Archived - An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, S.C. 1868, c. 42
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Date: Assented to 22nd May, 1868.
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An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands.
HER Majesty, by and with the advice and consent of the
Senate and House of Commons of Canada, enacts as follows :
Tenure of office.
1. There shall be a department to be called "The
Department of the Secretary of State of Canada," over which the
Secretary of State of Canada for the time being, appointed by the
Governor General by commission under the Great Seal, shall preside ; and
the said Secretary of State shall have the management and direction of
the Department, and shall hold office during pleasure.
2. The Governor General may also appoint an
"Under Secretary of State," and such other officers as may be necessary
for the proper conduct of the business of the said Department, all of
whom shall hold office during pleasure.
3. It shall be the duty of the Secretary of
State to have charge of the State correspondence, to keep all State
records and papers not specially transferred to other Departments, and
to perform such other duties as shall from time to time be assigned to
him by the Governor General in Council.
To be Registrar General.
4. The Secretary of State shall be the Registrar
General of Canada, and shall as such register all Instruments of
Summons, Commissions, Letters Patent, Writs, and other Instruments and
Documents issued under the Great Seal.
of Indian affairs.
5. The Secretary of State shall be the
Superintendent General of Indian affairs, and shall as such have the
control and management of the lands and property of the Indians in
Indian Lands, to be under this Act.
Alienation on certain conditions only.
6. All lands reserved for Indians or for any
tribe, band or body of Indians or held in trust for their benefit,
shall be deemed to be reserved and held for the same purposes as before
the passing of this Act, but subject to its provisions ; and no such
lands shall be sold, alienated or leased until they have been released
or surrendered to the Crown for the purposes of this Act.
Moneys, securities, timber, &c., applicable to
Indians, to be under this Act.
7. All moneys or securities of any kind
applicable to the support or benefit of the Indians or any tribe, band
or body of Indians, and all moneys accrued or hereafter to accrue from
the sale of any lands or of any timber on any lands reserved or held in
trust as aforesaid, shall, subject to the provisions of this Act, be
applicable to the same purposes, and be dealt with in the same manner as
they might have been applied to or dealt with before the passing of this
Conditions on which only, Indian lands may be
8. No release or surrender of lands reserved for
the use of the Indians or of any tribe, band or body of Indians, or of
any individual Indian, shall be valid or binding, except on the
following conditions :
Consent of the chief or chiefs of the tribe.
Proviso: who may vote.
1. Such release or surrender shall be assented to by
the chief, or if there be more than one chief, by a majority of the
chiefs of the tribe, band or body of Indians, assembled at a meeting or
council of the tribe, band or body summoned for that purpose according
to their rules and entitled under this Act to vote thereat, and held in
the presence of the Secretary of State or of an officer duly authorized
to attend such council by the Governor in Council or by the Secretary of
State ; provided that no Chief or Indian shall be entitled to vote or be
present at such council, unless he habitually resides on or near the lands
in question ;
Certificate of assent to be forwarded to Secretary of
2. The fact that such release or surrender has been
assented to by the Chief of such tribe, or if more than one, by a
majority of the chiefs entitled to vote at such council or meeting,
shall be certified on oath before some Judge of a Superior, County or
District Court, by the officer authorized by the Secretary of State to
attend such council or meeting, and by some one of the chiefs present
thereat and entitled to vote, and when so certified as aforesaid shall
be transmitted to the Secretary of State by such officer, and shall be
submitted to the Governor in Council for acceptance or refusal.
Penalty for introducing liquor at any meeting for such
9. It shall not be lawful to introduce at any
council or meeting of Indians held for the purpose of discussing or of
assenting to a release or surrender of lands, any strong or intoxicating
liquors of any kind ; and any person who shall introduce at such meeting,
and any agent or officer employed by the Secretary of State, or by the
Governor in Council, who shall introduce, allow or countenance by his
presence the use of such liquors a week before, at, or a week after, any
such council or meeting, shall forfeit two hundred dollars, recoverable
by action in any of the Superior Courts of Law, one half of which
penalty shall go to the informer.
Any surrender otherwise invalid, not hereby confirmed.
