By Isabelle Loranger
Written in 2021 for the University of Ottawa course HIS 4135 – The Indian Act, for Prof. Daniel Rück, edited by Daniel Rück and Sam Yee
Since its beginnings in 1867, the Indian Act has aimed to control, assimilate and ultimately eliminate Indigenous peoples. The Indian Act had many policies that severely restricted the independence and rights of individuals, as well as communities as a whole. One of the most notable inequalities that the Indian Act perpetrated was the discrimination against Indigenous women. In particular, Section 12 of the Act caused the loss of identity, legally and emotionally, for Indigenous women, as well as caused deterioration within communities and family structures. Gwen Brodsky’s article highlights some of the effects of the sexually discriminatory policies found in the Indian Act. Section 12 of the Indian Act revoked Indian Status from women who married non-status men. It also allowed non-status women to be awarded status when they married a man with status. The inequality of women is not traditional in many Indigenous communities, according to Douglas Sanders’ article “Indian women: A brief history of their roles and rights.” Angela Sterritt explores the lasting emotional and psychological impacts of enfranchisement on women in her book. Involuntary enfranchisement (caused by ‘marrying out’) meant a woman could no longer live on reserve land and her legal identity as an Indigenous woman was forcibly stripped away. Section 12’s continued damages are well described in Elizabeth Jordan’s work: A woman who lost status due to the ‘marrying out’ rule also lost her ability to pass on status to her children. Martin J. Cannon also describes the forced patrilineal structure as an act of colonialism. Section 12 introduced what is commonly referred to as the ‘double mother’ clause. The ‘double mother’ clause aimed to revoke status based on matrilineal lines, despite the status of the father. If a child’s mother and grandmother only obtained status through marriage, said child would not be eligible for status.
Because of the discriminatory policies of the Indian Act, several legal cases have ensued in an attempt to both rectify status and force change. One of the most notable cases is that of Jeannette Corbiere Lavell, as discussed in Peter Kirby’s article “Marrying out and Loss of Status: The Charter and New Indian Act Legislation.” Lavell married a non-status man in 1970, and lost her status as a result. In 1971, Lavell fought against Section 12 on the grounds that it directly went against the equality clause found in the 1960 Canadian Bill of Rights. Despite the clear inequalities, Lavell lost her case. She did, however, win after she appealed the case. In appeal, Lavell’s case was joined with another case that was filed on the same subject. Yvonne Bedard fought for her equality after she was forced off her reserve due to losing status after marrying out. These cases went as far as the Supreme Court of Canada in 1973. Bedard and Lavell ended up losing their cases; neither regained status, and Section 12 was not revised. Another influential person who sought to bring change to the discrimination was Sandra Lovelace. Lovelace first appealed her loss of status to the Supreme Court in 1974, and lost. She then took the case to the United Nations Human Rights committee to fight against the injustices caused by policies found within the Indian Act. In 1981, the UN agreed with Lovelace that Canada was breaching the International Covenant on Civil and Political Rights. The decision made by the UN, and Lovelace’s determination influenced some major changes. A year following the UN’s decision, the Canadian constitution was amended to include the Canadian Charter of Rights and Freedoms.
In 1985, an amendment to the Indian Act was passed. Bill C-31 aimed to remove gender discrimination within the Act, and correct the mistakes of the past. However, Bill C-31 further perpetuated discriminatory policies, as described in Shari Narine’s news article: “Canada continues to fail Indigenous women under the Indian Act.” The amendment abolished enfranchisement, ending the ‘double mother’ rule, the ‘marrying out rule’ of Section 12, as well as the ability to obtain status through marriage. Jo-Anne Fiske and Evelyn George describe how Bill C-31 also reinstated status to those who lost it. However, the efforts to reinstate status were poorly conducted and largely unsuccessful. The Federal Government required formal documentation to be presented to prove heritage, and this was very difficult to obtain due to poor record keeping. Additionally, misspelling of names and communities was very common due to language barriers. In order to have status restored, applications would need to be submitted by the woman who was personally enfranchised, and then those from the matrilineal line would also need to apply for status. The work to gather documentation from generations of people was an immense task, and many enfranchised women or their families were not able to do it successfully. Lynn Gehl documents her personal battle to have status restored to her and her family in her article.
