Canada’s Indian Act: Status, Reserve Land, Tax, and Governance

The Indian Act is the primary federal law in Canada governing the relationship between the Government of Canada and First Nations people, and it has been in force since April 12, 1876. It sets the rules for who qualifies for Indian status, how reserve land is held and used, how band councils are elected, which taxes registered members pay, and how estates are handled after death. It applies only to First Nations people registered under its provisions. Métis and Inuit are not covered.¹

Who Qualifies for Indian Status

Registration eligibility comes down to two subsections of the Act: Section 6(1) and Section 6(2).² Both give a person full status and access to the same rights and benefits, but they differ in what a parent can pass down.

Section 6(1) covers people who were registered before the 1985 amendments, people reinstated by later reforms, and anyone whose parents are both entitled to registration. Section 6(2) covers people with only one parent entitled under Section 6(1). A Section 6(1) parent can pass status to a child regardless of the other parent’s status. A Section 6(2) parent can pass status only if the other parent is also registered or entitled to be registered.

The Second-Generation Cut-Off

That difference produces what is known as the second-generation cut-off. When two consecutive generations each have one status parent and one non-status parent, the third generation is not entitled to registration at all.

A grandparent registered under Section 6(1) has a child with a non-status person. That child qualifies under Section 6(2).
The Section 6(2) child then has a child with a non-status person.
The grandchild in that third generation is not entitled to status.

The rule operates mechanically from the registration categories of each parent. Ancestry beyond those categories, cultural ties, and residence are not considered. Introduced in the 1985 amendments, it remains one of the Act’s most contested provisions because status is progressively lost across generations in families with mixed-status parentage.

How Gender-Based Rules Have Changed

For more than a century, the Act stripped women of status when they married non-status men, while men who married non-status women kept theirs. Two rounds of reform reshaped eligibility, and both still drive registration decisions today.

Bill C-31 (1985)

The 1985 amendments eliminated enfranchisement and removed the Registrar’s authority to strike anyone from the Indian Register who was otherwise entitled to be listed.³ Women who had lost status through marriage to a non-Indian man could apply to be reinstated, along with their children. People who had been voluntarily or involuntarily enfranchised under earlier versions of the Act could also apply. After 1985, a woman no longer automatically joined her husband’s band on marriage.

Bill S-3 (2017 and 2019)

Bill S-3 addressed sex-based inequities that Bill C-31 left in place. The December 2017 amendments fixed situations where first cousins received different status depending on whether their grandmother or grandfather had married a non-status person, and corrected similar gaps affecting siblings and minor children born between 1951 and 1985.⁴ The 2017 changes also gave the Registrar flexibility to weigh a wider range of evidence — church records, hospital records, statutory declarations — when a parent’s identity is unknown or unstated.

On August 15, 2019, Parliament removed the 1951 cut-off date entirely. Before that, reinstatement for women who lost status through marriage reached back only to 1951. The 2019 change extended eligibility to all descendants of women who lost status for marrying a non-status man going back to 1869, matching the treatment of descendants of men who married non-status women.⁴

Applying for Status

The federal Registrar, who maintains the Indian Register under Section 5 of the Act, decides every application.⁵ You apply by submitting the Application for Registration on the Indian Register to Indigenous Services Canada with supporting documents.

The core document is an original proof of birth that lists parental information, available from the vital statistics office in the province or territory where you were born.⁶ Include as much detail as you can about your First Nations ancestors: names, dates of birth, registration numbers, and band affiliation. That information lets the Registrar trace your lineage through existing records. Add official certificates for any legal name changes or marriages.

If you are also applying for a Secure Certificate of Indian Status — the status card — you need a photo meeting federal specifications and a guarantor’s signature confirming your identity. Complete applications typically receive a decision letter within six months. Cases needing extra genealogical research can take two years or longer.⁷ The card itself usually arrives eight to twelve weeks after the decision letter.

Reserve Land Rules

Reserve land does not work like other property in Canada. It is held by the Crown for the use and benefit of the band it was set apart for.⁸ No individual member holds the kind of title that permits an open-market sale, and reserve land cannot be sold or its title conveyed until the band has absolutely surrendered it to the Crown.⁹

Certificates of Possession

Individual members can hold recognized rights to a specific parcel through a Certificate of Possession, which the Minister may issue to anyone lawfully occupying land on a reserve. The certificate is evidence of the right to possess and use that parcel. Transfers are restricted: you can transfer only to the band itself or to another registered member of the same band.

