Indian Act (R.S.C., 1985, c. I-5)

Distribution of Property on Intestacy

Marginal note:Surviving spouse’s share

• 48 (1) Where the net value of the estate of an intestate does not, in the opinion of the Minister, exceed seventy-five thousand dollars or such other amount as may be fixed by order of the Governor in Council, the estate shall go to the survivor.

• Marginal note:Idem

  (2) Where the net value of the estate of an intestate, in the opinion of the Minister, exceeds seventy-five thousand dollars, or such other amount as may be fixed by order of the Governor in Council, seventy-five thousand dollars, or such other amount as may be fixed by order of the Governor in Council, shall go to the survivor, and

  • (a) if the intestate left no issue, the remainder shall go to the survivor,

  • (b) if the intestate left one child, one-half of the remainder shall go to the survivor, and

  • (c) if the intestate left more than one child, one-third of the remainder shall go to the survivor,

  and where a child has died leaving issue and that issue is alive at the date of the intestate’s death, the survivor shall take the same share of the estate as if the child had been living at that date.

• Marginal note:Where children not provided for

  (3) Notwithstanding subsections (1) and (2),

  • (a) where in any particular case the Minister is satisfied that any children of the deceased will not be adequately provided for, he may direct that all or any part of the estate that would otherwise go to the survivor shall go to the children; and

  • (b) the Minister may direct that the survivor shall have the right to occupy any lands in a reserve that were occupied by the deceased at the time of death.

• Marginal note:Distribution to issue

  (4) Where an intestate dies leaving issue, his estate shall be distributed, subject to the rights of the survivor, if any, per stirpes among such issue.

• Marginal note:Distribution to parents

  (5) Where an intestate dies leaving no survivor or issue, the estate shall go to the parents of the deceased in equal shares if both are living, but if either of them is dead the estate shall go to the surviving parent.

• Marginal note:Distribution to brothers, sisters and their issue

  (6) Where an intestate dies leaving no survivor or issue or father or mother, his estate shall be distributed among his brothers and sisters in equal shares, and where any brother or sister is dead the children of the deceased brother or sister shall take the share their parent would have taken if living, but where the only persons entitled are children of deceased brothers and sisters, they shall take per capita.

• Marginal note:Next-of-kin

  (7) Where an intestate dies leaving no survivor, issue, father, mother, brother or sister, and no children of any deceased brother or sister, his estate shall go to his next-of-kin.

• Marginal note:Distribution among next-of-kin

  (8) Where an estate goes to the next-of-kin, it shall be distributed equally among the next-of-kin of equal degree of consanguinity to the intestate and those who legally represent them, but in no case shall representation be admitted after brothers’ and sisters’ children, and any interest in land in a reserve shall vest in Her Majesty for the benefit of the band if the nearest of kin of the intestate is more remote than a brother or sister.

• Marginal note:Degrees of kindred

  (9) For the purposes of this section, degrees of kindred shall be computed by counting upward from the intestate to the nearest common ancestor and then downward to the relative, and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree.

• Marginal note:Descendants and relatives born after intestate’s death

  (10) Descendants and relatives of an intestate begotten before his death but born thereafter shall inherit as if they had been born in the lifetime of the intestate and had survived him.

• Marginal note:Estate not disposed of by will

  (11) All such estate as is not disposed of by will shall be distributed as if the testator had died intestate and had left no other estate.

• Marginal note:No community of property

  (12) There is no community of real or personal property situated in a reserve.

• (13) and (14) [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 9]

• Marginal note:Equal application to men and women

  (15) This section applies in respect of an intestate woman as it applies in respect of an intestate man.

• (16) [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 9]

Marginal note:Devisee’s entitlement

49 A person who claims to be entitled to possession or occupation of lands in a reserve by devise or descent shall be deemed not to be in lawful possession or occupation of those lands until the possession is approved by the Minister.

