The Controversial and Troublesome
1985 Amendment to the Indian Act
The Indian Act
An Act to Amend the Indian Act (S.C.-1985, C. 27), commonly referred to as Bill C-31, was passed in April 15, 1985 to coincide with the coming into force of s. 15 of the Charter of Rights and Freedoms, to restore band membership to thousands of women who lost their Indian Status when they married non-Indians, pursuant to former s.12(1)(b) of the Indian Act.
The enactment of Bill C-31 redefined who is and who is not an Indian within the meaning of the Indian Act. Since 1985, all status Indians are now registered under Section 6 of the Indian Act. This section is broken down into two sub-sections 6(1) and 6(2). If an individual can prove he/she has two parents entitled to Indian status he/she would be registered under Section 6(1). If an individual is deemed to have only one Indian parent he/she is registered under Section 6(2). Those individuals registered under Section 6(2) must marry a status Indian to pass the status on.
Gender Equity in Indian Registration Act
Gender Equity in the Indian Registration Act
On December 15, 2010 Bill C-3: Gender Equity in Indian Registration Act received Royal Assent. The Governor in Council has announced that effective January 31, 2011, the Gender Equity in Indian Registration Act came into force.
This bill amends provisions of the Indian Act that the Court of Appeal for British Columbia found to be unconstitutional in the case of McIvor v. Canada. The bringing into force of Bill C-3 will ensure that eligible grand-children of women who lost status as a result of marrying non-Indian men will become entitled to registration (Indian status). As a result of this legislation approximately 45,000 persons will become newly entitled to registration.
Perspective - Citizenship - Nationhood
Status / non-Status Indians
Determining First Nations citizenship
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Legislation to amend Section 6(1) of the Indian Act
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Congratulations Sharon McIvor
The Indian Act will be changed
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'Status Indians' face threat of extinction
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Violation of Charter of Rights Confirmed
BC Court of Appeal delivers its judgment in Sharon McIvor's
Indian Act lawsuit
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BC Supreme Court decision affirms the need to change the Indian Act
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PERSPECTIVE - No More Status Indians?
Anishinabek Nation Grand Council Chief defines citizenship
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March 2006 Statistics Canada Report on Women
Registration under the Indian Act
Bill C-31 legislative changes to the Indian Act
It should be noted that in the past, legislation regarding the registration of
Indian people treated women and men differently. Prior to 1985, under
certain provisions in the Indian Act, status Indian women who married nonstatus men (Aboriginal or non-Aboriginal) lost their registered Indian
status, and as a result, their First Nation (band) membership. As well, these
women could no longer pass registered Indian status on to their children.
The opposite was true for status Indian men. Non-status women
(Aboriginal or non-Aboriginal) who married status Indian men were
automatically conferred Indian status.
Changes were made to the Indian Act in 1985 through Bill C-31, which
allowed many women and their children to reclaim Indian status, and, in
some cases, their First Nation (band) membership. Others who had
voluntarily or involuntarily lost their Indian status through other provisions
of the Indian Act could also apply to have their status restored. Bill C-31 introduced new inheritance rules regarding the passing of registered Indian status from parents to children. Both parents now must have registered Indian status to pass Indian status on to their children. An
exception occurs when at least one parent has been registered under section 6(1) of the legislation. In this case, if one parent is registered under 6(1) and the other parent is not registered, children remain eligible for registration under section 6(2). However, a parent registered under 6(2) can not pass registered Indian status to a child unless the other parent is also a status Indian.
A majority of Aboriginal women are registered under the Indian Act. In
2001, almost 290,000 Aboriginal females, 58% of the total, were registered, as were 56% of Aboriginal males. There is considerable variation, though, in the shares of the different Aboriginal groups who are registered under the Indian Act. That year, 83% of North American Indian women had registered Indian status, whereas the figures were only 11% of Metis women and 2% of Inuit women.
The registered Indian population has undergone significant growth in the
past couple of decades. In fact, females have accounted for a
disproportionate share of this growth since the early 1980s. Between 1981
and 2001, for example, there was a 98% rise in the number of women with
registered Indian status, while the number of registered Indian males rose by 88% in the same period. Legislative changes to the Indian Act have likely made a contribution to this growth, along with factors such as high birth rates, longer life expectancy and improved enumeration.
