Indian Act

Bill C-31, otherwise known as An Act to Amend the Indian Act, resulted because of persistent activism on the part of Indigenous women who recognized and opposed the inherent gender bias within the Indian Act. This amendment reinstated status to Indigenous women, and their children, who had previously had their status revoked by the pre-1985 Indian Act due to marriage to a non-Indian. Losing status meant much more than no longer being viewed as an ‘Indian’, it resulted in a loss of access to rights, programs, and on reserve housing, ultimately isolating Indigenous women from their friends and family. This bill also shifted more responsibility on to band councils and away from the federal government in regards to band membership by allowing bands to create their own membership codes and make decisions on whether or not to allow reinstated women and their children into their bands. Bill C-31 created a more complicated formula when determining Indian status by creating what is known as the ‘second generation cut-off rule’. This rule states that status is revoked from individuals who have fewer than two grandparents with Indian status. This rule applies only to Indigenous women who married non-Indians prior to April 17, 1985 and their subsequent children. The new formula for status was also discriminatory towards the children of Indigenous women who had married non-Indians because they were placed in a category that essentially labelled them as ‘less Indian’. This lesser level of status is gender discriminatory because it applies only to the grandchildren of Indigenous women who married non-Indians, and not to Indigenous men who married non-Indians. Although Bill C-31 was created as a means to eliminate gender discrimination within the Indian Act, it resulted in the creation of residual gender bias towards Indigenous women and their children.

Other Note

The pre-1985 Indian Act was blatantly discriminatory towards Indigenous women. Status was derived patrilineally, a decision made by the federal government that was not consistent with Indigenous society in which many cultural groups were matrilineal. Western images of women were imposed on Indigenous societies, and Indigenous women were labelled as immoral, untrustworthy and less beautiful than their European counterparts. The new ascribed societal image of Indigenous women was used as a justification for imposing colonial policies that would drastically alter the lives of Indigenous peoples.

Bill C-31 was aimed at correcting the gender bias from the Indian Act in which women were stripped of their status if they married a non-Indian man. However, the amendment resulted in residual gender bias that still affects Indigenous women today. Women and their children did not automatically have their status reinstated, in fact, they had to apply for it. The federal government shifted responsibility for membership to band councils within this amendment which has left many Indigenous women marginalized. This left bands in a conflicting position because if they accepted these women it would result in further taxation of their already limited resources, which are often already inadequate when providing for their members. The amendment created further tensions within the Indigenous community because many bands vehemently opposed the amendments, some even taking their concerns to court claiming that the amendments were unconstitutional and violated their Section 35 rights. The ‘second generation cut-off rule’ has also had lasting implications for Indigenous women. Because this rule only applies to women who married non-Indians prior to the 1985 amendment, it further discriminates against Indigenous women and their children. The residual gender bias that still exists today as a result of Bill C-31 has contributed to the marginalization of Indigenous women within Canadian society. Indigenous women are overrepresented in the justice system, the sex trade, and also in situations of domestic violence as a result of colonial policies such as the Indian Act.
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Bill C-31: An Act to Amend the Indian Act