New bill to address lingering discrimination from Indian Act enfranchisement rules

Hundreds of First Nations people may be able to reclaim Indian status with new federal legislation that seeks to address some of the longstanding gender-based discrimination and inequities in the Indian Act.

Indigenous Services Minister Patty Hajdu introduced the proposed legislation, Bill C-38, in the House of Commons Wednesday. It deals primarily with enfranchisement — a historical assimilation policy of giving up status under the Indian Act.

"The notion that the Indian Act might be changed … the possibility that somehow Canada could acknowledge that wrong and then agree to right that wrong is a huge, huge achievement," said Kathryn Fournier.

"It's taken 100 years for Canada to say, at least in the case of my family, this was a wrong."

Fournier is one of 16 plaintiffs who filed a constitutional challenge last year in the Supreme Court of British Columbia. The plaintiffs agreed to put their litigation on hold while Ottawa worked to resolve issues with enfranchisement through new legislation.

What is enfranchisement?

The process of enfranchisement began in 1857 under the Gradual Civilization Act, and continued under the Indian Act of 1876 as an assimilation policy into Canadian society. 

Enfranchisement meant First Nations people lost their treaty rights and Indian status. The process was often involuntary, such as when First Nations people obtained a university degree or when First Nations women married non-First Nations men.

However, from 1876 to 1985, First Nations men could submit an application to be voluntarily enfranchised by showing they were "capable of assuming the duties and responsibilities of citizenship."

It was also a method used by some to avoid their children going to residential school.

Others, like Fournier's grandfather Maurice Sanderson, a member of Pinaymootang First Nation in Manitoba enfranchised for different reasons.

Sanderson gave up his status 100 years ago in order to own property and vote. When Sanderson enfranchised, his wife and children lost their status, too.

Proposed amendments

While Fournier gained status under previous changes to the Indian Act, she's unable to pass status on to her three children.

That will change if the proposed amendments are enacted. Bill C-38 seeks to ensure First Nations people with family histories of enfranchisement are entitled to registration under the Indian Act and can pass on that entitlement to descendants to the same degree as those without family histories of enfranchisement.

Fournier said she raised her children to value their Anishinaabe culture.

"To be able to say that they can officially and formally claim that connection and officially be recognized as being part of that community. It's a huge thing for them," said Fournier.

"It has less to do with any particular benefits that may accrue. It has mostly to do with their ability to say quite clearly and quite openly that this is part of who I am."

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Ryan Beaton, a lawyer at Juristes Power Law representing the plaintiffs, has been working on the case for five years.

He said the constitutional challenge will remain on hold until the bill is passed, but is encouraged that the changes to the Indian Act didn't require a lengthy trial.

"For the families involved, it has already been a very long fight," said Beaton.

He said the draft legislation provides the remedy that the plaintiffs are looking for.

"With respect to their situation, in essence, make it that no one today is denied status because of a family history of enfranchisement," said Beaton.

WATCH | New bill to address inequities of Indian Act: 

New bill seeks to address Indian Act’s lingering discrimination

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A proposed bill that seeks to address gender-based discrimination and inequities in the Indian Act could restore Indian status for hundreds of First Nations people.

The proposed amendments would also address individual deregistration, natal band reaffiliation and membership, as well as outdated and offensive language related to dependent persons. 

It is expected that approximately 3,500 individuals could be newly eligible for registration as a result of the legislation.

"Let's be clear, the Indian Act is a colonial piece of legislation, and while some changes have been made, more are necessary," said Hajdu.

"At the end of the day this bill is about people, First Nations people, who suffered discrimination and who shouldn't have."

Planned consultation

Hajdu said there is more work to be done. The government is launching a consultation process on broader issues related to registration and band membership in the new year.

One of the issues it's looking to address is the second-generation cut-off, which was introduced in 1985 as a part of previous Indian Act amendments related to the ability to transmit registration entitlement to children. 

"It's a complicated space because, of course, status and identity and First Nations membership are all unique and distinctive and yet are woven together," said Hajdu.

"That's why we're launching these consultations in 2023 to get at the specific question of how to do that work delicately, respectfully, and in full partnership with First Nations."