Bill C-31 also introduced sectors of status. Two classes were developed, the categories labelled as 6(1) and 6(2). Those classified as 6(1) ‘Indians’ were considered to have full status, with the ability to pass their status down to their children. In comparison, 6(2) ‘Indians’ reaped the ‘benefits’ of being considered status, without being able to actually pass down their status to their children. Due to the inclusion of the 6(2) status, a ‘second generation cutoff’ was developed. Cheryl Simon and Judy Clark use a personal approach to explain the damage of the second generation to their family in their article. The cutoff affected the children of those who married out; they would be deemed 6(2), which meant despite their Indigenous heritage, should they also marry a non-status person, their children as a result would not be eligible for status. Shelagh Day discusses the effects of 6(1) and 6(2) status in further detail in her article. In short, the classification of 6(1) and 6(2) attempted to define indigeneity, determining whether an Indigenous person was Indigenous ‘enough’ to be recognized federally. Bill C-31 did however allow more freedom and independence for bands. The amendment allowed bands to control and manage memberships. This small piece of independence is meagre in comparison to the restrictions previously found, as highlighted by Wendy Cornet. While the amendments to the control on band memberships were a step in the right direction, overall, the Indian Act has remained discriminatory on the basis of sex. Equality under the Indian Act has not yet been reached despite the amendments made, as well efforts made to fight for justice through the court systems.
Day, Shelagh. “Equal Status for Indigenous Women–Sometime, Not Now: The Indian Act and Bill S-3.” Canadian Woman Studies 33, no. 1-2 (2018): 174-85.
In this peer-reviewed article, Shelagh Day explores the relationship between the sex discrimination found in the Indian Act and the continued violence against Indigenous women. The Indian Act has caused generations of women to be vulnerable, who are now, as a result, more subject to violence. Day uses numerous government reports, bills and committee notes to develop her research. These sources anchor the paper in historical fact. The Indian Act segregated Indigenous women into different levels of status, and for many women, removed status entirely. Bill S-3 is an example Day uses to reinforce her findings. It was passed in October 2016 and later corrected in May 2017. This bill was referred to as “6(1) all the way”; its goal was to reestablish full status to women who lost it prior to 1985. During the time Day’s paper was written this bill was not in effect. Day’s paper puts into perspective just how unhelpful amendments like Bill S-3 have been. This paper exposes the realities of the ‘attempts’ made to change sex discrimination that have not led to any progress. Equality, in regards to status and treatment of individuals, is still merely hoped for.
Sterritt, Angela. Racialization of Poverty Indigenous Women, the Indian Act and Systemic Oppression: Reasons for Resistance. Vancouver: Vancouver Status of Women, 2012.
Angela Sterritt is a Gitxsan reporter who aims to identify residual effects of the Indian Act’s treatment of women. This non-peer-reviewed article investigates the racialization of poverty. Sterritt reveals how the Indian Act pre- and post-Bill C-31 has caused cyclical poverty for Indigenous women. Enfranchisement, specifically because of the physical displacement that came with a loss of status, has negatively impacted the financial well-being of Indigenous women. Sterritt has recognized that through ‘marrying out,’ some Indigenous women have been forced into survival sex work, faced homelessness, loss of culture, poverty and more. Sterritt also highlights Bill C-31 in her paper. She uses this bill to prove that despite Lovelace’s resistance, the amendments still discriminate against Indigenous women. Bill C-31 also places value on families based on their ability to provide documents proving ancestry. Sterritt does not focus on using federal sources or archives. She relies instead on papers and books written by a variety of authors. These sources specifically focus on the impacts of Bill C-31, Indigenous feminism, and sovereignty. Sterritt uses these sources to share anecdotal stories that back up her central claims. In using previously acquired information, she is not directly conducting research on communities or people. However, the original sources would have conducted research around the experiences of people who are directly affected in order to acquire the information she shared. Sterritt is able to use multiple sources detailing the experiences and histories of community members and their communities. These sources add a lot of value to the paper because they all support the same conclusion despite different authorship. This paper focuses on the emotional impacts of Bill C-31. The direct quotes and descriptions used allow a greater understanding from the reader. The reader, as a result, is able to recognize the affected women and communities as people, rather than statistics.
