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The Indian Act's concentration of power

The distribution of public power in western parliamentary systems is separated into the legislative, executive and judicial branches of government.

The distribution of public power in western parliamentary systems is separated into the legislative, executive and judicial branches of government.

The separation of power is intended to act as a check to minimize the ability of politicians to use political power for their own interests.

Power was also separated in traditional First Nations governance systems. As explained by Aboriginal lawyer Dan Russell: “Many tribes traditionally exercised checks and balances against the concentration of power in any single function.”

The First Nations of the prairies were a good example of how power was separated in traditional governance. What was unique about prairie First Nations in the traditional era was that leadership was temporary.

There was not a single leader or group of leaders that governed prairie First Nation communities year-round.

In his book, These Mountains are our Sacred Places, late Stoney Chief John Snow imparted that different leaders were selected for different events based on skill.

A War Chief, for example, would be appointed during times of conflict and a Hunting Chief would be appointed during hunting season.

According to Chief Snow, the authority of leaders was restricted to the condition at hand and “lasted only during the specific limited situation.”

In addition to separation, Russell pointed out that consensus decision making was an effective check on power because it prevented any one person or group from becoming too powerful.

The Indian Act did not replicate the separation of powers in traditional First Nations governance, or for that matter, the Canadian federal political system. Instead, the Indian Act ignored separation and concentrated authority to band councils.

Remarkably, power was concentrated to band councils without the safeguards common to westerns democratic governments.

John Graham, an Indigenous governance analyst, expounded the lack of safeguards when he said: “First Nations governments do not have the usual array of checks and balances that are found with other governments. The executive and legislature are fused in Chief and Council and there is no official opposition to hold the government accountable.”

Since the 1960s, Indian Affairs has advanced self-administration by transferring policy, program and service responsibilities to band councils. While the transfer of responsibilities is a step toward independence, it expanded and increased the authority of band bureaucracies.

The late Anthony Long, an academic researcher of Indigenous governance, observed that band administrations consequently became the dominant political institution on most reserves.

“With its function of implementing Department of Indian Affairs’ policies and programs, tribal bureaucracy has acquired a decision-making capability that has no other parallel in other governments in Canada,” he wrote.

Calvin Helin in his 2006 book Dances with Dependency wrote that with all the authority lodged in band council: “Community members contend that it is no surprise that what gets advanced on these political agendas are those issues that serve the dictates and interests of Chiefs rather than the will of the people. Impoverished community members grumble further that since the Chiefs also control transfer payment monies, it is virtually impossible for their political voice to be heard. They ask in what sense this system can be a democracy?”

Terry Poucette is an assistant teaching professor at the school of public administration at the University of Victoria, where she also earned her PhD. She is a member of the Stoney Nakoda First Nation and her research interests include First Nations governance and Indigenous leadership.