Introduction
The Indian Act was created to control and assimilate Indigenous peoples and First Nations in Canada. From inception, the Indian Act has perpetuated gender inequity through legal definitions of ‘Indian,’ determining – without dialogue or input from First Nations and Indigenous leaders – who may be considered ‘Indian’ and therefore granted Indian status and related entitlements. Despite the introduction of several amendments and new legislation intended to rectify gender and sex-based inequities in the Indian Act, gender-based discrimination and issues remain to this day.
The Indian Act: 1876 to 1951
Ratified in 1876, the Indian Act defined an ‘Indian’ as “any male person of Indian blood.” Status was therefore passed through the male bloodline, meaning children of status men also received status under the Act. The 1876 Act also explicitly stipulated that a First Nations woman who married anyone other than an ‘Indian’ or ‘non-treaty Indian’ would themselves cease to be an ‘Indian.’ A status man, however, could marry a non-status woman and retain his status – with is partner and any offspring also gaining status rights.
The Indian Act of 1876 was inherently disempowering and discriminatory towards First Nations and Indigenous women. It extinguished Indigenous self-governance structures – many of which were inclusive of women – and prohibited First Nations women from participating in the government-imposed band system, which replaced existing Indigenous governance structures. The Act also denied women the right to possess marital property, such as housing and assets. If a woman’s husband passed, divorced, or simply left, they had no right to stay in their homes.
The discriminatory elements of the Indian Act towards women were catastrophic. By being denied the rights to live on-reserve, First Nation and Indigenous women lost access to treaty and health benefits, and experienced extensive cultural identity loss. By “losing” or being denied status via restrictive registration stipulations, First Nations and Indigenous women became displaced, impoverished, politically disenfranchised, and socially excluded.
The 1951 Indian Act Amendments
In 1951, a new version of the Indian Act was created, in part to address some of the most offensive, restrictive, and culturally discriminatory elements of the 1876 Act. For example, bans on cultural practices such as the potlatch and Sun Dance ceremonies were removed. The 1951 Act also officially created the centralized “Indian Register,” formalizing control of who could qualify for status.
The 1951 Act, however,introduced further gender-based discriminatory elements that continued to penalize First Nations and Indigenous women. These included:
- If a First Nations man was removed or omitted from the Indian Register, the names of his wife and children were also automatically removed or omitted.
- The “double mother rule,” which revoked the status of individuals at the age of 21 if born to two consecutive generations of mothers who acquired status through a marriage.
- The “illegitimate female child rule,” which permitted male children of status men born ‘out of wedlock’ to register, but not their female children.
- Continuation of the “marry-out rule,” which caused First Nations women to lose their status upon marrying a non-status person, but which permitted First Nations men to extend status to non-status wives.
- Involuntary enfranchisement, which revoked the status of First Nations women and their children when their husbands became enfranchised.
Activism and Bill C-31
Ongoing exclusion and the associated negative effects incited much activism, protest, and litigation to draw attention to the sex and gender-based discriminations experienced by Indigenous and First Nations women as a result of the Indian Act. Key figures included Mary Two-Axe Earley, Jeanette Corbiere Lavell, Yvonne Bedard, and Sandra Lovelace, who legally challenged the Canadian government over the discriminatory aspects of the Indian Act, such as their loss of status due to “marrying out.” The efforts of these women, combined with section 15 of the Canadian Charter of Rights and Freedoms, which prohibits discrimination on the basis of sex, resulted in amendments to the Indian Act in 1985 under Bill C-31.
Bill C-31 amended the Indian Act to remove all sex-based distinctions affecting entitlement to register for status and allowed women who had “married out” – and those who by other means lost their status and the associated rights and benefits – to apply for restoration of their status, which was also extended to their children. Legal mechanisms remained, however, that still affected status, such as the “second generation cut-off rule” in which an individual who has status under subsection 6(2), was not permitted to transfer status to their children.
Recent Amendments
Recognizing Bill-31 did not completely remove sex and gender-based discrimination, several legal challenges (McIvor v. Canada and Descheneaux v. Canada) resulted in further bills to remove remaining sex-based discriminatory elements of the Indian Act.
McIvor v. Canada challenged the “second generation cut-off rule.” Sharon McIvor had her status reinstated under section 6(1)(c) of the 1985 Indian Act. McIvor’s son, however, had status under section 6(2), meaning he could not pass on status to his children. McIvor argued this was discriminatory – her children’s status rights are not equal to those of a man with status, simply because she is a woman. McIvor’s grandchildren also would not receive status under the Act. The Canadian government introduced Bill C-3 in 2011, granting 6(2) status to grandchildren of women who regained status in 1985. However, Bill C-3 did not address a further inequality that directly affected the great-grandchildren of such women – thereby not bringing matrilineal entitlement to treaty status registration in line with that of patrilineal entitlement in similar circumstances.
The Descheneaux case addressed the above, and several other lingering discriminatory elements of the Indian Act, known as the “cousins issue” and the “siblings issue”. Bill S-3, first introduced in parliament in 2017, addressed these issues and after much consultation and delays, came into force in August 2019. After the passage of S-3, the NWAC estimates between 270,000 and 450,000 individuals became entitled to register for status.
Lingering Discrimination
Despite major overhauls to the Indian Act intended to remove sex and gender-based discrimination, the Native Women’s Association of Canada (NWAC) suggests recent amendments remain imperfect, and discrimination and denial of status continues to be possible, particularly regarding historical instances of involuntary enfranchisement and marital requirements before 1985.
Additionally, a June 2022 report from the Senate Committee on Aboriginal Peoples states, “we find that narrow, piecemeal changes to the Indian Act in 1985, 2010, and 2017 have exacerbated the problems by establishing incomprehensible and unnecessarily complex categories of registration.”
Currently, status eligibility and rights exist today in tension with Canada’s human rights laws. The Supreme Court of Canada upheld Indigenous peoples’ inherent right to self-determination; however, the Indian Act ultimately continues to impede those who seek to exercise this right.