Gehl, Lynn. “‘The Queen and I’: Discrimination Against Women in the ‘Indian Act’ Continues.” Canadian Woman Studies 20, no. 2 (2000).
Lynn Gehl explores her experience of Indigenous identity in this peer-reviewed article. Gehl speaks about her own experiences with the discrimination that the Indian Act has caused, not only federally but also within her own family. The Indian Act created a definition for what was or was not considered an Indigenous person, using a patriarchal framework. Being status or not is an important and relevant part of many Indigenous people’s identity, including Gehl, who struggled with her own indigeneity without status. Gehl specifically connects the feelings of loss of identity to the previous Section 12 of the Indian Act that forced enfranchisement, as well as the discrimination that Indigenous people are faced with when applying for the status their family lost. Essentially, the system to regain status was set up for failure. Gehl found there to be a lack of the required archival material (birth and marriage certificates), and many documents were not eligible because of misspelled names due to language barriers. Despite all the difficulties that Gehl had in locating documents, the government was unsympathetic and denied her status. She uses additional sources to support her research including archival records, books, scholarly journals, as well as her personal experiences.
Cornet, Wendy. “First Nations Governance, the Indian Act and Women’s Equality Rights.” First Nations Women, Governance and the Indian Act: A Collection of Policy Research Reports 117 (2001).
Wendy Cornet’s peer-reviewed research report funded by Status of Women Canada’s Policy Research Fund, focuses on the effects of Section 67 of the Canadian Human Rights Act. She also discusses how Section 67 caused further inequality within the Indian Act. Section 67 allowed complaints with the Indian Act to be disregarded. Later, it was proposed to remove Section 67 in hopes of this fixing the discriminatory portions of the Indian Act, but ultimately this exemption was not removed. During the time that Cornet wrote her report, Section 67 was still in place, but it was repealed in 2008. Cornet has a valid and logical argument: that in order for the government to expect Indigenous peoples to abide by and practice their laws, the federal government in turn needs to support Indigenous peoples and their rights. Cornet also brings into consideration the lack of ability to truly self-govern Indigenous communities because of the restrictions and control placed on self-governance. Cornet uses very technical sources, particularly law journals. This allows Cornet to write and interpret the ongoing sources of discrimination without influence of opinions or feelings that can come along with anecdotal evidence. With this clear source of information, Cornet is able to construct a very technical piece that states facts and their impacts. She is also able to avoid trauma-based research by utilizing sources that are not personally connected to trauma. This is a very relevant report as it establishes how complex and deeply rooted sex discrimination is, and not solely within the Indian Act itself.
Simon, Cheryl, and Judy Clark. “Exploring inequities under the Indian Act.” UNBLJ 64 (2013): 103.
Simon and Clark’s peer reviewed article uses a unique approach to demonstrate the discrimination caused by the Indian Act: the personal history of four generations of their family. The authors use experiences to prove the degradation of Mi’kmaq culture and values that was caused by the discrimination of women through the Indian Act. The governance structure of the community became more male-dominated, and loss of band membership occurred with the implementation of 6(2) status, which also negatively affected Simon’s perception of her own identity. Simon’s own son did not receive status because she ‘married out.’ Simon and Clark use records of court cases and bills as the majority of their sources.
Brodsky, Gwen. “Indian act sex discrimination: enough inquiry already, just fix it.” Canadian Journal of Women and the Law 28, no. 2 (2016): 314-320.
