Under the Constitution Act, 1867, Canada’s federal government is tasked with full responsibility for Aboriginal peoples (Indians) and their land. In 1876 the Parliament enacted the Indian Act, which defined who met the criteria for Indian Status, and outlined the rights given to Indians. From Canada’s birth in the 1800s, until the mid twentieth century, the federal government actively engaged in a policy of assimilation. Aboriginal cultural practices were outlawed, and large numbers of Aboriginal peoples either lost their status, or were never given it at all. The Indian Act developed this discriminatory policy. Section 12(1)(b) of the act even stated that “a woman who married a person who is not an Indian … [is] not entitled to be registered.” This section was not only racist, but sexist, and deprived thousands of women and their children of the Indian status they deserved.
In 1982, a Charter of Rights and Freedoms was entrenched in Canada’s constitution. This charter solidified in law, among many other rights, the equality of all Canadians, man or woman. With the Charter’s passing, many of Canada’s laws had to be amended to bring them in line with the constitution’s new provisions on equality. One of these laws was the Indian Act.
On June 28, 1985, Bill C-31, an Act to Amend the Indian Act, was passed. These amendments, according to one of a series of information sheets produced by the Department of Indian Affairs and Northern Development at the time, were guided by the three principles of “[the] removal of discrimination; restoring status and membership rights; and increasing control of Indian bands over their own affairs.”
One of the major changes to the Indian Act in 1985 was the elimination of sexually discriminatory rules that governed registration as a Status Indian. Along with restoring the status of women who had previously lost it due to marrying a non-Indian, Bill C-31 ensured that women who married another Indian were not automatically removed from their band and put into their husband’s. The amendments to the Indian Act in 1985 also affected the children of these recently restored women. These children were given the opportunity to be registered as an Indian, and all children with an Indian parent were ensured status under Bill C-31, whether they were born in or out of wedlock, and whether or not they were adopted.
While Bill C-31 ended one form of discrimination toward Aboriginal women, it created others. With the restoring of status to so many women, overcrowding in Canada’s reserves became a problem. There are cases where band councils would deny entry to recently reinstated women if there was not enough space. As well, if a reinstated woman married a non-Indian man, her children would not be eligible for Indian status, even if she was Indian by birth, even though women who only became a Status Indian by marriage could pass status to their children.
Another inequality created by Bill C-31 was the need for First Nations women to state the status of the father before their children could be registered as Indians. In examples where the identity of the father needed to be protected, or was unknown, this posed a problem. If the paternity was not stated on the birth certificate, the father was considered by the government to be non-status. Not having an Indian father would mean that a child would be given a lesser Indian status, known as Section 6(2) status, or would not be given status at all.
Canada’s Indian Act is a deeply flawed piece of legislation. From its origins as a vehicle to assimilation, to present day inequalities, its abolishment and replacement is long overdue. Yet Canada did progress in the 1980s with Bill C-31. Perhaps with the renewed effort to abolish and replace the Act, led by the Hon. Bob Rae, Canada will progress again.
– Adam Quirk
Native Women’s Association of Canada: Aboriginal Women and Bill C-31, An Issue Paper
Legislative Summary of Bill C-3 (2010): Gender Equity in Indian Registration Act
Liberal Leader Bob Rae Launches Debate on His Private Members Motion to Replace the Indian Act
Assembly of First Nations National Chief Says Work to Move Beyond Indian Act must be Led by First Nations