Our commitment to individuals seeking status under the Indian Act
Having "status" under the Indian Act does not make someone Indigenous. The inverse is even more true – NOT having status does not mean someone is not Indigenous.1 The current Indian Act categories of 6(1) and 6(2) status do not reflect people being more or less Indigenous. At the end of the day, status is a narrow concept from a flawed legislative regime. But determining who is eligible for status is important to many people and directly impacts individuals, families, and communities. For this reason – and because a core principle of our work is to eliminate discrimination against Indigenous people – we care about Indian status and advocate for our clients within this problematic system.
Remaining Inequities in the Indian Act
The Indian Act has been around since 1876, so you'd expect it to need updating over time.
Setting aside the reality of what Senator Paul Prosper describes as "the Indian Act [being] the most blatantly racist and colonial act of Parliament that is still actively used,"2 advocates have worked hard to make the Indian Act less unfair – or less discriminatory. 3 A primary focus has been to make the Indian Act treat all genders the same. The things that are still unfair about status in the Indian Act are called "remaining inequities."
Here's a brief timeline on how Canada has changed the Indian Act over time:
- 1985: Bill C-31 eliminated the loss of status (also known as "enfranchisement") of women for marrying non-status men, restored status of those who were enfranchised, created the categories of 6(1) and 6(2) status, and permitted First Nations to assume control over membership
- 2011: Bill C-3 made it possible for enfranchised women who had their status restored to pass their status to their grandchildren and created 1951 as the date to measure whether someone is eligible for regaining status – or the "1951 cut off"
- 2017–2019: Bill S-3 removed the "1951 cut off" to treat descendants of enfranchised women the same for passing on status as descendants of status men who married non-status women
- 2022: Bill C-38 was introduced but not passed into law. It would have allowed individuals with a family history of enfranchisement to pass down status the same as individuals that do not, permitted individual deregistration, and repealed offensive language describing dependent persons
- 2025: Bill S-2 was introduced to replace Bill C-38 and continue with its same objectives. Its first reading was on May 29, 2025 and its second reading was completed on June 25, 2025
Enfranchisement
Enfranchisement is a broad term for the legal process where an "Indian" lost status. This was a significant part of Canada's assimilation policies targeting Indigenous communities for generations. The premise of "civilization" was based on discriminatory "caste" or "blood quantum" policies of British imperialism. One way to be enfranchised was for an Indian woman marrying a non-Indian man. Ending this discrimination was the focus of past changes to the Indian Act. At various times, other ways to be enfranchised included: getting a university degree and becoming "fit" or "civilized" for Canadian society, joining the medical profession, joining the legal profession, becoming a priest or minister, or submitting an application to demonstrate "fitness" to enter Canadian society. Some enfranchised individuals received land and/or financial compensation. When an Indian man was enfranchised, his wife and children would be enfranchised along with him. Enfranchisement was not eliminated from the Indian Act until Bill C-31 in 1985.
Legislation regarding Enfranchisement
In 2021, the Nicholas v Canada (Attorney General) case challenged the Indian Act for its continued discrimination for treating families with a history of enfranchisement different from those without.4 Because the parties in the Nicholas case agreed to pause the litigation if legislation addressed their issues, Canada introduced Bill C-38: An Act to Amend the Indian Act (New Registration Entitlements) in 2022. Bill C-38 also became part of the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan.5 Bill C-38 underwent its first reading in 2022 and began its second reading in 2023 until it died on the order paper in 2025 upon parliamentary dissolution for the federal election.6 Those of us watching were concerned that these proposed amendments to the Indian Act would not be advanced by a new government, but Bill S-2 was tabled to replace Bill C-38 and went through its first reading on May 29, 2025.7 Bill S-2's second reading was completed on June 25, 2025, and it has now been referred to the Standing Committee on Indigenous Peoples.8
At the committee stage, witnesses will be called to speak to the contents of Bill S-2 and committee members will complete a clause-by-clause review. Once this is complete, the committee will decide whether to support the Bill without any amendments, report to senate that it suggests amendments, or report to senate that it proposes no longer proceeding with the Bill.
The Purpose and Effect of Bill S-2
Bill S-2 would change the Indian Act so that people who are not currently eligible for Indian status because of an ancestor's enfranchisement would become eligible for status. The purpose of the enfranchisement portions of Bill S-2 is to "guarantee that people with a family history of enfranchisement are treated the same as people with no such history under the Indian Act."9 There are also proposed amendments to provide for an individual who wants to "deregister" or take their name off the Indian Register, to support women and their direct descendants who want to be affiliated with their natal band after being automatically transferred to a woman's husband's band, and to use a more neutral term for "dependent persons." If passed, the change regarding people with a family history of enfranchisement is expected to make 3, 500 people eligible for status in the first five years.10 At its second reading, Bill S-2 was debated in the Senate and Senator Yonah Martin, Deputy Leader of the Opposition, supported the Bill and affirmed
"this legislation is also about self-determination... [and] ultimately about recognizing that Indigenous peoples must have the authority to define who they are and how they belong."11
Indigenous Governing Authority over Membership
Although the Indian Act governs who is an "Indian,"12 the 1985 amendments to the Indian Act enabled bands to assume control over their membership.13 With consent from its members, a band can incorporate its Nation's own laws surrounding citizenship and identity into a membership code. This is an important expression of sovereignty – recognizing a Nation's own ways of understanding who is a community member, which can shift focus from 6(1), 6(2), and non-status divisions to a Nation's own principles of belonging, identity, and community.
