Status: In committee (House), as of June 13, 2017
Summary: On August 3, 2015, the Supreme Court of Quebec issued is ruling in Descheneaux c. Canada (procureur général), which ruled that the Indian Act violated the Canadian Charter of Rights and Freedoms based on sex. The fundamental issue is of passing down status. Stéphanie Descheneaux, along with Susan Yantha and Tammy Yantha of Abénakis of Odanak First Nation in Quebec, challenged the registration provisions in section 6 of the Indian Act. They argued that as women section 6 of the Indian Act discriminated against them because of the rules on passing down status.
Gendered Discrimination in the Indian Act
Two fundamental problems were demonstrated in the Descheneaux case, both of which meant that women could not pass down their status in the same way that men can. Bill C-31 (1985) had already addressed gender discrimination in the Indian Act when it 1) restored status to women who lost their status through marriage, 2) removed a rule where a person lost status at age 21 if their mother and paternal grandmother both received status through marriage, 3) maintained status for those who gained status through marriage, and 4) entitled individuals with one parent with section 6(1) status to register under section 6(2). What this amendment did not achieve, though, was that it did not retroactively address problems for women who either married non-Status men or had children with non-Status men out of wedlock. This created inequality based on gender, which has been since called the “cousins issue” and “siblings issue.”
For Stéphanie Descheneaux, the problem has been called the “cousins issue.” If a Status Indian Grandfather married a non-Indian before 1985, the woman would receive status. His son would then also marry a non-Indian woman, and she too would receive status. Their children (the original person’s grandchild) would then also have section 6(1) status, and their children would then also receive status either under 6(1) or 6(2).
Conversely, in the same situation but under the maternal line (beginning with a status Indian grandmother), the woman’s great grandchild would not receive status. The woman would not pass her status to her husband, and therefore the grandchild of the original woman would have status under section 6(2) and could not pass down her status. If a Status Indian brother and sister both had children, as outlined by the chart below, hypothetically there could be a pair of first cousins where one holds status and the other does not, even though their lineage is identical aside from the gender of their grandparents. The chart below illustrates the differential treatment these two ancestral lines create.
The situation for Susan and Tammy Yantha also is illustrates the differential treatment under the Indian Act, in this case concerning children born to parents out of wedlock. After 1985, a Status Indian man could pass down section 6(1)(a) to a child born out of wedlock, where a woman could only pass down section 6(2) status, meaning that the woman’s grandchild would not have status. Within two generations, within a family it could occur that a brother and sister with the same parents, the son could have Indian Status under section 6(1)(a) while the daughter had none. Again, the chart below explains this.
Amendments to the Indian Act under Bill S-3 and Impact on First Nation communities
The bill includes nine clauses which clarifies who can register under the Indian Act. Specifically, the following individuals are eligible as of Bill S-3 coming into force:
- Individuals whose parent as a minor child lost status as a result of his or her mothers subsequent marriage to a non-Indian
- The cousins issue was addressed by making individuals whose parents became eligible to be registered under section 6(1) in 2010 amendments (new section 6(1)(c.2)
- The siblings issue was addressed by allowing individuals born female between September 4, 1951 and April 16, 1985 out of wedlock (fix siblings issue)
- Finally, the children of parents newly entitled under these new sections are now eligible.
Bill S-3 had an immediate impact on First Nation communities because the new provisions it contained made between 28,000 and 35,000 individuals eligible for status. This would then have impact on funding, because funds for federal programs are allocated by on-reserve residency and band membership lists. It follows that a larger membership list equals increased funding. The problem, though, is that S-3 is not attached to more funds. While remedying the gender discrimination that existed in the Indian Act is a good thing, it needs to be tied to increased funding to maintain the same level of services for First Nations who rely on federal programs.
Since 1985, Band Membership and Indian Status have been severed, meaning that while First Nations individuals are now eligible to regain their status, this does not necessarily mean they qualify for Band Membership. Under section 10 of the Indian Act, First Nations can create their own membership codes, with full or conditional membership. Since a person can have Indian Status but not be included on a Band Membership list, it is possible for First Nations who control their membership to create restrictive membership codes for a number of reasons, including access to land, housing, or funding.
Full text of the bill can be found here
Full text of the Indian Act (R.S.C., 1982, c. I-5) can be found here