A Brief History of the Indian Act
Gender inequity, perpetuated through legal definitions of ‘Indian’, can be traced back to 1851. The first definition of ‘Indian’ came before the confederation of Canada in 1850, as a way for colonizers to distinguish between who was or was not entitled to enter or reside on lands reserved for Indigenous peoples.
This first iteration of the legal definition of “Indian”, written by the then Solicitor General, Lewis T. Drummond, was drafted in response to complaints of people laying claim to Indian land “with no connection to communities, and where the uncertain status of people with contested connection to communities resulted in internal strife.”
The 1850’s definition was broad in scope where anyone who married a person of ‘Indian’ blood, would be considered Indian in terms of related entitlements. There were no consultations with First Nations people when drafting this definition, leading almost immediately to protest from First Nations leaders.
Because resources for First Nations people were already being rationed, fears were expressed about white men inheriting entitlements reserved for Indigenous peoples and communities. Rather than address the deficiency of resources, a new piece of legislation was written in 1851 that narrowed the scope of who qualified as ‘Indian’ consequently penalizing First Nations women who married non-Indian men.
Heavily influenced by the sentiments of pre-confederate legislation, the first Indian Act was officially ratified in 1876. It adopted many of the same concepts of its precursors, including the ideas of assimilation, enfranchisement, and the changing definition of Indian.
The 1876 Indian Act also explicitly stipulated that any First Nations woman who married anyone other than an “Indian” or “non-treaty Indian” would themselves cease to be “Indian” under the meaning of the Act.
Almost exactly a century after the law makers of Lower Canada first defined “Indian”, the Canadian federal government through the Indian Act of 1951, established the Indian Register, formalizing registration control of who could qualify for status. If the name of any First Nations man was removed or omitted from the Indian Register, then the names of his wife and children were also automatically removed or omitted.
The 1951 Indian Act also introduced several sexist rules governing entitlement to status. These included:
- The “double mother rule” which revoked the status of individuals at the age of 21 in instances of two consecutive generations of mothers who were not born with entitlement to status;
- The “illegitimate female child rule” which permitted the male children of status men born out of wedlock to register, but which did not entitle their female children to status;
- 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 their non-status wives; and
- Involuntary enfranchisement, which revoked the status of First Nations women and their children when their husbands became enfranchised.
In 1985, Canada began to effect change to the discriminatory parts of the Indian Act in response to a series of legal interventions, often led by First Nations women and the coming into force of section 15 of the Canadian Charter of Rights and Freedoms which, among other things, prohibited discrimination on the basis of sex.
A ruling in favour of the Lovelace case by the United Nations Human Rights Committee (1984) against the backdrop of the signing of the Charter in 1982, provided the political will and legal impetus to remove sex-based discrimination from the registration provisions.
The Indian Act was amended in 1985 by Bills C-31 to remove all sex-based distinctions affecting entitlement to register for status, but legal mechanisms to curtail the number of individuals entitled to status remained, particularly through the second-generation cut-off rule.
Under this rule, an individual who has status under subsection 6(1) of the Indian Act may pass on status to their children. If the other parent of their child also has status, the child would be entitled to status under subsection 6(1); however, if the other parent does not have status, the child will be entitled to status under subsection 6(2).
An individual who has status under subsection 6(2) may pass on status to their children only if the other parent of their child also has status. If the other parent of the child does not have status under the Indian Act, that child will not be entitled to status.
While proponents of these limits on entitlement to status argue that these provisions are necessary for the preservation of Indigenous rights and identity, others argue that federal legislation governing status is inconsistent with the right of Indigenous peoples to self-determination and self-government and, importantly, perpetuates colonial efforts remove Indigenous peoples from their communities and integrate them into non-Indigenous communities.
While Parliament passed Bill C-31 in an effort to conform the Indian Act with the Charter, the differential treatment of the descendants of women who had lost or been denied status based on their sex, created new forms of discrimination under the registration provisions.
This led to a series of court rulings and legislative amendments that ultimately led to the full coming into force of Bill S-3 in August 2019.
The purpose of Bill S-3 was to eliminate all remaining known sex-based inequities under the Indian Act and its coming into force resulted in between 270,000 and 450,000 individuals becoming entitled to register for status.
NWAC is undertaking an assessment of the effectiveness of Bill S-3 in eliminating sex-based inequities under the Act. As part of this assessment, we have identified four gender-based issues that may continue to persist under the registration provisions, summarized below.
We would like to hear from you on these and any other potential or persisting issues under the registration provision. If you would like to share your views, knowledge, perspectives or experiences with us, you can respond to the below online surveys, submit comments on the Discussion Paper, or email us at email@example.com .
