The Indian Act, passed in 1876, is currently used by the federal government to control who can have Indian status, determine eligibility for federal programs and rights, manage reserve lands and regulate First Nations governments even though there have been several attempts to reform or repeal this outdated, racist and oppressive law.  

The Indian Act utilized patriarchal and misogynistic definitions of who is entitled to Indian status and who can transmit status. The Act also suppressed Indigenous self-governance and undermined matriarchal societies through gender-based discrimination. For example, women and their children lost their Indian status if they married a “non-Indian”. Male children of status men born out of wedlock could register for status but their female children were not entitled to status. Women were also banned from participating in the band system — a governance structure implemented by the Indian Act.  

Gender-discrimination in the Indian Act was used as a tool in the race-based genocide of Indigenous Peoples to target women, girls and 2SLGBTQQIA people. Shelagh Day from the Canadian Feminist Alliance for International Action explains, “The fact that First Nations women have been treated overtly, in law, as though they are the property of men, second class, and not equal, has had the effect of marginalizing First Nations women in their own communities and in the broader society. It is not surprising that in their reports on the crisis of murders and disappearances of Indigenous women and girls, both the UN Committee on the Elimination of Discrimination against Women (CEDAW) and the Inter-American Commission on Human Rights (IACHR) found that historical Indian Act sex discrimination is a root cause of the shocking levels of violence against Indigenous women.”   

Countless Indigenous women and their children have lost their legal status and been deprived of their rights and privileges under the Indian Act. The systemic discrimination perpetuated by this law has had historic and ongoing impacts on First Nations — forced displacement, a loss of cultural identity and connection to ancestral lands, broken families, social exclusion, and the disparity in rights and benefits between Indigenous women and men.  

Unwavering advocacy by Indigenous communities and court challenges by Indigenous women and their descendants who fought for decades to regain their status rights have been the driving force for the most recent legislative changes passed in 1985, 2011 and 2017 to address the gender-based inequities in the Indian Act. 

Unfortunately, these narrow, technical changes have not fully addressed the racist, sexist, patriarchal, and colonialist root causes of discrimination in the Act.  

For example, the 1985 Indian Act amendment prevents people born after April 17, 1985, who have only one status parent from passing their status to their children – this is known as the “second-generation cut-off rule”. This rule disproportionately impacts Indigenous women who may not know, be willing to or unable to identify their child’s biological father. For example, the father may deny paternity or the pregnancy may have been a result of sexual assault or incest. The Act’s requirement to provide evidence to prove a person’s or their child’s ancestry can result in the unfair denial of a child’s access to status benefits. 

Compliance with the Canadian Charter of Rights and Freedoms 

This past August, the BC Supreme Court ruled that the registration provisions of the Indian Act that deny status to the descendants of enfranchised families is in violation of the Charter of Rights and Freedoms by perpetuating “disadvantage, stereotyping, prejudice and discrimination” tied to enfranchisement. The Canadian government has until April 2026 to change the Indian Act to bring it into compliance with the Charter. 

Enfranchisement was a process the Canadian government used to assimilate Indigenous people and minimize the number of individuals with rights and entitlements guaranteed to Indigenous Peoples. Under the Indian Act, an Indigenous person would gain Canadian citizenship by renouncing their status and treaty rights. Enfranchised people obtained the right to vote and own property. Enfranchisement could be voluntary or involuntary i.e., status Indians were automatically enfranchised if they earned a university degree or became a doctor or lawyer.   

Status loss through enfranchisement disproportionately affected direct descendants of Indigenous women married to non-status men. When a man enfranchised, his wife and children automatically lost their status. In contrast, a status Indian man would retain his status if he married a non-status woman and his wife and children would gain status rights. Descendants of people who voluntarily enfranchised have argued that their parents, grandparents or other ancestors were forced or coerced to enfranchise because changes made to the Act between 1876 and 1951 strengthened gender discrimination provisions and further suppressed the rights of Indigenous Peoples. For example, a 1920 amendment to the Indian Act gave the Superintendent General the power to enforce mandatory Indigenous child attendance in residential, industrial, or day schools which created a very strong motivation for many people to enfranchise.   

The way forward 

The United Nations Declaration on the Rights of Indigenous Peoples Act, (UNDRIP), passed in 2021, provides a framework for reconciliation and recognizes that Indigenous Peoples’ inherent rights are grounded in their own customs, laws and traditions. The Declaration establishes the minimum standards required to protect Indigenous Peoples and contribute to their survival, dignity and well-being.   

Under this Act, the Government of Canada must work in consultation and cooperation with Indigenous peoples, to ensure all Canadian laws are consistent with UNDRIP. It also requires measures to address injustices, combat prejudice and eliminate all forms of violence, racism and discrimination against Indigenous peoples. 

Implementing UNDRIP is a significant step towards a comprehensive approach to address all inequities and end gender discrimination in the Indian Act. The United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan (UNDRIP Action Plan), states that “the Indian Act is a colonial-era law designed to exert control over the affairs of First Nations,” and “the Indian Act must be repealed.”  The UNDRIP Action Plan includes the following steps towards a First Nations-led transition away from the Indian Act: 

• Support the adoption of Bill C-38 — now Bill S-2. In May, Bill S-2 was introduced to the Senate with the aim to correct the inequities in how Indian status, federal registry and natal band membership are handled and update outdated and offensive language related to dependent persons.

On November 18, the Senate Standing Committee on Indigenous Peoples passed historic sweeping amendments to Bill S-2 that will remove the second-generation cut-off rule and implement a one-parent rule that allows anyone with status to pass their legal identity and rights to their children. Senator Paul Prosper shares: “I chose to champion this amendment because I believe there is nothing more vital to the survival of First Nations than this change. The fact is that we cannot govern who First Nations fall in love with. This change says, love who you love and do not worry because your children will not fall by the wayside.”

• Co-develop a collaborative consultative process to address the long-standing inequities in registration and membership. 
• Co-create opt-in alternatives to Indian Act registration and membership for Indigenous groups including women, girls and 2SLGBTQQIA+ people. 

For more details, please see the Fourth annual progress report on implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act.  

For more information about the work that Indigenous Services Canada is leading to develop new legislation to replace the Indian Act, read the Tenth Annual Statutory Report to Parliament and visit the Indian Act reform website.