Non-Member Occupation

Any agreement letting a non-member occupy, use, or exercise rights on a reserve is void unless the Minister has granted a written permit.¹⁰ The Minister can grant a permit for up to one year on their own authority, or for a longer period with the band council’s consent. Arrangements made without proper authorization have no legal force.

Designation and Surrender

When a band wants to lease reserve land for economic development, the land must be formally designated through a community referendum. A majority of electors who vote must assent, the band council must recommend the designation to the Minister by Band Council Resolution, and the Minister must accept it.¹¹ A designation allows leasing while the land remains part of the reserve. An absolute surrender permanently removes land from reserve status and needs Governor in Council approval as well as the Minister’s.

Tax Exemptions Under Section 87

Section 87 exempts from taxation the interest of an Indian or band in reserve lands and the personal property of an Indian or band situated on a reserve.¹² The exemption reaches both federal and provincial taxes. The controlling question is always whether the property or income is situated on a reserve.

Employment Income and the Connecting Factors Test

For income like wages, location is not a matter of pointing to a map. The Supreme Court of Canada in Williams v. Canada (1992) set out a connecting factors test that weighs all the circumstances tying income to a reserve, including where the work is performed, the location of the employer, the residence of the employee, and the nature of the work. The Canada Revenue Agency applies this framework when deciding whether income qualifies.¹³ No single factor is decisive.

GST/HST on Purchases

Status Indians generally do not pay GST or HST on goods bought on a reserve, or on goods bought off-reserve when the vendor or the vendor’s agent delivers them to a reserve. If you buy something off-reserve and transport it to the reserve yourself, the exemption does not apply.¹⁴ To claim relief, you present your status card or Temporary Confirmation of Registration Document to the vendor, who records your registration number on the sales document and keeps proof of delivery.

Some First Nations have adopted the First Nations Goods and Services Tax, a 5% tax on taxable sales within their lands that replaces the standard GST. Everyone pays the FNGST, including Status Indians and bands. The usual GST/HST relief does not extend to it.¹⁵

Protection From Seizure

The Act also shields personal property situated on a reserve from seizure. Real and personal property of an Indian or band on reserve cannot be subject to charge, mortgage, attachment, seizure, or execution by any non-Indian or non-band party. Creditors who are not members of a band generally cannot enforce debts against property on reserve, which shapes lending and commercial arrangements involving reserve-based assets.

Band Governance Under the Act

The Indian Act provides a default governance framework for First Nations that have not adopted an alternative. The Minister may order a band to select its chief and council through elections held under the Act.¹⁶ A council has one chief and one councillor for every hundred members, with a minimum of two councillors and a maximum of twelve. Chief and councillors serve two-year terms.¹⁷

Bylaws

Councils can make bylaws on local matters such as zoning, health, traffic, and law enforcement on the reserve.¹⁸ The chief or a council member must mail a copy of every bylaw to the Minister within four days of passage. It takes effect forty days after it reaches the Minister unless the Minister disallows it in that window, and the Minister can also declare a bylaw in force before the forty days expire.¹⁹

Removal From Office

Under the Act, a chief or councillor ceases to hold office on death, resignation, or conviction of an indictable offence. The Minister can also remove an elected official for corrupt practices or for missing three consecutive council meetings without authorization.²⁰ The Indian Act election system does not include ballot recounts, advance polls, or formal penalties for offences like bribery. Those gaps are a main reason many bands have moved to other governance frameworks.

Moving Beyond the Indian Act

The Act’s governance and land provisions are defaults, not requirements.

First Nations Elections Act

The First Nations Elections Act sets four-year terms instead of two, requires a ballot recount when the margin is five votes or fewer, allows advance polls, and creates formal offences for corrupt practices punishable by fines and up to five years in prison. Officials convicted of these offences are removed, and candidates convicted of certain offences cannot run again for five years.²⁰ Election appeals go to the courts rather than to the Minister, and the Minister has no power to remove elected officials.