Potential Ongoing Issues
“Unknown” or “Unstated” Parentage
The issue of ‘unknown’ or ‘unstated’ parentage refers to when, for any number of circumstances, information about a person’s parents or parental lineage is unknown or unstated on official birth documents.
Historically, the Indian Registrar had a “Proof of Paternity Policy” (the Policy) that made it the applicant’s responsibility to provide very specific types of evidence to qualify for status. Finding this evidence was often challenging or impossible to do.
In the 2017 Gehl v Canada (Attorney General) case, the Ontario Court of Appeal addressed the legality of the burden of proof that was required of individuals to establish that one of their unknown or unstated parents was entitled to register under the Act. While one of the Judges emphasized the importance of government decision-making being informed by Charter values, the majority of the Court found that the Unknown or Unstated Parentage Policy (the “Policy”) set a burden of proof in these circumstances that was unreasonable.
While the Ontario Court of Appeal chose to resolve the Gehl case through principles of fairness in administrative law, concerns remain about the potential infringements of the Policy on equality rights protected under the Charter.
First, proof of identity of a parent is more difficult for a mother to prove than a father. In most situations, it is likely that the biological mother of a child will be known simply by virtue of the woman having to physically birth the child. However, it is much more likely that situations will arise where the mother may not know who the biological father of the child is and cannot provide that information. Thus, if a woman does not know the paternity of her child, that child will have difficulty in proving parentage.
Second, there exists many reasons why a woman may be unwilling or unable to prove the identity of her child’s father. For example, the child could be born of a relationship where the mother is fearful and unable or unwilling to provide the identity of the father; the pregnancy was the result of a relationship with a relative, or the spouse or partner of someone else; or the pregnancy was a result of abuse or sexual assault; or the mother may have had several sexual partners.
Bill S-3 included amendments that worked to address the Ontario Court of Appeal’s Gehl decision by mandating in the legislation the burden of proof that must be met in determinations respecting the entitlement to status of unknown or unstated parents or ancestors of applicants. Specifically, subsection 5(6) of the Indian Act now states that, in determining whether the unknown or unstated parent or ancestor of an applicant was or would have been entitled to status, the Registrar “shall draw from [the evidence] every reasonable inference in favour” of a determination that the unknown/unstated parent or ancestor was entitled to status.
The majority in the Gehl decision held that in certain circumstances, it is sufficient for an applicant to provide “some evidence capable of giving rise to the inference that an unknown father may have had status”.
While the Government of Canada has amended its Unknown or Unstated Parentage Policy since the passage of Bill S-3, it continues to take the position that an applicant must prove on the legal standard of balance of probabilities that the unknown/unstated parent, grandparent or other ancestor is or was entitled to be registered.
This Policy, however, may not be consistent with the decision of the Ontario Court of Appeal or subsection 5(6) of the Indian Act.
The civil legal standard of balance of probabilities (or “preponderance of the evidence”) is a standard that is met where an individual establishes the greatest weight of evidence in support of their position. The Act and the Gehl decision, however, clearly show that the burden of proof in establishing entitlement to status of the relevant parent or ancestor is “any credible evidence” or “some evidence” that supports a reasonable inference of entitlement to status. This is very likely a far lighter burden of proof than balance or probabilities.
Second-Generation Cut-Off Provisions
While the intention of Bill C-31 may have been to redress gender inequality within the Indian Act – to afford the rightful transference of status to children, it raised other barriers for First Nation descendants. With more First Nations people now eligible for status, similar to sentiments expressed in 1851, concerns were raised by First Nations representatives during parliamentary debates of what a growing status base with limited resources might mean.
The Second-Generation Cut-Off provisions (which prevents individuals from passing on status to their children if one of their parents is not entitled to register and the other parent of their child is not entitled to register) were intended to act as a gender-neutral limitation on entitlement to status. Ostensibly, the provisions aim to balance the interests of First Nations in preserving their resources and identities from encroachment with the rights of individuals to membership in their Indigenous communities.
Rather than address resource scarcity, the legislative outcome through Bill C-31 was the creation of a two-tier system of registration within the Indian Act under sections 6(1) and 6(2). While the provisions do not, on their face, make any distinction on the basis of sex, the practical application of these sections of the Indian Act raises concerns with disproportionate effects on women.
For instance, women can face barriers or risks when identifying the other parent of their children that men do not face. Where a mother who is registered under subsection 6(2) seeks to apply for registration for her children, the requirement to provide evidence that can identify the status father of their child can, in some circumstances, be exceedingly difficult, or put the mother at risk of physical, emotional, or social harm.