10. Nothing in this Act shall confirm any
release or surrender which would have been invalid if this Act had not
been passed ; and no release or surrender of any such lands to any party
other than the Crown, shall be valid.
Governor in Council to direct the application of Indian
11. The Governor in Council may, subject to the
provisions of this Act, direct how, and in what manner, and by whom the
moneys arising from sales of Indian Lands, and from the property held or
to be held in trust for the Indians, or from any timber thereon, or from
any other source for the benefit of Indians, shall be invested from time
to time, and how the payments or assistance to which the Indians may be
entitled shall be made or given, and may provide for the general
management of such lands, moneys and property, and direct what
percentage or portion thereof shall be set apart from time to time, to
cover the cost of and attendant upon such management under provisions of
this Act, and for the construction or repair of roads passing through
such lands, and by way of contribution to schools frequented by such
Penalty for giving or selling liquor to Indians.
How recovered and applied.
Proviso : in case of sickness.
12. No person shall sell, barter, exchange or
give to any Indian man, woman or child in Canada, any kind of spirituous
liquors, in any manner or way, or cause or procure the same to be done
for any purpose whatsoever ;– and if any person so sells, barters,
exchanges or gives any such spirituous liquors to any Indian man, woman
or child as aforesaid, or causes the same to be done, he shall on
conviction thereof, before any Justice of the Peace upon the evidence of
one credible witness, other than the informer or prosecutor, be fined
not exceeding twenty dollars for each such offence, one moiety to go to
the informer or prosecutor, and the other moiety to Her Majesty to form
part of the fund for the benefit of that tribe, band or body of Indians
with respect to one or more members of which offence was committed ; but
no such penalty shall be incurred by furnishing to any Indian in case of
sickness, any spirituous liquor, either by a medical man or under the
direction of a medical man or clergyman.
Pawns not to be taken from Indians.
13. No pawn taken of any Indian for any
spirituous liquor, shall be retained by the person to whom such pawn is
delivered, but the thing so pawned may be sued for and recovered, with
costs of suit, by the Indian who has deposited the same, before any
Court of competent jurisdiction.
Presents, &c., not liable for debts.
14. No presents given to Indians nor any
property purchased or acquired with or by means of any annuities granted
to Indians, or any part thereof, or otherwise howsoever, and in the
possession of any Tribe, band or body of Indians or of any Indian of any
such Tribe, band or body, shall be liable to be taken, seized or
distrained for any debt, matter or cause whatsoever.
What persons only shall be deemed Indians.
15. For the purpose of determining what persons
are entitled to hold, use or enjoy the lands and other immoveable
property belonging to or appropriated to the use of the various tribes,
bands or bodies of Indians in Canada, the following persons and classes
of persons, and none other, shall be considered as Indians belonging to
the tribe, band or body of Indians interested in any such lands or
immoveable property :
Firstly. All persons of Indian blood, reputed to belong to the
particular tribe, band or body of Indians interested in such lands or
immoveable property, and their descendants;
Secondly. All persons residing among such Indians, whose parents
were or are, or either of them was or is, descended on either side from
Indians or an Indian reputed to belong to the particular tribe, band or
body of Indians interested in such lands or immoveable property, and the
descendants of all such persons ; And
Thirdly. All women lawfully married to any of the persons
included in the several classes hereinbefore designated ; the children
issue of such marriages, and their descendants.
How road labour shall be performed on Indian lands.
16. Indians and persons intermarried with
Indians, residing upon any Indian Lands, and engaged in the pursuit of
agriculture as their then principal means of support, shall be liable if
so directed by the Secretary of State, or any officer or person by him
thereunto authorized, to perform labor on the public roads laid out or
used in or through or abutting upon such Indian lands, such labor to be
performed under the sole control of the said Secretary of State, officer
or person, who may direct when, where and how and in what manner, the
said labor shall be applied, and to what extent the same shall be
imposed upon Indians or persons intermarried with Indians, who may be
resident upon any of the said lands ; and the said Secretary of State,
officer or person shall have the like power to enforce the performance
of all such labor by imprisonment or otherwise, as may be done by any
power or authority under any law, rule or regulation in force in that
one of the Provinces of Canada in which such lands lie, for the
non–performance of statute labor ; But the labor to be so required of any
such Indian or person intermarried with an Indian, shall not exceed in
amount or extent what may be required of other inhabitants of the same
province, county or other local division, under the laws requiring and
regulating such labor and the performance thereof.
