paid their share of the principal moneys of their band as aforesaid,
shall thenceforward cease in every respect to be Indians of any class within the
meaning of this Act, or Indians within the meaning of any other Act or law.
94. Sections eighty-six to ninety-three, both inclusive, of this Act,
shall not apply to any band of Indians in the Province of British Columbia,
the Province of Manitoba, the North-West Territories, or the Territory of
Keewatin, save in so far as the said sections may, by proclamation of the
Governor-General, be from time to time extended, as they may be, to any
band of Indians in any of the said provinces or territories.
Miscellaneous provisions.
95. All affidavits required under this Act, or intended to be used in
reference to any claim, business or transaction in the Indian Branch of
the Department of the Interior, may be taken before the judge or clerk of
any county or circuit court, or any justice of the peace, or any
commissioner for taking affidavits in any of the courts, or the Superintendent-General, or
any Indian agent, or any surveyor duly licensed and sworn, appointed by the
Superintendent-General to enquire into or take evidence or report in any matter
submitted or pending before such Superintendent-General, or if made out of
Canada, before the mayor or chief magistrate of, or the British consul in, any city, town or
other municipality; and any wilful false swearing in any such affidavit shall be perjury.
96. Copies of any records, documents. books or papers belonging to or
deposited in the Department of the Interior, attested under the signature of the
Superintendent-General or of his deputy shall be competent evidence in all
cases in with the original records, documents, books or papers, could be evidence.
97. The Governor in Council may, by proclamation from time to time,
exempt from the operation of this Act, or from the operation of this Act, or form
the operation of any one or more of the sections of this Act, Indians or non-treaty Indians, or any of them, or any band or irregular band of them, or the
reserves or special reserves, or Indian lands or any portions of them, in any
province, in the North-West Territories, or in the territory of Keewatin, or in either
of them, and may again, by proclamation from time to time, remove such
exemption.
98. The Governor may, from time to time, appoint officers and agents to
carry out this Act, and any Orders in Council made under it, which officers and
agents shall be paid in such manner and at such rates as the Governor in
Council may direct out of any fund that may be appropriated by law for that
purpose.
99. Section fifty-six of chapter sixty-one and section fifty of chapter sixty-eight
of the Consolidated Statutes of Canada, section twenty-nine of chapter forty-nine of the Consolidated Statutes of Upper Canada, and so much of chapter
eighty-one of the said Consolidated Statutes of Upper Canada as relates to
Indians or Indian lands, sections five to thirty-three, inclusive, and sections
thirty-seven and thirty-eight of the Act passed in the session held in the thirty-first year of Her Majesty's reign, chaptered forty-two, and the Act passed in the
session held in the thirty-second and thirty-third years of Her Majesty's reign,
chaptered six, and the Act passed in the thirty-seventh year of Her Majesty's
reign, chaptered twenty-one, are hereby repealed, with so much of any Act, or
as makes any provision in any matter provided for by this Act, except only as
to things done, rights acquired, obligations contracted, or penalties incurred
before the coming into force of this Act; and this Act shall be construed not
as a new law but as a consolidation of those hereby repealed in so far as
they make the same provision that is made by this Act in any matter hereby
provided for.
100. No Act or enactment repealed by any Act hereby repealed shall revive
by reason of such repeal.
see S.C. 1880, c.28, s.112 for repeals.