Marginal note:Non-resident of reserve

• 50 (1) A person who is not entitled to reside on a reserve does not by devise or descent acquire a right to possession or occupation of land in that reserve.

• Marginal note:Sale by superintendent

  (2) Where a right to possession or occupation of land in a reserve passes by devise or descent to a person who is not entitled to reside on a reserve, that right shall be offered for sale by the superintendent to the highest bidder among persons who are entitled to reside on the reserve and the proceeds of the sale shall be paid to the devisee or descendant, as the case may be.

• Marginal note:Unsold lands revert to band

  (3) Where no tender is received within six months or such further period as the Minister may direct after the date when the right to possession or occupation of land is offered for sale under subsection (2), the right shall revert to the band free from any claim on the part of the devisee or descendant, subject to the payment, at the discretion of the Minister, to the devisee or descendant, from the funds of the band, of such compensation for permanent improvements as the Minister may determine.

• Marginal note:Approval required

  (4) The purchaser of a right to possession or occupation of land under subsection (2) shall be deemed not to be in lawful possession or occupation of the land until the possession is approved by the Minister.

Marginal note:Regulations

50.1 The Governor in Council may make regulations respecting circumstances where more than one person qualifies as a survivor of an intestate under section 48.

Mentally Incompetent Indians

Marginal note:Powers of Minister generally

• 51 (1) Subject to this section, all jurisdiction and authority in relation to the property of mentally incompetent Indians is vested exclusively in the Minister.

• Marginal note:Particular powers

  (2) Without restricting the generality of subsection (1), the Minister may

  • (a) appoint persons to administer the estates of mentally incompetent Indians;

  • (b) order that any property of a mentally incompetent Indian shall be sold, leased, alienated, mortgaged, disposed of or otherwise dealt with for the purpose of

    • (i) paying his debts or engagements,

    • (ii) discharging encumbrances on his property,

    • (iii) paying debts or expenses incurred for his maintenance or otherwise for his benefit, or

    • (iv) paying or providing for the expenses of future maintenance; and

  • (c) make such orders and give such directions as he considers necessary to secure the satisfactory management of the estates of mentally incompetent Indians.

• Marginal note:Property off reserve

  (3) The Minister may order that any property situated off a reserve and belonging to a mentally incompetent Indian shall be dealt with under the laws of the province in which the property is situated.

Guardianship

Marginal note:Property of infant children

52 The Minister may administer or provide for the administration of any property to which infant children of Indians are entitled, and may appoint guardians for that purpose.

Money of Infant Children

Marginal note:Distributions of capital

• 52.1 (1) The council of a band may determine that the payment of not more than three thousand dollars, or such other amount as may be fixed by order of the Governor in Council, in a year of the share of a distribution under paragraph 64(1)(a) that belongs to an infant child who is a member of the band is necessary or proper for the maintenance, advancement or other benefit of the child.

• Marginal note:Procedure

  (2) Before making a determination under subsection (1), the council of the band must

  • (a) post in a conspicuous place on the reserve fourteen days before the determination is made a notice that it proposes to make such a determination; and

  • (b) give the members of the band a reasonable opportunity to be heard at a general meeting of the band held before the determination is made.

• Marginal note:Minister’s duty

  (3) Where the council of the band makes a determination under subsection (1) and notifies the Minister, at the time it gives its consent to the distribution pursuant to paragraph 64(1)(a), that it has made that determination and that, before making it, it complied with subsection (2), the Minister shall make a payment described in subsection (1) for the maintenance, advancement or other benefit of the child to a parent or person who is responsible for the care and custody of the child or, if so requested by the council on giving its consent to that distribution, to the council.

Marginal note:Money of infant children of Indians

52.2 The Minister may, regardless of whether a payment is made under section 52.1, pay all or part of any money administered by the Minister under section 52 that belongs to an infant child of an Indian to a parent or person who is responsible for the care and custody of the child or otherwise apply all or part of that money if

• (a) the Minister is requested in writing to do so by the parent or the person responsible; and

• (b) in the opinion of the Minister, the payment or application is necessary or proper for the maintenance, advancement or other benefit of the child.