None but persons deemed Indians to settle on Indian
17. No persons other than Indians and those
intermarried with Indians, shall settle, reside upon or occupy any land
or road, or allowance for roads running through any lands belonging to
or occupied by any tribe, band or body of Indians ; and all mortgages or
hypothecs given or consented to by any Indians or any persons
intermarried with Indians, and all leases, contracts and agreements made
or purporting to be made, by any Indians or any person intermarried with
Indians, whereby persons other than Indians are permitted to reside upon
such lands, shall be absolutely void.
Removal of unauthorized persons, settling on Indian
lands, provided for.
18. If any persons other than Indians or those
intermarried with Indians do, without the license of the Secretary of
State, (which license, however, he may at any time revoke,) settle,
reside upon or occupy any such lands, roads or allowances for roads, the
Secretary of State, or such officer or person as he may thereunto depute
and authorize, shall, on complaint made to him, and on proof of the fact
to his satisfaction, issue his warrant signed and sealed, directed to
the sheriff of the proper county or district, or if the said lands be
not situated within any county or district, then directed to any
literate person willing to act in the premises, commanding him forthwith
to remove from the said lands or roads, or allowances for roads, all
such persons and their families, so settled, residing upon or occupying
the same ; and such sheriff or other person shall, accordingly, remove
such persons, and for that purpose shall have the same powers as in the
execution of criminal process ; but the provisions in this and the four
next following sections shall extend to such Indian lands only, as the
Governor, from time to time, by Proclamation published in the Canada
Gazette, declares and makes subject to the same, and so long only as
such proclamation remains in force.
Arrest and imprisonment of persons so removed, if they
return to the lands.
19. If any person after having been removed as
aforesaid returns to, settles upon, resides upon, or occupies, any of
the said lands or roads or allowances for roads, the Secretary of State
or any officer or person deputed and authorized, as aforesaid, upon
view, or upon proof on oath made before him or to his satisfaction, that
the said person has returned to, settled or resided upon or occupied any
of the said lands or roads or allowances for roads, shall direct and
send his warrant signed and sealed, to the Sheriff of the proper County
or District, or to any literate person therein, and if the said lands be
not situated within any County, then to any literate person, commanding
him forthwith to arrest such person and commit him to the Common Gaol of
the said County or District or to the Common Gaol of the nearest County
or District to the said lands, if the said lands be not within any
County or District, there to remain for the time ordered by such
warrant, but which shall not exceed thirty days.
Sheriff, &c., to arrest such persons.
20. Such Sheriff or other person shall
accordingly arrest the said party, and deliver him to the Gaoler or
Sheriff of the a proper County or District who shall receive such
person, and imprison him in the said Common Gaol for the term aforesaid,
there to remain without bail and without being entitled to the liberties
or limits of the said Gaol.
Judgment ; it shall be final.
21. The said Secretary of State, or such officer
or person as aforesaid, shall cause the judgment or order against the
offender to be drawn up, and such judgment shall not be removed by
Certiorari or otherwise, or be appealed from, but shall be final.
Penalty on persons cutting timber or removing stone,
&c. from Indian lands.
How enforced and applied.