The growth of the registered Indian population is particularly evident in off reserve areas. Indeed, the number of female registered Indians living off reserve rose by 141% between 1981 and 2001, while the number of their male counterparts grew by 135% in the same period. In light of the inheritance rules governing registered Indian status, 'out-marriage
rates' among registered Indians will affect the growth of the registered Indian population in years to come. According to a recent study, the proportion of births eligible for registration for the on-reserve population could decrease from around 99% in 2000 to 87% by 2021. For the off reserve population, the proportion of births eligible for registration will be even lower, dropping from 79% in 2000 to 52% by 2021. - - - - - - -
Bill C-31 - A Matter of Rights
The Discrimination Continues 20 years later
Senator Sandra Lovelace, Human Rights and Bill C-31
June 28th, 2005
Twenty years ago, on this day legislation known as Bill C-31 received Royal Assent and became law. Since then, First Nations have been trying to get rid of its discrimination, something they say will eliminate all Indians in Canada.
In Ottawa, there was a gathering organized by First Nations women whose simple message was . . . Stop the Discrimination! - Aboriginal People Unite Against Bill C-31
Appropriately, the Bill C-31 demonstration was held at the Human Rights Monument.
Bill C-31 has not stopped the discrimination within the Indian Act.
In fact, the Native Women's Association of Canada explains that many First Nations children are losing Indian status, because one of their
parents is non-status.
"If something is not done, Bill C-31 will eliminate Indian status in the near future. This issue affects ALL First Nations peoples."
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"The federal government cannot and must not legislate the extinguishment of our citizens, whether based on gender, age or the 'wrong' lineage of First Nations ancestry." Skawahlook First Nation Chief Maureen Chapman, Chair of the AFN's Women's Council
"First Nations governments want to assume responsibility for their own citizens and can do a better job of it than Canada. The twentieth anniversary of Bill C-31 is an opportune time to begin this work." AFN National Chief Phil Fontaine
Bill C-31 twenty years later: AFN National Chief calls for First Nations control of First Nations citizenship
OTTAWA, June 28, 2005
Today, on the twentieth anniversary of
Royal Assent of the 1985 Act to Amend the Indian Act (commonly referred to as Bill C-31), AFN National Chief Phil Fontaine called on the government of Canada to address the systemic inequities it has created and to work with First Nations governments so that they can assume control of citizenship.
"After living with Bill C-31 for twenty years, we can clearly and
unequivocally say that it has failed Canada and it has failed First Nations,"
said National Chief Fontaine. "The Bill has not resolved any of the problems
it was intended to fix and has in fact created new problems. Significant
gender discrimination still remains, control over Indian status is still held
by the Crown, and the population of status Indians is declining as a direct
result of Bill C-31. This is a critical issue and the time to act is now."
The National Chief stated that control of citizenship and the Indian
Register must be transferred to the proper jurisdiction.
"It is morally, politically and legally wrong for one government to tell
another government who its citizens are, and we are calling for a process to move citizenship to the jurisdiction where it properly belongs, and that is
with First Nations governments," said the National Chief. "Bill C-31 was an
imposed government solution to problems created by the government's own imposed legislation. It is clear that First Nations governments are best
placed to identify and define their citizenship. In fact, Canada is in a clear
conflict of interest in trying to define our membership because the number of registered Indians creates financial implications for the government."
Bill C-31 was introduced with the expressed intention of eliminating
gender-based discrimination in the Indian Act. The stated purposes of the Bill were to remove overt discrimination from the Indian Act; restore status and membership rights to those who lost them because of inequalities in the Act; and to increase control of Indian bands over their own affairs.
Skawahlook First Nation Chief Maureen Chapman, Chair of the AFN's Women's Council, pointed out the fact that, even in the next five years, the number of children eligible for Indian status will begin to decline sharply.
"By 2010, nearly one in five First Nations children will no longer be
eligible for status under the terms of the Indian Act," stated Chief Chapman. "In other words, in the eyes of the government they are no longer 'Indians', even if they live a traditional life in their traditional community. The Department of Indian Affairs knows that this is an urgent issue, given that the statistic comes from work they commissioned. The federal government cannot and must not legislate the extinguishment of our citizens, whether based on gender, age or the 'wrong' lineage of First Nations ancestry."
National Chief Fontaine called for an immediate process between the AFN
and the federal government on how to transfer complete authority over
jurisdiction to First Nations.
"The only honourable way for Canada to proceed from this point forward is
to vacate the business of determining First Nations status and citizenship,"
said the National Chief. "Strategic discussions and good faith negotiations
between the AFN and the federal government must begin so we can decide how best to transfer complete authority to First Nations. First Nations
governments want to assume responsibility for their own citizens and can do a better job of it than Canada. The twentieth anniversary of Bill C-31 is an opportune time to begin this work." - - - - - - -
"The amendments Bill C-31 made to the Indian Act are without a doubt the most important that had ever been made to the Indian Act regime in its over 100 years of existence."