Gwen Brodsky researches the link between sex discrimination and the Indian Act. She explores how the Indian Act has caused increased vulnerability for Indigenous women, thus increasing their likelihood to experience violence. In her peer-reviewed paper, Brodsky argues that unless the discriminatory terms in the Indian Act are addressed and corrected, the ongoing issue of violence against Indigenous women will not be end. While the Federal Government has been aware of the issues of discrimination, it has not been successful in ending it. In passing Bill C-31, some sex discriminatory policies were removed, but most continued. Brodsky argues that abolishing all sex discrimination in the Indian Act would not actually be difficult. She believes it would be fixed quite simply by creating equality between status men and women. Brodsky argues that the reason equality had not been achieved was due to the Federal Government’s incompetency. Brodsky is able to speak clearly and effectively on this topic due to her experience with discriminatory policies. She uses plain language which makes her paper more accessible to a larger audience; this is important to help generate more common knowledge on the topic.
Cannon, Martin J. Men, Masculinity, and the Indian Act. UBC Press, 2019.
Martin J. Cannon’s peer-reviewed book Men, Masculinity, and the Indian Act is not only about men, but it also discusses women’s roles and rights in the Indian Act. Cannon argues that the structure of colonialism is built upon racism against Indigenous peoples and sexism, and that the intention was to enforce paternalism. Policies regarding reserve land were also built on a sexist foundation: Cannon connects Section 12 of the Indian Act, the ‘marrying out’ rule, to reserve land, showing that the loss of status of a woman who has married a non-status man, also means the loss of her home on her community’s reserve. This would cause a loss of familial ties as well as significant financial distress. Indigenous women were also forcibly excluded from running in band council elections and voting, despite many communities being traditionally matriarchal and having had Indigenous women in positions of leadership. Cannon’s sources include books and scholarly articles about Indigenous women and their roles, colonialism, and reserved lands. This broad spectrum of sources allows for Cannon to have a well-informed view of his topic that covers the perspectives of multiple authors.
Sanders, Douglas. “Indian women: A brief history of their roles and rights.” McGill LJ 21 (1975): 656-672.
Douglas Sanders begins his peer reviewed article with a story of a surprised colonizer meeting an Indigenous woman in a leadership role, and succeeding in this role. He argues that in many Indigenous communities women were eligible for leadership roles, and in some cases membership and leadership was determined by female ancestry. This would mean that the forced patriarchy implemented by colonialism, and furthered by the Indian Act, goes against the social and political structures of many Indigenous communities, and that the Indian Act disregards Indigenous kinship systems. Sanders recognizes how first contact with Indigenous peoples led to conflict in relationships between settlers and the Indigenous population, particularly during marriages between fur traders and Indigenous women. He explores further acts of discrimination, recognizing the ‘marrying out’ policy in the Indian Act as being both an act of forced paternalism and sex discrimination. Despite multiple court cases fighting for gender equality under the Indian Act, an several amendments to the act, the Federal Government continues to enforce discriminatory policies. Sanders mainly uses documents from court cases, including the Lavell, Drybones and Canard cases, and is thus is able to create connections from the history of relationships between settlers and Indigenous people and the ongoing effects of those interactions.
Kirby, Peter. “Marrying out and Loss of Status: The Charter and New Indian Act Legislation.” Journal of Law & Social Policy 1 (1985): 77-95.
Peter Kirby’s peer-reviewed article opens with the Jeanette Lavell case, which is used to describe the loss of status experienced by an Indigenous woman. Kirby shows how Lavell and Bliss experienced the ‘equality’ that was meant to be brought with the amendments made to the Indian Act, and he argues that these changes did not truly change the foundation of sexual discrimination that the Indian Act is built upon. Kirby discusses a test of equality, made by Justice Ritchie during the Lavell trial. The test was used to determine the equality of policies, amendments and largely, the Indian Act. Section 12 of the Indian Act, which deals with the loss of status among status women who married non-status men, did not pass the equality test. Since the Supreme Court focused on the loss of land experienced while disregarding the effects of lost status, Kirby uses the Lavell case as an example of control over resources. Prior to Bill C-3,1 bands did not have general control over membership criteria. After the establishment of Bill C-31, bands were able to have some control over membership. Sanders consults court records of the Lavell and Drybones cases as well as scholarly papers on the traditional role of women within Indigenous communities.
