Indian Status

What is Indian Status?

Section 35(2) of the Constitution Act, 1982 defines three groups of Aboriginal peoples — Indians, Inuit and Métis. Indians, in this case, refers to First Nations people. Legally speaking however, not all First Nations peoples are Indians — that is, not all have Indian Status. Indian is a legal identity that has been defined since 1876 by criteria set out in the Indian Act. The people who fit these criteria are known as Status Indians. Outside legal contexts, Indian is a term that is now considered outdated and offensive.

Status Indians (sometimes also referred to as Registered Indians) appear on the Indian Register — the official record of Registered Indians in Canada, maintained by the federal government. The register contains the names, birth dates, death dates, and marriage and  divorce details, as well as records of persons transferring from one band to another, for all Registered Indians. People with status are issued identification cards (known as status cards) that contain information about their identity, band and registration number.

According to the federal government, “under the Indian Act, Status Indians may be eligible for a range of benefits, rights, programs and services offered by the federal and provincial or territorial governments.” For example, all Status Indians are exempt from paying income tax on any income they earn on a reserve, and the personal property of a Status Indian cannot be seized if it is situated on a reserve. However, the provisions governing these exemptions are complex and do not apply uniformly in every scenario. Additionally, having status does not necessarily guarantee certain rights, such as the ability to live on reserve. Non-Status people can also live on reserve in some cases, depending on community bylaws.

Indian Status and Band Membership

Indian Status does not necessarily guarantee membership in a band. After amendments to the Indian Act in 1985, bands gained the ability to create their own membership rules. (However, if they do not wish to do so, the federal government will continue to manage membership lists.) Bands now determined who could participate in band politics, and who could access band resources and property.

However, bands did not control who gained or lost status; the federal government retained this power. Therefore, while most members of bands are also Status Indians, it is possible to have status without belonging to a band, or vice versa.

Treaty Indians

Treaty Indians are Status Indians who belong to a First Nation or band that signed any treaty with the Crown since 1701, thereby surrendering land for specified benefits. Some Treaty Indians live on a reserve not covered by a treaty, meaning that their community never signed a treaty with the government to surrender their lands. These individuals live on what is typically known as unceded territories.

The term also applies to First Nations who have self-government agreements. Treaties may provide the descendants of signatories with annuities (annual payments) and rights (such as the right to hunt and fish) in addition to those given to all Status Indians.

Non-Status Indians

Non-Status Indians are First Nations peoples who are not registered with the federal government. In some cases, they do not qualify for status based on the requirements set out by the federal government in the Indian Act. In other cases, Non-Status Indians have lost their status as a result of marriage to a Non-Status person, enfranchisement or other legal restrictions. (See also Indigenous Suffrage in Canada and  Indigenous Women and the Franchise.)

Not legally recognized under the Indian Act, Non-Status Indians do not enjoy the same rights and privileges as Status Indians; some even face criticism from Indigenous groups who consider them “inauthentic” Indians. Being legally defined as Indian does not wholly define one’s ancestral or cultural identity. Non-Status Indians still retain Indigenous identity. They also often share many of the same  socio-economic issues as Status Indians, including lack of access to health care and  education, poverty, displacement from ancestral homelands, and the loss of Indigenous culture and language. Ineligible for status, Non-Status Indians have had difficulties finding avenues of support for these issues. Organizations such as the Congress of Aboriginal Peoples have sought to represent the concerns of Non-Status Indians (and other Indigenous peoples) in Canada.

In April 2016, the Supreme Court of Canada ruled that “Indian,” as defined by section 91 (24) of the Constitution, includes Non-Status Indians, as well as the Métis. However, this does not mean that Non-Status people are now Status Indians. The Indian Act, which continues to define Indian Status, was not changed by this ruling. This 2016 judgement means that Non-Status people fall under the legislative jurisdiction of the federal government.

Métis and Inuit Peoples

Indian Status is held only by Indigenous peoples who are defined as such under the Indian Act. Inuit and  Métis do not have status, just like Non-Status Indians. However, in separate judgments, the Supreme Court ruled that Métis and Inuit are the responsibility of the federal government (as opposed to provincial or  territorial governments). In a 1939 ruling, the Court gave responsibility for Inuit affairs to Ottawa, and in 2016, it did the same for the Métis and Non-Status Indians. In doing so, the court has ruled that these peoples are included in the definition of Indian in section 91 (24) of the Constitution, which covers the federal government’s power over matters relating to “Indians, and Lands reserved for the Indians.”

Demography

As of the 2016 Statistics Canada census, 1.7 million people identified themselves as Aboriginal, representing 4.8 per cent of the Canadian population. Of those people, 58.4 per cent (977,235) were First Nations, 35.1 per cent (587,545) were Métis and 3.9 per cent (65,025) were Inuit.