22. If any person without the license in writing
of the Secretary of State, or of some officer or person deputed by him
for that purpose, trespasses upon any of the said lands or roads or
allowances for roads, by cutting, carrying away or removing therefrom,
any of the trees, saplings, shrubs, underwood or timber thereon, or by
removing any of the stone or soil of the said lands, roads or allowances
for roads, the person so trespassing shall for every tree he cuts,
carries away or removes, forfeit and pay the sum of twenty dollars, and
for cutting, carrying or removing any of the saplings, shrubs, underwood
or timber, if under the value of one dollar, the sum of four dollars,
but if over the value of one dollar, then the sum of twenty dollars, and
for removing any of the stone or soil aforesaid, the sum of twenty
dollars, such fine to be recovered by the said Secretary of State, or
any officer or person by him deputed, by distress and sale of the goods
and chattels of the party or parties fined, or the said Secretary of
State, officer or person without proceeding by distress and sale as
aforesaid, may, upon the non–payment of the said fine, order the party
or parties to be imprisoned in the Common Gaol as aforesaid, for a
period not exceeding thirty days, when the fine does not exceed twenty
dollars, or for a period not exceeding three months, where the fine does
exceed twenty dollars; and upon the return of any warrant for distress
or sale, if the amount thereof has not been made, or if any part of it
remains unpaid, the said Secretary of State, officer or person, may
commit the party in default upon such warrant, to the Common Gaol as
aforesaid, for a period not exceeding thirty days if the sum claimed by
the Secretary of State, upon the said warrant, does not exceed twenty
dollars, or for a time not exceeding three months if the sum claimed
does exceed twenty dollars ; all such fines shall be paid to the Receiver
General, to be disposed of for the use and benefit of the Tribe, band or
body of Indians for whose benefit the lands are held, in such manner as
the Governor may direct.
Misnomer in writs, warrants, &c., not to invalidate
23. In all orders, writs, warrants, summonses
and proceedings whatsoever made, issued or taken by the Secretary of
State, or any officer or person by him deputed as aforesaid, it shall
not be necessary for him or such officer or person, to insert or express
the name of the person summoned, arrested, distrained upon, imprisoned
or otherwise proceeded against therein, except when the name of such
person is truly given to or known by the Secretary of State, officer or
person, and if the name be not truly given to or known by him, he may
name or describe the person by any part of the name of such person
given to or known by him ; and if no part of the name be given to or
known by him he may describe the person proceeded against in any manner
by which he may be identified ; and all such proceeding containing or
purporting to give the name or description of any such person as
aforesaid shall primâ facie be sufficient.
Sheriffs, &c., to obey orders under this Act.
24. All Sheriffs, Gaolers or Peace Officers, to
whom any such process is directed by the said Secretary of State, or by
any officer or person by him deputed as aforesaid, shall obey the same,
and all other officers upon reasonable requisition shall assist in the
As to compensation when any Railway, &c., passes through
25. If any Railway, road, or public work passes
through or causes injury to any land belonging to or in possession of
any tribe, band or body of Indians, compensation shall be made to them
therefor, in the same manner as is provided with respect to the lands or
rights of other persons ; the Secretary of State shall act for them in
any matter relating to the settlement of such compensation, and the
amount awarded in any case shall be paid to the Receiver General for the
use of the tribe, band or body of Indians for whose benefit the lands
Powers under Cap. 14, Con. Stat. L. C., vested in
Secretary of State.
Secretary not give security, &c.
26. The Secretary of State is hereby substituted
for the Commissioner of Indian Lands for Lower Canada, under the
fourteenth chapter of the Consolidated Statutes for Lower Canada,
respecting Indians and Indian lands, which shall continue to apply to
Indians and Indian lands, in the Province of Quebec, in so far as it is
not inconsistent with this Act, and shall have all the powers and
duties assigned to such Commissioner by the said Act, except that the
lands and property heretofore vested in the said Commissioner shall
henceforth be vested in the Crown, and shall be under the management of
the Secretary of State, who shall manage the same on behalf of the
Crown, and the suits respecting them shall be brought in the name of the
Crown, and the said Secretary of State shall not be bound to have any
domicile in the Province of Quebec or to give security ; and so much of
the said Act as is inconsistent with this Act is repealed.
Period in Sect. 6, extended.
27. The period limited by the sixth section of
the Act last cited, as that within which informations may be brought
under that Act, shall be one year instead of six months.
Proceedings in case of encroachment on Indian lands.
28. In all case so of encroachment upon any
lands set apart for Indian reservations or for the use of the Indians,
not herein before provided for, it shall be lawful to proceed by
information in the name of Her Majesty in the Superior Courts of Law or
Equity, notwithstanding the legal title may not be vested in the Crown.