Jordan, Elizabeth. “Residual Sex Discrimination in the Indian Act: Constitutional Remedies.” Journal of Law & Social Policy 11 (1995): 213-240.
Elizabeth Jordan’s peer-reviewed paper argues that the Indian Act continues to discriminate on the basis of sex, despite amendments. Jordan uses Section 12 of the Indian Act, the removal of an Indigenous woman’s status based on who she marries, as an example of a discriminatory policy on the basis of sex. This policy is an example of a patriarchal system that was imposed by European standards caused by colonialism. The patriarchal structure went directly against the social structure of Iroquoian and Algonquian cultures, who were the original communities on whom the Indian Act was imposed. During the Lavell court case, Jordan explains that the Crown believed they were protecting the land rights of Indigenous people by eliminating the risk of non-Indigenous men marrying into Indigenous families and taking control of their land. However, the policy also promoted coercive assimilation. Even after Bill C-31, there was continued sex discrimination, and many Indigenous women who lost status due to discriminatory policies, never regained it, and suffered as a result. Jordan uses court records of Jeannette Lavell’s experiences to support her argument, as well as a variety of academic studies. The sources allow Jordan to discuss the experiences of those who experienced degradation of their mental health as a result of Bill C-31 and Section 12 of the Indian Act.
Narine, Shari. “Canada continues to fail Indigenous women under the Indian Act.” Windspeaker. Vol. 34. Aboriginal Multi-Media Society of Alberta (AMMSA), 2016.
In this news article, Shari Narine argues that the discrimination against women in the Indian Act continues to worsen, despite efforts to correct the inequalities. Bill C-31 discriminates against children of Indigenous people who have lost status, in particular children whose Indigenous lineage follows their matriarchal line. Another attempt was made with Bill S-3, which aimed to fix the discrimination against cousins, siblings, and most minors. Narine uses the work of the United Nation’s Committee for the Elimination of Discrimination against Women to support her argument that the problems of discrimination can easily be corrected. The UN agreed that it should simply be a case of Indigenous women and men and their descendants being considered for Status. Passing Bill S-3 would prevent those who were victims of discrimination from receiving justice. Additionally, children born of sexual assault, prostitution, or simply a father unwilling to sign a birth certificate would still face discrimination. Narine’s sources include the Descheneaux and McIvor cases. Narine also uses information from The Native Women’s Association of Canada to support her arguments. Narine’s article may be short, but it uses accessible language that is comprehensible by a broad audience.
Fiske, Jo-Anne, and Evelyn. George. Seeking Alternatives to Bill C-31 from Cultural Trauma to Cultural Revitalization through Customary Law. Ottawa: Status of Women Canada, 2006.
Jo-Anne Fiske and Evelyn George’s research paper, funded by Status of Women Canada’s Policy Research Fund, argues that the Federal Government was not successful in improving the gender discrimination of the Indian Act. Particularly, in 1951, many changes were made to the Indian Act, and Fiske and George use Jeannette Lavell’s experiences in their paper to demonstrated the continuing sex discrimination of the Indian Act. After Lavell lost her status in 1969 after marrying a non-status man, she argued that by revoking her status based on who she married, the Indian Act violated the Canadian Bill of Rights. In 1985, amendments were made to the Indian Act which was required due in part to Lovelace v. Canada, a case which determined that the Indian Act violated the rights of Indigenous women. But Bill C-31 continued to discriminate against Indigenous women, and Fiske and George found that Bill C-31, and the Indian Act in general, caused particular distress to matrilineal Indigenous communities.