Dear Sir or Madam:
Today we write to you regarding the Indian Act’s negative impact on Aboriginal people in Canada. The Indian Act is the primary statute the federal government enacted to administer Indian status, and regulate Indian reserves.1 The Act has received significant backlash from Indigenous communities due to highly discriminatory sections, and the paternalistic nature of the document.2 The Indian Act has historically discriminated against Indigenous women, awarding them fewer rights than Indigenous men.3 Today’s post will provide a brief history of the Indian Act; then discuss sex discrimination within the Act and reactions to the legislation.
The Indian Act governs how the federal government interacts with Indigenous peoples. First Nations people are the only subjects of the legislation; Metis and Inuit people are not included.4 The 1850 Act for the better protection of the Lands and Property of the Indians in Lower Canada was one of the first pieces of legislation to determine who was classified as a legal Indian.5 Status was granted based on bloodline and all descendants of a legal Indian would also receive Indian status.6 Further, any non-status individual who married a status Indian would receive legal status.7 Status would later be regulated under the Indian Act of 1867.
The federal government was granted constitutional powers over “Indians, and Lands reserved for the Indians” under s. 91(24) of the British North America Act.8 Any legislation enacted for the purpose of governing First Nations individuals is the exclusive control of the federal government. The Indian Act of 1867 was created when the federal government combined the Gradual Civilization Act and the Gradual Enfranchisement Act into one document.9 The purpose of the document was to control First Nations peoples and assimilate them into a European-type culture.10 Early provisions of the Act were highly discriminatory towards all Indigenous people. The Act forced Indigenous children into residential schools, banned religious potlatches (gift giving ceremonies), banned dancing, and made it illegal to hire lawyers to bring claims against the government unless they had government consent.11 Important aspects of Indigenous cultures were outlawed in an attempt to assimilate Indigenous people into society.
One of the most problematic and contentious parts of the Indian Act is a set of sections pertaining to Indian status. Critics of the Act and Indigenous advocates suggest that the administration of status is highly discriminatory against women.12 Even with several amendments to the Indian Act since 1867, status continues to be passed along through male lineage, never female lineage.13 The federal government has been aware of this sex discrimination since the 1960s, but the discrimination still remains.14 The government attempted to address this issue by passing Bill C-31 which allowed women who had lost their Indian status, through marriage to a non-status individual, to apply for status reinstatement.15 Even with the new amendments discrimination remains because women who marry out can only pass their status to one generation of children, whereas men who marry out are able to pass status through two generations.16
Indigenous women today still “face multiple challenges with respect to securing status for themselves and their children.”17 The hardship of securing status can cause negative social interactions by creating a subset of Indigenous women that are seen as less pure than those with full legal status.18 This system of classification perpetuates violence against Indigenous women because they are viewed as less pure, causing profound psychological stress and trauma.19 The government needs to find a less discriminatory practice for classifying legal status. In the future, we can only hope that women and men will receive the same rights under the Indian Act and the sex discrimination will cease to exist.
Your Humble and Obedient Servants,
1 William B Henderson, “Indian Act” (7 February 2006), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/indian-act/>.
2 Gwen Brodsky, “Indian Act Sex Discrimination: Enough Inquiry Already, Just Fix It” (2016) 28 CJWL 314 at 314.
3 Ibid at 314.
4 Henderson, supra note 1.
8 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24), reprinted in RSC 1985, Appendix II, No 5.
12 Brodsky, supra note 2 at 315.
13 Bob Joseph, “Indian Act and Women’s Status Discrimination Via Bill C31 and Bill C3” (9 July 2012), Working Effectively with Indigenous Peoples™ (blog), online: <www.ictinc.ca/indian-act-and-womens-status-discrimination-via-bill-c-31-bill-c-3>.
14 Brodsky, supra note 2 at 315.
15 Henderson, supra note 1.
16 Joseph, supra note 13.
17 Inter-American Commission on Human Rights, Missing and Murdered Indigenous Women in British Columbia, Canada OEA/Ser.L/V/II, Doc 30/14 21 (2014), Organization of American States <www.oas.org/en/iachr/reports/pdfs/Indigenous-Women-BC-Canada-en.pdf> at para 69.
18 Ibid at para 69.
19 Ibid at para 69.