Indian Legal Definition:
Nomenclature selected by Canada and USA to refer to and define their aboriginal or indigenous people.
Existing Indian Family
In People v Hall, the Court noted that Indians is the name given by the European discoverers of America to its aboriginal inhabitants.
In the USA, Title 25 of the US Code is entitled Indians.
However, there is no single legal definition of what is an Indian in the United States. Government agencies and tribes have differing criteria to determine eligibility for programs, services or membership.
Membership in an Indian Tribe is key for American Indians to qualify for services, benefits and privileges provided by the United States government, and to be exempt from some treatment such as taxation.
Thus, this from Justice Cornish in Goforth:
"Two elements must be satisfied before it can be found that the appellant is an Indian under federal law. Initially, it must appear that he has a significant percentage of Indian blood. Secondly, the appellant must be recognized as an Indian either by the federal government or by some tribe or society of Indians."
In Canada, Indians are a subgroup of those who are recognized as aboriginal (also known as First Nations or indigenous).
The British North America Act (now Constitution Act, 1867) gives to the Federal government legislative jurisdiction for Indians, and Lands reserved for the Indians (at §91(24)) but does not define the term.
"The word has a dubious provenance, having originated in a mistake by Christopher Columbus who thought he had discovered India in his voyages across the Atlantic Ocean.
"The federal Indian Act defines the term Indian... and establishes a register to record the names of qualified persons.... The status then devolves ... to their descendants.... They alone enjoy the right to live on Indian reserves and various other Indian Act privileges. There are about 700,000 status Indians in Canada"
Imai writes that there are 46 distinct Indian tribes in Canada (which that author refers to as nations and which the Government calls bands) and that:
"The federal government ... imposed a registration scheme under the Indian Act.... Indians registered under the Indian Act are referred to by the federal government as status Indians and their communities are called bands..... Indians who, for some reason or another, are not registered under the Indian Act are called non-status Indians."
The Canadian Courts have evolved the constitutional definition to include Métis and Inuit (or Eskimo) but they are not recognized as such pursuant to the Indian Act and privileges associated therewith.
- Constitution Act, 1867 (U.K.), 30 & 31 Victoria, Chapter 3, published at canlii.org///en/ca/const/const1867.html
- Goforth v State, 644 P. 114 (Court of Criminal Appeals of Oklahoma, 1982)
- Hogg, Peter, Constitutional Law of Canada (Toronto: Thomson-Carswell, 2007), page597.
- Imai, S., Aboriginal Law Handbook, 2nd Edition (Toronto: Carswell, 1999).
- Indian Act, RSC 1985, Chapter I-5, published at canlii.org/ca/sta/i-5/
- People v Hall, 4 Cal. 399 (1854)
- Re Eskimos 1939 SCR 104
- US v Broncheau, 444 US 859 (1979)
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