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In 1985, Parliament responded to the appeals of Indigenous peoples by changing discriminatory sections of the Indian Act. Known as Bill C-31, this amendment reinstated Indian Status to women who had lost it through marriage to men without status. Among other changes, the bill also enabled all first-generation children of these marriages and individuals who had been enfranchised to regain their legal status. More than 114,000 people gained or regained their Indian status as a result of Bill C-31. (See also Women and the Indian Act.)
In 1985, Bill C-31 made changes to the Indian Act. One of the most important changes was the re-instatement of Indian Status to women who had lost it through marriage to a man without status.
What Is Bill C-31?
In 1985, Bill C-31 made changes to the Indian Act — a piece of federal legislation that has affected Indigenous cultures, systems of governance, societies and ways of life since its enactment in 1876. Gender discrimination in the Act further disadvantaged First Nations women, in particular. Until 1985, women with Indian status who married someone without status lost their status rights. Men, on the other hand, did not lose Indian status in the same way.
Through the 1970s and 1980s, the issue of discrimination in the Indian Act grabbed national and international attention. The work of female activists such as Mary Two-Axe Earley, Yvonne Bédard, Jeannette Corbiere Lavell and Sandra Lovelace Nicholas helped make changes to the law. (See also Women and the Indian Act.)
What Did Bill C-31 Do?
Bill C-31 made various amendments to the Indian Act, including the separation of band membership from Indian Status, the removal of some discriminatory parts of the Act, and the creation new classes of Indian registration.
Bill C-31 changed the Indian Act to grant bands the right to develop their own membership rules. 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.
Bill C-31 also repealed section 12(1)(b) of the Indian Act, which stated that: “a woman who married a person who is not an Indian… [is] not entitled to be registered.” The 1985 amendment allows women who "married out" — and those who lost their Indian Status through enfranchisement — to apply for the restoration of their status and rights. Bill C-31 also allows their children to apply for registration as Status Indians. The Act no longer requires or allows women to follow their husbands into or out of status. More than 114,000 people gained or regained Indian status as a result of Bill C-31. Getting rid of section 12(1)(b) brought the Indian Act into accordance with the Charter of Rights and Freedoms.
Another big change to the Indian Act dealt with Indian registration. Bill C-31 introduced two new classes of Indians. 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.) The second, known as section 6(2), applies when one parent is entitled to registration under 6(1). These sections differ mainly in regard to how status is passed down from generation to generation.
Problems with Bill C-31
While Bill C-31 addressed much of the gender discrimination against women in the Indian Act, it also created some problems. By placing women who regained status, and often their children, onto the band membership lists of First Nations, the federal government stretched already limited lands and funds to serve more people. This has, at times, caused resentment and backlash toward these people by First Nations members.
Further, the two categories of Indian registration have had consequences on the number of people entitled to Indian status rights. Status cannot be transferred if one parent is registered under section 6(2). What this means is that, 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.
Moreover, in order for a child to be registered, both the mother’s and father’s names must be included on the birth certificate. If the father’s name is not included, he is assumed to be non-status. In such situations, children born to women registered under sub-section 6(2) are not eligible for status. The amendment therefore significantly limits the ability to transfer status to one’s children.
Amendments after Bill C-31
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 reinstates 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 federal government, “All known sex-based inequities in the Indian Act have now been addressed.”