Significant Changes to Indian Status Rules to Address Discrimination against Indigenous Women

On August 15, 2019, significant changes came into force in the laws that govern “status” under the Indian Act. 

What is status and why does it matter?

 “Status” is a term people often use to describe the entitlement to be registered under the Indian Act and to receive the benefits that are associated with registration under the Act– like tax exemptions, extended health coverage, and financial assistance with post-secondary education.  In some (though not all) communities, status is also connected to membership in a particular band and therefore the right to live on reserve, to access band-run programs and services, and to participate in community life by voting in band elections. [1] 

Why did the law change?

The Indian Act status provisions changed because they have for many years discriminated against First Nations women and their descendants.

Before 1985, this discrimination was clear on the face of the Indian Act. For example, First Nations men were entitled to “pass on” their status to their wives, and to any children, regardless of whether their wives were First Nations.  First Nations women, on the other hand, would lose their status if they married non-First Nations men; any children they had with those men would not be entitled to status.  Over generations, this meant that many thousands of women and their descendants lost their status.

In 1985, in response to legal challenges from Indigenous women like Jeanette Corbiere Lavell, Yvonne Bedard, and Sandra Lovelace, these “marrying out” provisions were removed from the Act.  Women who had “married out” were reinstated under s. 6(1)(c) of the new Act.  Under the new regime, the government also implemented a “second generation cut-off” – a system by which status is lost after two generations of mixed (status and non-status) parentage.  

Discrimination continued under the new provisions because the provisions preserved the rights that the descendants of First Nations men had acquired under previous versions of the Act under s. 6(1)(a), but did not fully restore status to the descendants of women who had lost status as a result of the old discriminatory rules.   In other words, the children and grandchildren of Indigenous women who had “married out” were treated worse than the children and grandchildren of Indigenous men who had “married out”.

Since 1985, these provisions have been subject to a number of challenges in the courts that have highlighted this ongoing discrimination.  Sharon McIvor, a woman who had lost her status by marring brought one successful challenge that forced the government to make some amendments to the Act, adding another new category under s. 6(1)(c).    It is only recently, with further legal challenges by Stephane Descheneaux, Susan Yantha and Tammy Yantha; with the recommendation of the National Inquiry into Missing and Murdered Indigenous Women and Girls; and with the advocacy of Indigenous women like Sharon McIvor, Lynn Gehl, Dr. Pamela Palmater and others, that the government agreed to make bigger changes to remove the sex discrimination that remained in the Indian Act.

What are the new rules?

The new provisions are complex – just like the old provisions.   

The new rules mean that descendants born prior to April 17, 1985 to women who lost Indian status or were removed from band lists because of their marriage to a man without status dating back to 1869 will be entitled to status.  This means that descendants of First Nations women who lost status by “marrying out” are going to be treated equally to the descendants of First Nations men who “married out”.   If your parent, grandparent or great-grandparent lost status because they “married out”, or because their mother “married out”, or because their name was deleted from the register because their father did not have status, this new rule might mean that you are now entitled to status.  

In addition, there are some changes in how the provisions are structured. All the different categories of people entitled to status have been renumbered as subsections under s. 6(1)(a) of the Act– an effort to address the perception that the women and their children who had been reinstated under s. 6(1)(C) were “less than” those registered under s. 6(1)(a).

There are also some new provisions that deal with what happens when a child’s paternity is unknown or unstated on their birth certificate.  The new provisions say that the Registrar will consider all the evidence about whether it is likely that the unknown or unstated parent had status, and will not just assume that they were not entitled to status.   Applicants do not need to prove the name or identity of their unknown or unstated parent in order to get the Registrar to accept that that parent likely had status.

The second-generation cut-off still applies under the new status regime.  That means that status is still lost after two generations of mixed (status and non-status) parentage.

What are the challenges?

One of the big questions now will be whether the government provides enough funding to communities and to government-run programs like the Non-Insured Health Benefits Program to accommodate all the people entitled to status as a result of these changes.  Underfunding was already a real problem in government programs serving First Nations.  To make these changes to the Indian Act without providing significant additional funds will place an unfair burden on communities.

In addition, at the end of the day, Canada really has no business deciding who and who is not legitimately First Nations.  Citizenship and belonging is a matter for First Nations’ own laws, not Canada’s laws.  To get there, way bigger changes will be needed.

[1] Olthuis, Kleer Townshend LLP, Aboriginal Law Handbook, 4^th ed (Toronto: Carswell, 2011) at 247-248; McIvor,  v Canada, 2009 BCCA 153 at para 70.