Surveys of Indian lands.
29. The Governor may authorize surveys, plans
and reports to be made of any lands reserved for Indians shewing and
distinguishing the improved lands, the forests and lands fit for
settlement, and such other information as may be required.
Proceeds of timber.
30. The proceeds arising from the sale or lease
of any Indian lands or from the timber thereon shall be paid to the
Receiver General to the credit of Indian Fund.
Cap. 57 of Revised Stat. N. S. repealed: monies to be
Indian lands vested in Secretary.
31. The fifty–seventh chapter of the Revised
Statutes of Nova Scotia, Third Series, is hereby repealed, and the chief
Commissioner and Deputy Commissioners under the said chapter, shall
forthwith pay over all monies in their hands arising from the selling or
leasing of Indian lands, or, otherwise under the said chapter, to the
Receiver General of Canada by whom they shall be credited to the Indian
Fund of Nova Scotia and all such monies in the hands of the Treasurer of
Nova Scotia, shall be paid over by him to the Receiver General of
Canada, by whom they shall be credited to the said Indian Fund. And all
Indian lands and property now vested in the said Chief Commissioner,
Deputy Commissioner, or other Person whomsoever, for the use of Indians,
shall henceforth be vested in the Crown and shall be under the
management of the Secretary of State.
Cap. 85 of Rev. Stat. N. B. repealed: monies to be paid
Indian lands vested in Secretary.
32. The eighty–fifth chapter of the Revised
Statutes of New Brunswick respecting Indian Reserves is hereby repealed
and the Commissioners under the said chapter, shall forthwith pay over all
monies in their hands arising from the selling or leasing of Indian
Lands or otherwise under the said chapter to the Receiver General of
Canada, by whom they shall be credited to the Indians of New Brunswick,
and all such monies now in the hands of the Treasurer of New Brunswick
shall be paid over to the Receiver General of Canada, to be credited to
the said Indians. And all Indian lands and property now vested in the
said Commissioner, or other person whomsoever for the use of Indians,
shall henceforth be vested in the Crown and shall be under the
management of the Secretary of State.
Act not to affect Cap. 9 of Con. Stat. Can. &c.
33. Nothing in this Act contained shall affect
the provisions of the ninth chapter of the Consolidated Statues of
Canada intituled : An Act, respecting the civilization and
enfranchisement of certain Indians, in so far as respects Indians
in the Provinces of Quebec and Ontario, nor of any other Act when the
same is not inconsistent with this Act.
Secretary of State to manage Ordnance lands.
34. The Secretary of State is hereby substituted
for the Commissioner of Crown Lands as regards the Ordnance and
Admiralty lands transferred to the late Province of Canada and lying in
the Provinces of Quebec and Ontario.
Powers under certain Act vested in him, in place of
Commissioner of Crown Lands.
23 V. c. 2.
C. 23, Con. Stat. Can
How such Acts shall be construed.
Proviso: Act to refer to 1st July, 1867.
35. All powers and duties vested in the
Commissioner of Crown Lands with respect to the said Ordnance or
Admiralty Lands, in the Provinces of Quebec and Ontario; by the Act of
the Parliament of the late Province of Canada, passed in the
twenty–third year of Her Majesty's reign, and chaptered two, intitled:
An Act respecting the sale and management of the Public Lands, or
by the twenty–third chapter of the Consolidated statutes of the said
late Province, intituled : An Act respecting the sale and management
of Timber on Public Lands, (both which Acts shall continue to apply
to the said lands ;)– or by any other Act or law in force in any of the
Provinces now composing the Dominion of Canada, at the time of the Union
of the said Provinces, are hereby transferred to and vested in the said
Secretary of State, and shall be exercised and performed by him ;
Provided that in construing the two Acts cited in this Section, with
reference to the said lands, the words "Secretary of State" shall be
substituted for the words "Commissioner of Crown Lands," and for the
words "Registrar of the Province"– the words "Governor General" shall be
substituted for the word "Governor" and the words "Governor General in
Council" for the words "Governor in Council,"– and the Governor General
in Council may direct that the said two Acts or either of them, or any
part or parts of either or both of them shall apply to the Indian Lands
in the Provinces of Quebec and Ontario, or to any of the said lands, and
may from time to time repeal any such Order in Council and make another or
others instead thereof ; and provided further, that all the powers and
duties by this section vested in the Secretary of State, shall be
deemed to have been so vested from and after the first day of July now
last past, and may be by him exercised with reference to any act or
thing done or performed since that date, in connection with Ordnance or
Powers as to certain other Crown Lands.
