By then, another challenge to the regulations governing Aboriginal status was coming from a different direction. Recall that Native women who married non-Natives had been required to give up their Indian status under the provisions of The Indian Act because they were now considered to be assimilated. In 1982, however, the Canadian government had created the Charter of Rights and Freedoms, which explicitly forbids discrimination on the basis of sex. A number of Native women decided to challenge The Indian Act on the grounds that it discriminated against women because men were not required to give up their status when they married non-Natives.

Bill C-31, 1985

After 1985, the government ceded to Natives the right to determine band membership, a power the government had previously held. Now, there were two types of legally recognized Natives: those who were listed as band members under the old terms of the Indian Act and those who were registered according to the new selection process.

33-34 ELIZABETH II

CHAPTER 27

An Act to amend the Indian Act

[Assented to 28th June, 1985]

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

6.(1)Subject to section 7, a person is entitled to be registered if

(a)that person was registered or entitled to be registered immediately prior to April 17, 1985;

(b)that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act;

(c)the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;

(d)the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;

(e)the name of that person was omitted or deleted from the Indian Register, or from band list prior to September 4, 1951

(i)under section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject-matter as that section, or

(ii)under section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject-matter as that section; or

(f)that person is a person both of whose parents are or, if no longer living, were at the time of death entitled to be registered under this section.

(2)Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1).

(3)For the purpose of paragraph (1)(f) and section (2),

(a)a person who was no linger living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)(a); and

 

(b)a person described in paragraph (1)(c), (d) or (e) who was no longer living on April 17, 1985 shall be deemed to be entitled to be registered under that paragraph.

7.(1)The following persons are not entitled to be registered:

(a)a person who was registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and whose name was subsequently omitted or deleted from the Indian Register under this Act; or

 

(b)a person who is the child of a person who was registered or entitled to be registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and is also the child of a person who is not entitled to be registered.

(2)Paragraph (1)(a) does not apply in respect of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act.

(3)Paragraph (1)(b) does not apply in respect of the child of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act.

An Act to amend the Indian Act, Statutes of Canada 1985, c. 27.

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In 1985, the government capitulated with an amendment to the Indian Act called Bill C-31. Under the terms of the bill, women who had lost their status through marriage could apply to the Department of Indian Affairs for reinstatement, and their children could also gain Indian status.

There was a good deal of opposition to the bill when it was proposed from band councils across the country. Some clearly feared that large numbers of women would apply for reinstatement and then wish to return to the reserves, where resources like housing and employment opportunities were already severely limited. In short, the communities would be unable to cope with the additional pressures. Others argued that women who had married non-Natives had sold out their heritage and had no right to try to reclaim it. Still others argued that the federal government was yet again dictating who was to be considered "Indian" and that was a right that only Aboriginal peoples themselves should have.

1985 - Bill C-31

The Gradual Enfranchisement Act of 1869, in defining those eligible for Indian status, had excluded women who married non-Indian men from eligibility for treaty and other benefits. In 1985, this portion of the Act was finally repealed with Bill C-31, a somewhat controversial measure that granted women the right to maintain their Indian status upon marriage. The bill also reinstated that status to those who had lost it by acquiescing to the enfranchisement process, obtaining a university degree, or by serving in the armed forces during the Second World War. Within six years of the bill's passage, over 69,000 individuals had been granted their Indian status once again, but this did not mean that all were accepted back onto the reserves they had left. Many bands saw this legislation as another legal creation of the federal government without input from Native people and a measure that created as many problems as it solved. Several reserves were already overcrowded, with too many people sharing too few resources. Wealthier bands, with profits from resource-leasing revenues, feared opportunistic claims from individuals more interested in the monetary benefits of Indian status than in maintaining Native culture. A band from northern Alberta pressed its opposition to the measure in a federal court case, but the decision in Sawridge Band v. Canada upheld the legislation. The dissension that Bill C-31 caused among Natives prompted the government to relent somewhat, devising yet a new category of "Indians" in the process. In essence, the government has established procedures to allow bands to determine their own membership lists, with the result that "Bill C-31 Indians" now exist as a subgroup within the larger body of Status Indians.

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In part to address this last concern, another component of Bill C-31 permitted bands (for the first time since Confederation) to determine who could be a member. Band councils were given until mid-1987 to devise a membership code, which then had to be approved by the Department of Indian Affairs. Now, essentially two types of Indian were recognized in law: one might be a "registered" Indian under the old terms of the Indian Act or a "band member" Indian under the local regulations of a band.

Written By

Kerry Abel
Adjunct Professor
Carleton University
This is a brief description of Kerry Abel

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