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Assembly of Manitoba Chiefs - Womens Issues
Annual Report August 2003
First Nations women and their children are still being subjected to discrimination when it comes to exercising their treaty and inherent rights particularly with relation to Bill C-31 as discrimination against the female gender lines is still contained within the legislation. As such, the number of First Nations children registered under section 6.2 continues to increase.
First Nations women are finding that 18 years after their rights were supposedly restored, most are still being denied the full benefits of their First Nations identity. Our children and grandchildren are still suffering the effects of having decades of our history and culture wiped out by the federal government who decides what level of 'status Indian' we are or aren't.
This has huge impacts particularly because the First Nations population is rapidly increasing and more and more of our women are unable to pass on their status to their children. It is feared that within generations to come there will be no 'Status Indians' in Canada.
The Bill C-31 Regional Strategy Planning Working Group (RSPWG) has been meeting this past year to formulate a strategy and gather statistics on the impact of Bill C-31 on our First Nation population. A letter was sent to all First Nation Membership Clerks asking for the total number of 6(1) and 6(2) First Nation citizens in their communities. Responses received to date have indicated that the number of 6(1) First Nations is decreasing and the number of 6(2) First Nation citizens is increasing.
n addition, the Regional Strategy Planning Working Group (RSPWG) has been examining the possibility of applying for intervener of observer status during the appeal stage of the Ontario based Perron Class Action Case. The Statement of Claim for this case states that section 6 of the Indian Act breaches the Canadian Constitution, the Charter of Rights and Freedoms and the Universal Declaration of Human Rights. In addition, it is a violation of the fiduciary duty owed to First Nations people by the Crown in right of Canada. Connie Perron and her son, Michael Perron, are challenging the amendment made to the Indian Act in 1985 that was supposed to eliminate discrimination.
The Perrons are representatives of three separate class action suits on behalf of (1) Women who regained their status as a result of marrying out, (2) their children, and (3) their grandchildren.
2002 Report Assembly of Manitoba Chiefs Womens Issues
Summary of Research
Bill C-31, an act to amend the Indian Act was passed in to law on June 12, 1985. There were three fundamental principles the Bill would address (1) the removal of gender-based discrimination, (2) restoration of status and membership rights to eligible individuals, (3) recognition of band control over membership.
Summary of Impacts
Although women can now marry without forfeiting their 'Indian' status, discrimination against the female gender lines is still contained within the legislation. Women reinstated under Bill-C31 (become a 6.1) do not have the same ability to pass on their treaty status to their children (who become a 6.2), whereas non-native women (6.1) who married a status man prior to 1985 are able to pass status on to their children (who are also 6.1). Both genders male and female can marry a non-First Nation and keep their status; the man can pass on his status to his children. Women in the same situation can not pass her status on to her children unless she has proof that the father also has status.
The number of First Nation Children registered under 6.2 continues to increase.
The reinstatement process is complicated, forcing many to 'give up'; some applications have taken over ten years to process.
The burden of proof falls on the mother and often the father is unwilling or unable to declare paternity.
The cost of the long form birth certificate ($50) required for registration stops many women from registering their children for status even if the father is status.
The third principle gave the 'bands' control over membership, which created a class of 'Indians' who have regained their status but have no band membership. The reinstatement without the ability to return to the First Nation is also discrimination.
Bill C-31 has been researched extensively since it's inception in 1983, the full impacts would not be felt until the second generation or the '6.2-s' started having children. First Nation children are being denied treaty status, not only those who were reinstated through the passage of Bill C-31, but every Treaty Status 'Indian' has been reclassified under Section 6.1 or Section 6.2. A major issue at this point is availability of statistical information of the numbers of children being denied treaty status.
January 2002, a letter was sent out to all First Nation communities requesting information as to the number of court challenges to section 6.2, including information on the number of children who have been denied treaty status since the enactment of Bill C-31. Response was minimal, follow-up contact is to be arranged.