36. The Secretary of State shall also have the
control and management of all Crown Lands being the property of the
Dominion, that are not specially under the control of the Public Works
Governor in Council may make Regulations as to Indian
Lands, and timber cut on them : and may impose fines for breach of the
Proviso: not to impair other remedies.
37. The Governor in Council may, from time to
time, make such Regulations as he deems expedient for the protection and
management of the Indian lands in Canada or any part thereof, and of the
timber thereon or cut from off the said lands, whether surrendered for
sale or reserved or set apart for the Indians, and for ensuring and
enforcing the collection of all moneys payable in respect of the
said–lands or timber, and for the direction and government of the
officers and persons employed in the management thereof or otherwise
with reference thereto, and generally for carrying out and giving effect
to the provisions of this Act ;– and by such Regulations the Governor
in Council may impose such fines not exceeding in any case two hundred
dollars, as he deems necessary for ensuring the due observance of such
Regulations, the payment of all such moneys as aforesaid, and the
enforcing of due obedience to the provisions of this Act,– and may by
such Regulations provide for the forfeiture, or the seizure and
detention of any timber in respect of which the said Regulations have
been infringed, or on which any sum payable in respect thereof has not
been paid, and for the sale of such timber (if not forfeited,) in case
the dues, damages and fine be not paid within the time limited by such
regulations, and the payment thereof out of the proceeds of the sale ;
and if forfeited such timber shall be dealt with as the regulation may
direct:– and may appropriate any such fines in such manner he may see
fit ; and the Governor in Council may by such regulations provide for the
forfeiture of any lease, licence of occupation, licence to cut timber,
or other licence or permission of any kind with respect to such lands,
if the conditions on which such licence or permission is granted are not
observed ; but no such provision imposing any penalty or forfeiture shall
impair or diminish any right or remedy of the Crown to recover any money
or enforce the performance of the conditions of any such sale, lease,
contract, obligation, licence, or permission in the ordinary course of
Publication, effect and proof of Regulations.
38. All Regulations or Orders in Council made
under the next preceding section shall be published in the Canada
Gazette, and being so published shall have the force of law, from the
date of their publication or from such later date as may be therein
appointed for their coming into force ; and any such regulation may be
repealed, amended or re–enacted by any subsequent regulation, and shall
be in force until so repealed or amended unless an earlier period be
therein appointed their ceasing to be in force ; and a copy of any such
Regulations purporting to be printed by the Queen's Printer shall be
primâ facie evidence thereof.
Governor may appoint agents &c., under this Act.
39. The Governor may, from time to time, appoint
officers and agents to carry out this Act, and any Orders in Council
made under it, which officers and agents shall be paid in such manner
and at such rates as the Governor in Council may direct.
Governor in Council may transfer duties under this Act,
to any other
40. The Governor in Council may at any time
assign any of the duties and powers hereby assigned to and vested in the
Secretary of State, to any other member of the Queen's Privy Council for
Canada, and his department, and from the period appointed for that
purpose by any order in Council such duties and powers shall be
transferred to, and vested in such other member of Her Majesty's Privy
Council for Canada and his department.
Yearly report to Parliament.
41. The Secretary of State shall annually lay
before Parliament, within ten days after the meeting thereof, a report
of the proceedings, transactions and affairs of the department during
the year then next preceding.
Repeal of inconsistent enactments.
42. So much of any Act or law as may be
inconsistent with this Act, or as makes any provision in any matter
provided for by this Act, other than such as is hereby made, is repealed,
except only as to things done, obligations contracted, or penalties
incurred before the coming into force of this Act.
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