Quebec Native Women was founded in 1974 to fight sex-based discrimination in the Indian Act. Forty-five years later, this discrimination persists. Amnesty International spoke with Quebec Native Women’s Legal and Policy analyst Éloïse Décoste to learn more about steps her organization is taking to end sex-based discrimination in the Indian Act once and for all. Here’s what she had to say.

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For people who aren’t familiar with the issue, can you please tell me how the Indian Act discriminates against Indigenous women?

The Indian Act determines who is consider an Indian in the eyes of the government. Historically, an Indian* would be defined as a man, his wife, and his children. When an Indian woman married a man without Indian status, she lost her own status and could not pass her status on to her children. This was the situation until 1985.

In 1985, after Indigenous women mobilized and took legal action and raised concerns with international bodies, and after Canada adopted the Charter of Rights and Freedoms, the Indian Act was amended by Bill C-31. This bill removed the explicit discrimination against Indigenous women, and allowed women who had married non-Indian men and lost their status to have their status reinstated. But the Bill introduced some new forms of discrimination.

Bill C-31 created two categories of Indians—6(1) and 6(2)—which refer to sections of the Indian Act, and impacts your ability to pass along your status to your children. If both parents are Indian the child is entitled to 6(1) status, regardless of gender. So on it’s face, the Act seems neutral. But, it is more complex than that. If one parent has 6(1) status, and the other does not, the child get 6(2) status. But if one parent has 6(2) status, and the other parent does not have status, the child is not entitled to status and thus is not considered an “Indian” in the eyes of the law. What we see here is the continuation of the assimilationist goal of the Indian Act, which previously was carried out through the exclusion of women and now is pursued through inter-generational exclusion.   

The other aspect is that the Bill C-31 introduced a hierarchy of 6(1) status. All those who had status prior to 1985 maintained it and received 6(1)(a) status (this includes non-Indigenous women who had acquired status by marrying an indigenous man). But the women who had lost status through marriage and had it reinstated by the bill received 6(1)(c).

What this did in practice is that two cousins, both of whom have one parent that is Indigenous and one that is not, will not be entitled to the same status, depending on the gender of their Indigenous parent. The cousin whose father is his Indigenous parent will have 6(1) status, while the cousin whose mother is his Indigenous parent will have 6(2) status. As discussed above, this in turn will have impact upon the next generation with regards to their respective ability to transmit status to their children and grandchildren.

Despite court challenges in 2010 and 2015 which led to new amendments in the Indian Act, the differences in status between 6(1) and 6(2) remains. Moreover, with each amendment the government further reinforced the logic of hierarchy of 6(1) status by creating new subparagraph, rather than removing such hierarchy which would solve a good amount of discrimination.

What are the impacts of sex-based discrimination in the Indian Act on Indigenous women and girls?

Without status, some women could not live on reserves, take part of the civil, political and social life of their community and evolve within their own language and culture, Consequently, when they were reinstated, they were seen as outsiders. Having different categories of “Indians” creates a system where some women are seen as “less Indian” in their communities.

It is clear with the issue of violence and missing and murdered Indigenous women and girls is related to the precarity and vulnerability of Indigenous women and girl created notably by the exclusion and devaluing of Indigenous women in their communities through their exclusion from status and therefore the right to participate in the life of their community.

There’s the trauma of being excluded and being considered less. There’s the challenge of being seen as Indigenous from the settler world but not seen as Indigenous from the Indigenous world.

The fact that women were excluded from decisions in their communities has also led to a lack of interest in the issues affecting Indigenous women.

Some changes have been made to the Indian Act to eliminate sex-based discrimination, but the changes haven’t been enough. What further changes are needed to end sex-based discrimination in the Indian Act?

There are two key changes that need to be made. The discrimination was corrected in parts but they only impacted women who lost their status between 1951 and 1985. These two cut off dates maintain the discrimination. The cut off dates must be removed to end the discrimination.

The 1951 cut off date was intended to be removed by the last bill that was adopted (Bill S3) in 2017, but the implementation of the specific provision on the cut off date was suspended and it’s not clear when it will come into effect. The government insists it has to consult first, although there is not doubt that the Indian Act pre-1951 was just as discriminatory as the Indian Act post-1951. That speaks to the politicization of the issue.

Laws surrounding Indian status continue to change, increasing the number of status Indians. But the funding and land base for communities have not increased, so there is reluctance from leadership and others to remove the discrimination. More members with the same funding and land base means less resources for more people.  Removing the 1951 cut off date is seen as opening up the flood gate to a ton of registrations and creating community pressures. But this perception does not seem to match real statistics. It seems to be more a scare tactic to delay equality.

Indigenous women’s groups have been fighting for “6(1)(a) all the way” for years. This was confirmed by the UN Human Rights Committee decision issued in January 2019 in the McIvor case, which said that the categories of 6(1) status has created stigma and discrimination and should be removed.

Why do you feel that government has been resistant to making the necessary remaining changes to the Indian Act to eliminate sex-based discrimination?

Government has been resistant because the goal of the Indian Act was assimilation and removing the discrimination doesn’t help with that. It’s just a new mechanism to pass the Charter test around discrimination but continue to move towards having less and less Indians.

When we see the crisis of under-funding of services on reserve, it’s not an actual problem of cost, it’s a problem of priority. It all goes back to the constitutional responsibilities of Canada towards Indigenous peoples.

That’s why, at the end of the day, what our petition and campaign is about is about removing all forms of discrimination as a first step towards moving away from the Indian Act and towards self-determination and the full implementation of the UN Declaration on the Rights of Indigenous Peoples. First, we need to remove discrimination so everyone can be at the table when self-determination is discussed.

What concrete steps are you calling on government to make to end sex-based discrimination in the Indian Act?

Fully implement UN decision in the McIvor case, which says that the hierarchy of categories of status in 6(1) should be eliminated and remove all other forms of discrimination within the Indian Act, including the cut-off dates and the very problematic rules around unstated or unknown paternity. Moreover, those whose rights have been violated should be provided with reparations.

What action can people take to support Quebec Native Women’s campaign to end sex-based discrimination in the Indian Act?

We want to end sex-based discrimination in the Indian Act by introducing legislation or amending existing legislation to remove the hierarchy of status in 6(1) and 6(2). We are also calling on government to issue a decree immediately to remove the cut-off date for reinstating status to Indigenous women. Once that is done, we believe we need to work of moving beyond the archaic system of the Indian Act towards self-determination. 

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*The term “Indian” is used to refer to people with legal status under the Indian Act. In contexts not related discussing the Indian Act, Amnesty International uses the terms Indigenous, or the distinction-based terms First Nations, Métis, and Inuit.