December 9, 2002
Challenge to the Indian Act
" . . . a law that will eventually eliminate Indians"
There will be a Toronto court hearing this week in the Superior Court of Justice for a woman who is challenging Bill C-31. The Statement of Claim says the section 6 of the Indian Act breaches the Canadian Constitution, the Charter of Rights and Freedoms and the Universal Declaration of Human Rights. As well, lawyer Mary Ebert will argue it is a violation of the fiduciary duty owed to Aboriginal people by the Crown in right of Canada. Connie Perron and her son, Michael Perron, are challenging the amendment made to the Indian Act in 1985, that was supposed to eliminate discrimination. The Perrons are representatives of three separate classes - Women who regained their status as a result of marrying out - Their children and - their grandchildren. The hearing is scheduled for December 12 and 13, 2002, at the Court House Complex at Queen St. and University, Toronto. They are arguing that Bill C-31 is still discriminatory and perpetuates the future elimination of Indian status under the Indian Act. This means that at some point in the future -estimated at approximately two generations-, there will no longer be any status Indians. Members of the Aboriginal community plan to show up and support Connie Perron and her family.
C-31 Will Accelerate the Extermination Policies
Aboriginal Women's Action Network's
Bill C-31 Project
A 1970's perspective
"We are probably the only race of people who have had the definition of who we are changed without our consent."... Viola Thomas, former President United Native Nations
Aboriginal women are finding that 14 years after their rights were supposedly restored, most are still being denied the full benefits of their Aboriginal identity, a recent women's conference at the University of BC heard from a top Aboriginal leader. And their children and grandchildren are still suffering the effects of having decades of our history and culture wiped out by a white male bureaucrat in Ottawa who can decide which one of 27 categories of Indian we are or aren't, said Viola Thomas, president of the United Native Nations.
Subsequent to the 1999 conference referenced at UBC there were new court decisions
October 1999Federal Court judge ruled Saskatchewan Indian band broke the law
when it denied one of its members the right to vote in a band election
What theIndian Act says
DEFINITION AND REGISTRATION OF INDIANS
5. (1) There shall be maintained in the Department an Indian Register in which shall be recorded the name of every person who is entitled to be registered as an Indian under this Act.
Existing Indian Register
(2) The names in the Indian Register immediately prior to April 17, 1985 shall constitute the Indian Register on April 17, 1985.
Deletions and additions
(3) The Registrar may at any time add to or delete from the Indian Register the name of any person who, in accordance with this Act, is entitled or not entitled, as the case may be, to have his name included in the Indian Register.
Date of change
(4) The Indian Register shall indicate the date on which each name was added thereto or deleted therefrom.
Application for registration
(5) The name of a person who is entitled to be registered is not required to be recorded in the Indian Register unless an application for registration is made to the Registrar.
R.S., 1985, c. I-5, s. 5; R.S., 1985, c. 32 (1st Supp.), s. 4.
Persons entitled to be registered
6. (1) Subject to section 7, a person is entitled to be registered if
(a) that person was registered or entitled to be registered immediately prior to April 17, 1985;
(b) that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act;
(c) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;
(d) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;
(e) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951,
(i) under section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject-matter as that section, or
(ii) under section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject-matter as that section; or
(f) that person is a person both of whose parents are or, if no longer living, were at the time of death entitled to be registered under this section.
(2) Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1).
(3) For the purposes of paragraph (1)(f) and subsection (2),
(a) a person who was no longer living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)(a); and
(b) a person described in paragraph (1)(c), (d), (e) or (f) or subsection (2) and who was no longer living on April 17, 1985 shall be deemed to be entitled to be registered under that provision.
R.S., 1985, c. I-5, s. 6; R.S., 1985, c. 32 (1st Supp.), s. 4, c. 43 (4th Supp.), s. 1.
Persons not entitled to be registered
7. (1) The following persons are not entitled to be registered:
(a) a person who was registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and whose name was subsequently omitted or deleted from the Indian Register under this Act; or
(b) a person who is the child of a person who was registered or entitled to be registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and is also the child of a person who is not entitled to be registered.
(2) Paragraph (1)(a) does not apply in respect of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act.
(3) Paragraph (1)(b) does not apply in respect of the child of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act.
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Aboriginal men should be encouraged to support women's issues, particularly on C-31,
as the strength of all lies in the unity expressed to those outside the Aboriginal community.
"Equality for All in the 21st Century" ( a .pdf file )
Report on the 2nd National Conference on Bill C-31
"Although we applauded the elimination of discrimination based on gender to the first generation, we are still concerned about the ongoing discrimination, which is still prevalent in the revised Indian Act. The enactment of Section 6(2) now known as the 'second generation cut off clause', has left many aboriginal families and communities divided and at odds with each other. The membership codes were developed in a rush with no thought to impact on future generations. This has left an administrative and social disaster in many First Nations in Canada."Bill C-31: Unity for Our Grandchildren Conference Proceedings( a .pdf file )
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