A Short History of Sex-Based Inequities in the Indian Act

It has long been known that since its creation, the Indian Act has discriminated against women. For 116 years, a status woman who married a non-status man would lose her status along with treaty rights, health benefits, property rights and the right to reside on reserve. Status men, on the other hand, who married non-status women not only kept their status and rights but actually passed these onto their wives and children.

Naturally, Indigenous communities – particularly women – were angry. Something had to be done.

Baby steps were taken to clean up the Indian Act. In 1970, the Royal Commission on the Status of Women pointed out that there were indeed sex-based inequities embedded in the Indian Act and that legislation should be put in place to repeal these sections. Little more was done.

With the repatriation of the Canadian Constitution in 1982, the tides began to turn and so began consultations and negotiations to bring the Indian Act in line with the new Constitution and the Charter’s sections on gender equality.

Bill C-31 came out of the woodwork three years later, intending to reverse this discrimination; however, it added new levels of discrimination by creating different categories of status.  Women whose status was reinstated through this bill were given second class standing in the form of 6(1)(c) status, while men retained their 6(1)(a) status.

Thus, descendants of reinstated women faced more red tape, more convoluted legislation to decipher and more discrimination, both legislatively and socially. In fact, a 6(1)(c) status tells the community that these women have “married out” or that one’s mother or grandmother has married out, which presents even more opportunity for discrimination.

Almost 30 years later and after more than twenty years of litigation, another piecemeal reform passed, hoping to address the problems in Bill C-31. Bill C-3 was the result of a battle hard won by Sharon McIvor and her son, Jacob Grismer, after the Supreme Court of British Columbia found that the restrictive and discriminatory registration provisions faced by descendants of reinstated women were unconstitutional and violated section 15 of the Canadian Charter of Rights and Freedoms.

As its solution, Bill C-3 gave 6(2) status to the grandchildren of women who regained status under Bill C-31. However, grandchildren who trace Indigenous ancestry through the maternal line are still denied status if they were born before September 4, 1951; thus, Bill C-3 continues the Indian Act’s tradition of legislated sex-based inequities by maintaining both this cut-off date and the status hierarchy put in place in 1985.

As evidenced by the numerous amendments, countless reports and years of exhausting litigation, it becomes clear that the Indian Act is riddled with flaws and discrimination that narrowly focused legislation simply isn’t solving. Experts continue to condemn it as a blatant human rights abuse; the Act has even been described by some as a form of apartheid. So why does it still exist? Efforts to abolish the Indian Act have been met with great resistance, largely due to the rights – albeit limited rights – it gives First Nations and because of the full and proper consultation that would be needed.

Bill S-3 is yet another piecemeal reform put forth by the government as it tries to make sense of the Indian Act in this day and age. The Native Women’s Association of Canada is hopeful that following the Phase 2 consultations taking place this year, the federal government will finally remove all discrimination from the Indian Act and put an end to centuries-long injustice.