May 30, 1962
To: Ian Drost
From: J.A. Macaulay,
Re: Indian Franchise
We have been advised by Mrs. Maisie Hurley, publisher of the “Native Voice” that she and a great number of her Indian friends harbor a strong suspicion that the amendment to section 14 of the “Canada Elections Act,” which had, inter alia, disqualified Indians from voting, removing this disqualification, has had the effect of destroying the special rights enjoyed by Indians under the “Indian Act.” Mrs. Hurley expresses particular concern over the effect of this amendment of the “Canada Elections Act” on Indians’ rights pertaining to lands forming part of Indian reserves.
The Minorities Committee consulted Mr. Leroy Brown, a geologist, who is noted for his interest in and extensive contacts with the Coastal Bands, on this subject, and also had the opportunity of speaking to Alf Scow, son of the late Chief Joe Scow, the first Indian to achieve professional status (he will be called to the Bar in July). Messrs. Brown and Scow confirmed the fact that there is a widespread fear among the Indian bands that the exercise of the franchise in the Federal Election will somehow destroy the individual Indian’s status under the Indian Act.
The “Canada Elections Act” R.S.C. 1952 chapter 23 provided :
14. (2) “The following persons are disqualified from voting at an election and incapable of being registered as electors and shall not vote nor be so registered, that is to say, (e) every Indian, as defined in the “Indian Act,” ordinarily resident on a reserve, unless,
- he was a member of His Majesty’s Forces during World War I or World War II, or was a member of the Canadian Forces who served on active service subsequent to the 9th day of September, 1950, or
- he executed a waiver, in a form prescribed by the Minister of Citizenship and Immigration, of exemptions under the “Indian Act” from taxation on and in respect of personal property, and subsequent to the execution of such waiver a writ has issued ordering an election in any electoral district;”
The “Canada Elections Act” was amended in 1960, by chapter 7 of the Statutes of that year, which repealed section 14 (2) (e). In the same year the whole “Elections Act” was repealed and re-enacted by chapter 39 of the 1960 Statutes.
The “Indian Act” R.S.C. 1952 chapter 149 provides:
109. “A person with respect to whom an order for enfranchisement is made under this Act shall, from the date thereof, or from the date of enfranchisement provided for therein, be deemed not to be an Indian within the meaning of this Act or any other statute or law.
110. (1) Upon the issue of an order of enfranchisement, any interest in land and improvement on an Indian reserve of which the enfranchised Indian was in lawful possession or over which he exercised rights of ownership, at the time of his enfranshisement [sic], may be disposed of by him by gift of private sale to the band or another member of the band, but if not so disposed of within thirty days after the date of the order of enfranchisement such land and improvements shall be offered for sale by tender by the superintendent and sold to the highest bidder and the proceeds of such sale paid to him; and if no bid is received and the property remains unsold after six months from the date of such offering, the land, together with improvements, shall revert to the band free from any interest of the enfranchised person therein, subject to the payment, at the discretion of the minister, to the enfranchised Indian, from the funds of the band, of such compensation for permanent improvements as the Minister may determine.
(2) When an order of enfranchisement issues or has issued, the Governor in Council may, with the consent of the council of the band, by order declare that any lands within a reserve of which the enfranchised Indian had formerly been in lawful possession shall cease to be Indian reserve lands.
(3) When an order has been made under subsection (2), the enfranchised Indian is entitled to occupy such lands for a period of ten years from the date of his enfranchisement, and the enfranchised Indian shall pay to the funds of the band, or there shall, out of any money payable to the enfranchised Indian under this Act, be transferred to the funds of the band, such amount per acre for the lands as the Minister considers to be the value of the common interest of the band in the lands.
(4) At the end of the ten-year period referred to in subsection (3) the Minister shall cause a grant of the lands to be made to the enfranchised Indian or to his legal representatives.
The "Indian Act also provides for the enfranchisement in the case of
an individual (section 108) or in the case of a band (section lll), by
Order-in-Council, upon the application of the individual Indian or band.
It is clear that the order of the enfranchisement referred to in
section 109 refers to Orders-in-Council made under the provisions of
section 108 and 111, affecting named individuals or named bands.
cont . . . . .
- 4 -
Mrs. Hurley and her Indian friends apparently fear that the 1960 amendment to the Canada Elections Act, because it is usually referred to as "enfranchisement of the Indian has the same effect as if an enfranchisement order had been made under sections 108 or section 111 of the "Indian Act, and that the wise course for the Indians to follow is to abstain from exercising this franchise so that they may be in a position to repudiate or deny that they have been enfranchised.
In other words the Indian hopes that "the enfranchisement provided to the Indian under the new "Canada Elections Act will not affect his rights and status as an Indian unless he consumates [sic] the enfranchisement by actually voting. This may not seem logical but we believe that this represents the thinking of many Indians and their leaders, British Columbia Indians seem to fear and distrust the present Provincial Government. One of the bands has recently had an unpleasant experience with the Department of Highways in connection with a Provincial road that crossed Indian reserve lands. We are informed that the Indians fear that the Provincial
Government will avail itself of any excuse to seize Indian reserve lands, with or without any, or any adequate, compensation. These fears about future confiscatory policy in connection with Indian reserve land by the Provincial Government were mentioned both by Mr. Brown and by Mr. Scow.
No mention has been made t o us of any present or immediate fear that the Federal Government will follow a similar confiscatory policy, but we should keep in mind the fact that there has recently been considerable controversy over the sale of timber rights on an Indian reserve under the auspices of the Department of' Citizenship and Immigration. The Reverend Kelly's statements in this connection have probably been communicated to a large number of Indians. This incident may have been sufficient to raise the Indians’ suspicions about the intentions of the Federal Government,
The Minorities Committee recommends that the Prime Minister be asked t o consider making a short and simple statement t o the effect that the amendments t o the “Canada Elections Act” giving the Indian the right to vote in Federa1 elections does not constitute enfranchisement within the meaning of the “Indian Act” and that none of the rights and privileges of the Indian under the “Indian Act” are affected neither by the amendment to the “Canada Elections Act” nor by the act of voting.
It might be pointed out by way of illustration that war veterans have long had the right to vote in Federal elections and that this has not affected their rights and privileges as Indians. It should not be difficult for most Indians t o confirm this by talking to war veterans who are members of their band and who have exercised their right to vote in past Federal elections.
I attach a photostat of a letter provided for our Committee’s use in connection with the above-mentioned problem by the Honourable Ellen L. Fairclough, Minister of Citizenship and Immigration for your information. We have had several requests for these letters and this goes to confirm what have been told by Mrs. Hurley and by Messrs. Brown and Scow.