Custom Election Codes

A First Nation can also develop its own community election code, which replaces the Indian Act system once adopted. Codes are drafted with community input through information sessions, public meetings, and a ratification vote. Following Corbiere v. Canada, custom codes are encouraged to include mechanisms for off-reserve members to vote, such as mail-in ballots, advance polls in urban areas, or electronic voting.²¹

First Nations Land Management

On the land side, the Framework Agreement on First Nation Land Management Act lets a First Nation opt out of the 44 land-related sections of the Indian Act and operate under its own community-developed land code.²² Any First Nation with reserve land can express interest. The process involves signing an adhesion to the Framework Agreement, drafting a land code, negotiating an individual agreement with the federal government, and holding a community ratification vote. The developmental phase takes roughly two years. Once the land code is in force, control and administration of the First Nation’s land, resources, and environment transfer from the Crown to the community.²³

Estates of Status Indians

The Act pulls estate administration for deceased Status Indians out of the provincial probate system. Jurisdiction over testamentary matters rests exclusively with the Minister of Indigenous Services.²⁴ The Minister appoints and removes executors and administrators.²⁵

Wills

Nothing in the Act prevents a Status Indian from writing a will. The Minister may accept any written and signed document indicating how a person wants their property distributed. No will has legal force, though, until the Minister approves it or a court grants probate.²⁶ The Minister can void a will made under duress, undue influence, or fraud, or one that fails to adequately provide for the deceased’s dependents.

When There Is No Will

If someone dies without a valid will, the Act’s own distribution rules apply. When the estate’s net value does not exceed seventy-five thousand dollars (or another amount set by Governor in Council order), the entire estate goes to the surviving spouse or common-law partner.²⁷ Above that threshold, the survivor receives the first seventy-five thousand dollars, and the rest is split based on the number of children:

No children: the survivor receives the entire remainder.
One child: the survivor and child each take half of the remainder.
More than one child: the survivor takes one-third and the children split two-thirds.

With no surviving spouse or issue, the estate passes to the deceased’s parents in equal shares, or to the surviving parent alone if one has died. If no parents survive, it passes to siblings and their descendants. The Minister keeps discretion to redirect assets that would go to a survivor toward the children if satisfied the children would not otherwise be adequately provided for.²⁷ Any interest in reserve land that would pass to a relative more distant than a sibling reverts to the Crown for the benefit of the band.

Where the Act Came From

The Indian Act consolidated earlier colonial statutes, including the Gradual Civilization Act of 1857, which pressured Indigenous men to adopt European languages and surnames in exchange for land, and the Gradual Enfranchisement Act of 1869, which sought to strip First Nations people of their distinct legal status. Through the late nineteenth and twentieth centuries, the Act carried some of the most damaging federal policies: a 1920 amendment made attendance at residential schools or day schools compulsory for Status Indian children, and a 1927 amendment made it illegal for Indigenous people to raise funds or hire lawyers to pursue land claims. Restrictions on cultural practices remained in the legislation for decades. Many of those provisions have since been repealed, but the Act’s assimilationist origins continue to shape the legal terrain First Nations communities work within today.

1
Indigenous Services Canada. About Indian Status
2
Justice Laws Website. Indian Act – Section 6
3
Crown-Indigenous Relations and Northern Affairs Canada. Background on Indian Registration
4
Indigenous Services Canada. Bill S-3 – Eliminating Known Sex-Based Inequities in Registration
5
Justice Laws Website. Indian Act – Section 5
6
Indigenous Services Canada. What You Need to Submit When Applying for Registration Under the Indian Act
7
Indigenous Services Canada. After You Apply
8
Justice Laws Website. Indian Act – Section 18
9
Justice Laws Website. Indian Act – Section 37
10
Justice Laws Website. Indian Act – Section 28
11
Indigenous Services Canada. Designation and Surrender – Interim Bulletin for Chapter 5, Land Management Manual
12
Justice Laws Website. Indian Act – Section 87
13
Canada Revenue Agency. Information on the Tax Exemption Under Section 87 of the Indian Act
14
Canada Revenue Agency. GST/HST and First Nations Peoples
15
Canada Revenue Agency. First Nations Goods and Services Tax
16
Justice Laws Website. Indian Act – Section 74
17
Justice Laws Website. Indian Act – Section 78
18
Justice Laws Website. Indian Act – Section 81
19
Justice Laws Website. Indian Act – Section 82
20
Indigenous Services Canada. Leadership Selection in First Nations
21
Indigenous Services Canada. Best Practices – Reviewing Custom Election Codes
22
Indigenous Services Canada. First Nations Land Management
23
Justice Laws Website. Framework Agreement on First Nation Land Management Act
24
Justice Laws Website. Indian Act – Section 42
25
Justice Laws Website. Indian Act – Section 43
26
Justice Laws Website. Indian Act – Section 45
27
Justice Laws Website. Indian Act – Section 48