Modern treaties and self-government agreements are other pathways for Nations to take more control over their membership and governance. These are important steps to implement Indigenous citizenship and membership laws into the governance of First Nations, but it can get complicated to do this in a good way when there are members of a Nation who do not have Indian status.
How We Support Individuals and Nations
We recognize that ongoing inequities of the colonial system of Indian status can be connected to an individual's sense of identity, belonging, and relationship with their community. We also see how this impacts Nations and can undermine self-government. We support individuals and families that have been subject to Indian Act discrimination, which includes helping individuals regain or acquire status and access membership in bands. We understand the significant harms of the Indian Act on families and communities, as well as the personal hardships created by denying individuals status. We strive to enable First Nations people to meaningfully exercise their rights in Canadian law to support the legal orders and self-determining authority of their communities.
As part of supporting the rebuilding of Indigenous social, political, and legal institutions, we work with Nations in upholding their own membership and citizenship laws both within the Indian Act and according to their inherent law-making authority. This includes working with Nations under modern treaty processes to implement their own laws to govern their communities, including over citizenship matters.
What might come from Bill S-2
We will watch Bill S-2 as it moves through the legislative process and support individuals who may become eligible for Indian status. We would be honoured to assist people with a family history of enfranchisement to feel more secure in their identity. We will also be available to Nations to ensure that community interests are upheld, consultation is meaningful, and that Nations can govern in the way that advances their community priorities.
Footnotes
1 In this article, we use the term "Indian" for its specific legal meaning – an individual with status under the Indian Act.
2 S-2, An Act to Amend the Indian Act (New Registration Entitlements), 1st Sess, 45th Parl, Vol 154, Iss 14 (second reading 19 June 2025), < Debates, Issue 14 (June 19, 2025) >.
3 Some key cases of advocates pushing this work include: McIvor v Canada (Registrar of Indian and Northern Affairs) 2009 BCCA 153; Descheneaux c Canada (Procureur général) 2015 QCCS 3555; Gehl v Canada (Attorney General) 2017 ONCA 319
4 Nicholas v Canada (Attorney General) 2021, < https://www.canada.ca/en/indigenous-services-canada/news/2022/03/first-nations-families-and-canada-agree-to-put-litigation-on-hold-while-working-to-endvthe-legacy-of-enfranchisement-under-the-indian-act.html >.
5 Government of Canada, "United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan," ch 2, online: < Chapter 2: First Nations priorities >. Specifically: APM #7: Support the adoption of Bill C-38, which seeks to address discrimination in the registration and membership provisions of the Indian Act.
APM #8: Co-develop a collaborative consultation process on a suite of broader reforms relating to registration and band membership issues, prior to any transition away from the Indian Act. This includes to consult, cooperate and effectively engage with First Nations women to eliminate remaining gender-based issues; Canada recognizes that the Indian Act is a colonial-era law designed to exert control over the affairs of First Nations, and as such, the Act will never be fully aligned with the UN Declaration. For Canada's laws to fulfill the UN Declaration, the Indian Act must be repealed. The government is seeking to make the Act's registration and band membership provisions more consistent with the UN Declaration, until a clear consensus on a way forward on comprehensive change or the Act's repeal is possible.
APM #9: Consult First Nations and other impacted Indigenous groups to support the co-development of opt-in alternatives to Indian Act registration and membership (First Nation citizenship). This will include a broad spectrum of Indigenous demographic groups, such as women, girls and 2SLGBTQIA+ people, Elders, Treaty groups, etc.
6 S-38, An Act to amend the Indian Act (new registration entitlements, 1st Sess, 44th Parl, Vol 151, No 148 (first reading completed 14 December 14 2022), < https://www.parl.ca/DocumentViewer/en/44-1/bill/C-38/first-reading >. [C-38]
7 S-2, An Act to Amend the Indian Act (New Registration Entitlements), 1st Sess, 45th Parl, Vol 154, Iss 4 (first reading 29 May 2025), < Government Bill (Senate) S-2 (45-1) – First Reading – An Act to amend the Indian Act (new registration entitlements) – Parliament of Canada >.
8 S-2, An Act to Amend the Indian Act (New Registration Entitlements), progress on LEGISinfo, < https://www.parl.ca/legisinfo/en/bill/45-1/s-2 >.
9 S-2, An Act to Amend the Indian Act (New Registration Entitlements), 1st Sess, 45th Parl, Vol 154, Iss 9 (second reading 11 June 2025), < > Debates, Issue 9 (June 11, 2025)>.
10 Indigenous Services Canada, "The Honourable Mandy Gull-Masty applauds the introduction of a new bill to address remaining inequities and band membership provisions of the Indian Act", online: < https://www.canada.ca/en/indigenous-services-canada/news/2025/05/the-honourable-mandy-gull-masty-applauds-the-introduction-of-a-new-bill-to-address-remaining-inequities-and-band-membership-provisions-of-the-india.html >.
11 S-2, An Act to Amend the Indian Act (New Registration Entitlements), 1st Sess, 45th Parl, Vol 154, Iss 15 (second reading 25 June 2025), < Debates, Issue 15 (June 25, 2025) >.
12 Indian Act, RSC 1985, c I-5, s 6, < https://laws-lois.justice.gc.ca/eng/acts/i-5/ >.
13 Ibid, s 10.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