Within the First Nations population, 83.9 percent (820,120) were Registered (Status) or Treaty Indians, and 2.83 per cent (232,380) identified as Non-Status. Among the Status and Treaty Indian population (744,855), 44.2 per cent lived on reserve, while the rest lived off reserve. From 2006 to 2016, there was population growth both on reserve (with an increase of 12.8 per cent) and off reserve (49.1 per cent).

Indian Act Amendments Affecting Status

Since 1876, many Status Indians have lost their status because of discriminatory terms in the Indian Act. Until 1951, the Indian Act forced many Status Indian men and women to “enfranchise” — give up status rights for citizenship rights. Gaining the franchise, joining the military, obtaining a college degree or becoming a professional automatically resulted in the loss of Indian status. In addition, any Status Indian who resided outside of Canada for five years or longer resigned his or her status. (See also Indigenous Suffrage.)

Amendments to the Act in 1951 replaced the concept of “Indian blood” with one of status through registration. In other words, simply having First Nations heritage was not enough to qualify for status. However, the Act still privileged male lines of descent. Before 1985, a Status Indian woman lost her status if she married a man who did not have status; children from these marriages lost their status as well. At times, the loss of status severed peoples’ ties to their ancestry and community.

Throughout the 1970s and 1980s, the issue of gender discrimination in the Indian Act grabbed national and international attention, prompting the federal government to make changes. In 1985, Bill C-31 allowed women who "married out" — and those who lost their Indian Status by other means — to apply for the restoration of their status and rights. More than 117,000 people gained or regained Indian status as a result of Bill C-31.

Among other provisions, Bill C-31 also created two categories of Indian registration that have had consequences on the number of people entitled to Status Rights. The first, known as section 6(1), applies when both parents are or were entitled to registration. (This section is further broken down into sub-sections that differ based on how status is passed down.) The second, known as section 6(2), applies when one parent is entitled to registration under 6(1). Status cannot be transferred if that one parent is registered under section 6(2). In short, after two generations of intermarriage with non-status partners, children would no longer be eligible for status. This is known as the “Second-Generation Cut-Off” rule.

While Bill C-31 provided many women with the opportunity to have status re-instated, it did not rid the Indian Act of gender discrimination. Cases brought to court by Indigenous peoples influenced further amendments to the Act. For example, in response to the McIvor case, the federal government passed Bill C-3 in 2011. The amendment grants 6(2) status to grandchildren of women who regained status in 1985. However, it too did not completely rid the Act of discrimination.

Bill S-3, part of which came into effect on 22 December 2017, was brought about as the result of the Descheneaux case in 2015. Bill S-3 enables more people to pass down their status to their descendants and reinstate status to those who lost it before 1985. The other part of the bill — related to restoring status to women and their offspring who lost status before 1951 (known as “1951 Cut-off”) — was brought into force on 15 August 2019. According to the government, “All known sex-based inequities in the Indian Act have now been addressed.”

Debate: Keep or Eradicate Status?

Some Indigenous peoples believe that Indian Status and the Indian Act have a legitimate place in federal law and Indigenous communities. The 1969 White Paper— a federal proposal to do away with reserves and Indian status — was met with heavy resistance by many First Nations. They claimed that Indian status not only acknowledged the history and relationship between the Crown and Indigenous peoples in Canada, but also obligated the government to acknowledge that relationship and its commitments to them. In addition, some Status Indians feared eventual assimilation without the protection of status. As David Newhouse, the director of the Chanie Wenjack School for Indigenous Studies at Trent University, explains, “[The Indian Act] provides the structure for local community governance and community life. Reforming the Act in one fell swoop, or repealing it, would be enormously disruptive to First Nations.”

Other Indigenous peoples argue that, since Indian is a legal identity defined by the federal government rather than by Indigenous nations themselves, Indian Status and the Indian Act should be abolished. As Assembly of First Nations chief Perry Bellegarde stated in 2018, “We all want to move beyond the Indian Act’s control and reconstitute ourselves as Indigenous peoples and Nations with fundamental inherent rights.” Critics also point to the fact that the Act has been used to disadvantage many people, particularly women and their children. They argue that it upholds a paternalistic relationship between Indigenous peoples and the Canadian government, one in which Indians are “wards” of the state who require control and direction.

Furthermore, critics contend that the government has used the Indian Act (as well as other legislation) to assimilate Indigenous peoples to White, colonial Canadian culture. These Indigenous peoples hope that ward status will change with the increasing move towards self-government and reconciliation, contributing to a change in government-Indigenous relations. Critics generally argue that cultural authenticity and status are not connected, and that legal definitions of Indian are nothing more than government impositions.