Marginal note:Attaining majority

• 52.3 (1) Where a child of an Indian attains the age of majority, the Minister shall pay any money administered by the Minister under section 52 to which the child is entitled to that child in one lump sum.

• Marginal note:Exception

  (2) Notwithstanding subsection (1), where requested in writing to do so before a child of an Indian attains the age of majority by a parent or a person who is responsible for the care and custody of the child or by the council of the band of which the child is a member, the Minister may, instead of paying the money in one lump sum, pay it in instalments during a period beginning on the day the child attains the age of majority and ending not later than the day that is three years after that day.

Marginal note:Relief

52.4 Where, in a proceeding in respect of the share of a distribution under paragraph 64(1)(a) or of money belonging to an infant child that was paid pursuant to section 52.1, 52.2 or 52.3, it appears to the court that the Minister, the band, its council or a member of that council acted honestly and reasonably and ought fairly to be relieved from liability in respect of the payment, the court may relieve the Minister, band, council or member, either in whole or in part, from liability in respect of the payment.

Marginal note:Effect of payment

• 52.5 (1) The receipt in writing from a parent or person who is responsible for the care and custody of an infant child for a payment made pursuant to section 52.1 or 52.2

  • (a) discharges the duty of the Minister, the band, its council and each member of that council to make the payment to the extent of the amount paid; and

  • (b) discharges the Minister, the band, its council and each member of that council from seeing to its application or being answerable for its loss or misapplication.

• Marginal note:Idem

  (2) The receipt in writing from the council of the band of which an infant child is a member for a payment made pursuant to section 52.1

  • (a) discharges the duty of the Minister to make the payment to the extent of the amount paid; and

  • (b) discharges the Minister from seeing to the application of the amount paid or being answerable for its loss or misapplication.

Management of Reserves and Surrendered and Designated Lands

Marginal note:Transactions re surrendered and designated lands

• 53 (1) The Minister or a person appointed by the Minister for the purpose may, in accordance with this Act and the terms of the absolute surrender or designation, as the case may be,

  • (a) manage or sell absolutely surrendered lands; or

  • (b) manage, lease or carry out any other transaction affecting designated lands.

• Marginal note:Grant where original purchaser dead

  (2) Where the original purchaser of surrendered lands is dead and the heir, assignee or devisee of the original purchaser applies for a grant of the lands, the Minister may, on receipt of proof in such manner as he directs and requires in support of any claim for the grant and on being satisfied that the claim has been equitably and justly established, allow the claim and authorize a grant to issue accordingly.

• Marginal note:Departmental employees

  (3) No person who is appointed pursuant to subsection (1) or who is an officer or a servant of Her Majesty employed in the Department may, except with the approval of the Governor in Council, acquire directly or indirectly any interest in absolutely surrendered or designated lands.

Marginal note:Assignments

54 Where absolutely surrendered lands are agreed to be sold and letters patent relating thereto have not issued, or where designated lands are leased or an interest in them granted, the purchaser, lessee or other person who has an interest in the absolutely surrendered or designated lands may, with the approval of the Minister, assign all or part of that interest to any other person.

Marginal note:Surrendered and Designated Lands Register

• 55 (1) There shall be maintained in the Department a register, to be known as the Surrendered and Designated Lands Register, in which shall be recorded particulars in connection with any transaction affecting absolutely surrendered or designated lands.

• Marginal note:Conditional assignment

  (2) A conditional assignment shall not be registered.

• Marginal note:Proof of execution

  (3) Registration of an assignment may be refused until proof of its execution has been furnished.

• Marginal note:Effect of registration

  (4) An assignment registered under this section is valid against an unregistered assignment or an assignment subsequently registered.