Outside the Act
The Indian Act counts Indians. The Crown’s grant named the class. They are not the same people, and not the same land.
Two registers. On the left the Act’s people, one of them flickering in and out of status as the rules change; on the right the Register’s, one waving in gold.
Three roads from 1779
Press next to walk the roads stage by stage, or play to see them all; tap anything on the drawing to read about it below. Everyone starts in gold; those who take a Crown deed turn red. One among the red is of the posterity too. Diamonds are surrenders; empty rings are surrenders never made. At the end, an open lock or a closed one.
Six generations, lost and kept
One line of women, mother to daughter, left to right. Tap a generation: above, what the Act did; below, the Register, unchanged.
Tap a generation.
Three ends, compared
Tap any cell for why, and what you need to know to read it.
| Bay of Quinte | Six Nations | The class | |
|---|---|---|---|
| Holds it | a band, collectively | a band, collectively | named persons and their posterity |
| The right rests on | Aboriginal and treaty rights, s. 35: occupation and the 1793 deed | Aboriginal and treaty rights, s. 35: occupation, the 1784 grant read through the 1793 Patent | a Crown-derived grant, the Proclamation of 1784: not an Aboriginal right, though held by Indigenous people |
| How the land came | granted by the Crown on land it had purchased, then set apart as a reserve | granted, then largely ceded: given up to the Crown by surrender | acquired by deed of gift, and never ceded: nothing given up, ever |
| UNDRIP, art. 26 | lands “traditionally owned, occupied or otherwise used”, through s. 35 and the federal Act of 2021 | the same, with claims for lands taken (art. 28) | lands “otherwise acquired” (art. 26(1)), the right to own and control them (26(2)), and their legal recognition (26(3)) |
| Instrument | Simcoe Deed, 1793, Treaty No. 3½: accepted | Simcoe Patent, 1793, Treaty No. 4: taken up | Haldimand Proclamation, 1784: the Patent refused |
| Title | in the Crown, for the band | in the Crown, for the band | the class’s, by deed of gift |
| In law | a reserve under the Indian Act | a reserve under the Indian Act (Isaac v. Davey) | acquired territory: s. 109, “any Interest other than that of the Province” |
| Can it be given up? | yes: surrender or designation by a band vote (Indian Act, ss. 37–39) | yes, and it has been: 1798, 1841, and since | no: only the whole class could, and its posterity runs to the unborn |
| Provincial law | reaches in through s. 88 | reaches in through s. 88 | held off by s. 52; s. 88 does not apply |
| Claims road | s. 35: consult, justify, settle | s. 35 and specific claims: the Tribunal awards money, not land | observance and recording: a duty to obey |
| The lock | open | open | closed |
Acquired, not ceded. Ceded land has been given up to the Crown, by treaty or surrender. Acquired land has been received, here by the Crown’s deed of gift. The class’s land was acquired in 1784 and has never been ceded. Its people are Indigenous, with ties of blood and history to the land and the other peoples of the Grand; but the interest itself rests on the Crown’s grant, not on Aboriginal title, which is why s. 35 is not its road and art. 26’s “otherwise acquired” is its place in the Declaration.
Learning sheets
Four sheets on this poster, one for each age, free to copy for teaching, in English and French. Each can also be filled in online from the poster’s page and sent to a teacher.
- Junior, ages 5 to 8: a colouring page and a story to read aloud
- Middle school, ages 11 to 14: a reading, a diagram, words to know, questions and an answer key
- University and academic: primary sources, three readings, discussion questions and further reading
- Law school: the instruments, statutes and cases, the arguments both ways, and a moot problem
If you hold status too
| Your status | Unchanged: the Register does not touch the Indian Register. |
|---|---|
| Your band membership | Unchanged. |
| Section 87 | Follows your status, not your Register entry. |
| Your place in the class | Recorded, with your Record Code, and your descendants’ lines can join it. |
In eight lines
- Two registers. The Act counts “Indians”; the Register records the posterity of the class.
- The grant. 1784, to the Mohawk of the three villages and their posterity, by deed of gift.
- 1791. The faith of Government pledged for the two tracts.
- 1793. The Bay of Quinte took its deed; at the Grand the Six Nations took the Patent and the class refused it.
- The surrenders. 1798, 1841 and since: none by the class.
- The Act. From 1876 status ran through fathers; C-31 restored some in 1985; the cut-off remains.
- The ends. Bands under the Act, open to s. 88; the class, locked by s. 52.
- UNDRIP 26. “Otherwise acquired”: the class’s land, never ceded.
The printed poster
Download the poster as printed, A3, full quality: outside-the-act.pdf