Although Bill C-31 amended the registration provisions to introduce an ostensibly gender-neutral second-generation cut-off rule, and Bill S-3 created a light burden of proof under the Unknown or Unstated Parentage Policy, there remain concerns that the second-generation cut-off provisions create greater burdens and/or risks for woman than they do for men.
Enfranchisement was a central mechanism in Canada’s efforts to affect cultural genocide against Indigenous peoples whereby a First Nations person was subjected to the compulsory or voluntary loss of Indian Status. Its origin dates back to the Gradual Civilization Act (1857) and the Enfranchisement Act (1869) to “regulate the orderly transition of Aboriginal peoples into the mainstream of Canadian society.” The framework of these early laws, which predated confederation, would in part help shape the Indian Act (1876), where enfranchisement aimed not only to assimilate Indigenous people into the Canadian way of life, but to minimize the number of individuals with rights and entitlements guaranteed to the First Nations.
There were two main paths to enfranchisement under the pre-1985 Indian Act – voluntary and compulsory. Voluntarily, a man with Indian status could apply to become enfranchised if he was considered “capable of assuming the duties and responsibilities of citizenship… [and] supporting himself and his dependents.” Those who did not fit the narrowing definition of “Indian” as prescribed by the Indian Act, were either denied status or, if they already had status, were involuntarily enfranchised based on technicalities of achieved profession, education, marriage, or parental lineage.
An ‘Indian,’ according to the Indian Act (1876), was defined as “any male person of Indian blood reputed to belong to a particular band” including their children and spouses. The voluntary enfranchisement of a man with Indian status automatically led to the involuntary enfranchisement of his spouse and dependent children.
Education and profession were also a path toward compulsory enfranchisement. Status Indians were automatically enfranchised if they earned a degree or became a clergyman, doctor, or lawyer.
In short, enfranchisement created an either-or scenario for Indigenous people: you could be “Indian,” or you could be Canadian, and in many cases, it was Indigenous women who had no choice.
Bill C-31 eliminated both voluntary and involuntary enfranchisement under the Indian Act. While these amendments limit the mechanisms employed the Act to reduce the number of status persons in Canada, there are concerns that Bill S-3 was a missed opportunity to address sex-based inequities related to involuntary enfranchisement of women and their children prior to 1985.
Marital Status Requirements
As part of determining whether one is eligible to register for status, the Indian Act asks: Was an Indigenous woman married at all (in the western legal tradition), and if so, was she married to a status Indian man or a non-Status man? These differences determined whether she could pass Indian status on to her children and future generations, and whether she was entitled to rights and benefits under the Act, such as living on reserve.
For the purposes of these provisions of the Indian Act, marital status refers to marriage between a man and a woman because historic versions Indian Act do not reflect the legal reality of same-sex nor Indigenous customary marriages or other intimate or familial relationships.
Bill S-3 amended the registration provisions of the Indian Act in order to eliminate remaining sex-based inequities; however, a person’s entitlement to status under the Act may still be affected by the marital status of their parents.
A person who is a “direct descendant” of someone who lost or was denied status under the pre-1985 Indian Act on the basis of certain sexist provisions, may be entitled to status. This entitlement, however, will be affected by the applicant’s date of birth and the marital status of their parents. Specifically, in these circumstances, if the applicant was born after 16 April 1985, they will only be entitled to status if their parents had been married to each other at any time before 17 April 1987.
While these provisions likely reflect the fact that a person in such circumstances would not have been denied entitlement to register under the Act because of the marital status of their parents after the passage of Bill C-31 in 1985, there remain concerns that these distinctions on the basis of age and marital status may have adverse effects on applicants on the basis of their age or the marital status of their parents.
Have Your Say
The Native Women’s Association of Canada is currently seeking input on how Bill S-3 and the current status registration provisions are actually impacting Indigenous women, girls, and gender diverse peoples. NWAC also wants to know what changes, if any, do Indigenous women, girls and gender diverse people want to see happen with the status registration process and the current Indian Act provisions.
For more information on Bill S-3’s changes to the registration provisions that may affect your entitlement to status, click here.
We have prepared a discussion paper on gender-based issues related to Bill S-3 changes to the Indian Act. You can download the discussion paper or email us at firstname.lastname@example.org .
Additional Comments Are Welcome!
You are also invited to share any additional comments related to the registration provisions of the Indian Act. Emails received about S-3 can inform our analysis and reporting on these issues.
Please send additional comments to email@example.com.