The term “Indian” is believed to have originated with Christopher Columbus, who used the word to describe Indigenous peoples in the Americas. In the late-1400s, Columbus believed he had reached Asia when, in fact, he had arrived in the Caribbean. The term has since persisted, and has been used indiscriminately to refer to all Indigenous peoples in North, Central and South America, with the exception of the Inuit in the Canadian Arctic, Greenland and Alaska. Outside legal definitions in Canada, the term “Indian” is no longer considered appropriate to refer to Indigenous peoples.
A Collective Noun
Historically, “Indian” has been used in Canada to refer to First Nations people, and in some cases, to refer broadly to Indigenous peoples. Today, terms like “Indigenous” and “Aboriginal” are considered more politically correct than “Indian” when referencing Indigenous peoples as a whole. Since the Canadian government accepted the United Nations Declaration on the Rights of Indigenous Peoples without qualifications in 2016, the term “Indigenous” has been used widely in Canada to refer to First Nations, Métis and Inuit peoples.
While “Aboriginal” has fallen out of favour, in part due to the negative connotation some suggests it carries, the term is used in section 35 of the Constitution Act, 1982 and other pieces of legislation. Therefore, “Aboriginal” (like “Indian”) carries legal significance in Canada. The word Native — another catch-all phrase sometimes used to refer to Indigenous peoples in Canada — is considered outdated and offensive by many because of its vagueness.
Section 35(2) of the Constitution Act, 1982 defines three groups of Aboriginal peoples — Indians, Inuit and Métis. Indians, in this case, refers to First Nations people. Legally speaking however, not all First Nations peoples are Indians — that is, not all have Indian Status. Indian is a legal identity that has been defined since 1876 by criteria set out in the Indian Act. The people who fit these criteria are known as Status Indians. In 1876, the Act defined such a person as:
First. Any male person of Indian blood reputed to belong to a particular band;
Secondly. Any child of such person;
Thirdly. Any woman who is or was lawfully married to such person.
These categories have changed over time to become more inclusive, particularly of the women (and their children) who lost their status after marrying Non-Status men. Regardless of such amendments, the Act continues to define Indian status. All people who fit the Act’s description are classified as Registered Indians (also known as Status Indians) and appear on the Indian Register — the official record of Registered Indians in Canada, maintained by the federal government. The register contains the names, birthdates, death dates, and marriage and divorce details, as well as records of persons transferring from one band to another, for all Registered Indians.
Status Indians are registered under the Indian Act, and are therefore also known as Registered Indians. Status Indians and Registered Indians have the same meaning. People with status are issued identification cards (known as status cards) that contain information about their identity, band and registration number.
According to the federal government, “under the Indian Act, Status Indians may be eligible for a range of benefits, rights, programs and services offered by the federal and provincial or territorial governments.” For example, all Status Indians are exempt from paying income tax on any income they earn on a reserve, and the personal property of a Status Indian cannot be seized if it is situated on a reserve. However, the provisions governing these exemptions are complex and do not apply uniformly in every scenario.
Having status does not necessarily guarantee certain rights, such as the ability to live on reserve. Non-Status people can also live on reserve in some cases, depending on community bylaws. Status also does not guarantee membership in a band. After amendments to the Indian Act in 1985, bands gained the ability to create their own membership rules. (However, if they do not wish to do so, the federal government will continue to manage membership lists.) Therefore, it is possible to have status without band membership or band membership without status.
Treaty Indians are Status Indians who belong to a First Nation or band that signed any treaty with the Crown since 1701, thereby surrendering land for specified benefits. Some Treaty Indians live on a reserve not covered by a treaty, meaning that their community never signed a treaty with the government to cede (surrender) their lands. These individuals live on what is typically known as unceeded territories.
The term also applies to First Nations who have self-government agreements. Treaties may provide the descendants of signatories with annuities (annual payments) and rights (such as the right to hunt and fish) in addition to those given to all Status Indians.
Non-Status Indians are First Nations peoples who are not registered with the federal government. In some cases, they do not qualify for status based on the requirements set out by the federal government in the Indian Act. In other cases, Non-Status Indians have lost their status as a result of marriage to a Non-Status person, enfranchisement or other legal restrictions. (See also Indigenous Suffrage in Canada and Indigenous Women and the Franchise.)
Not legally recognized under the Indian Act, Non-Status Indians do not enjoy the same rights and privileges as Status Indians; some even face criticism from Indigenous groups who consider them “inauthentic” Indians. Being legally defined as Indian does not wholly define one’s ancestral or cultural identity. Non-Status Indians still retain Indigenous identity. They also often share many of the same socio- economic issues as Status Indians, including lack of access to health care and education, poverty, displacement from ancestral homelands, and the loss of Indigenous culture and language. Ineligible for status, Non-Status Indians have had difficulties finding avenues of support for these issues. Organizations such as the Congress of Aboriginal Peoples have sought to represent the concerns of Non-Status Indians (and other Indigenous peoples) in Canada.
In April 2016, the Supreme Court of Canada ruled that “Indian,” as defined by section 91 (24) of the Constitution, includes Non-Status Indians, as well as the Métis. However, this does not mean that Non-Status people are now Status Indians. The Indian Act, which continues to define Indian Status, was not changed by this ruling. This 2016 judgement means that Non-Status people fall under the legislative jurisdiction of the federal government.
Métis and Inuit Peoples
Indian Status is held only by Indigenous peoples who are defined as such under the Indian Act. Inuit and Métis do not have Status, just like Non-Status Indians. However, in separate judgments, the Supreme Court ruled that Métis and Inuit are the responsibility of the federal government (as opposed to provincial or territorial governments). In a 1939 ruling, the Court gave responsibility for Inuit affairs to Ottawa, and in 2016, it did the same for the Métis and Non-Status Indians. In doing so, the court has ruled that these peoples are included in the definition of Indian in section 91 (24) of the Constitution, which covers the federal government’s power over matters relating to “Indians, and Lands reserved for the Indians.”
As of the 2016 Statistics Canada census, 1.7 million people identified themselves as Aboriginal, representing 4.8 per cent of the Canadian population. Of those people, 58.4 per cent (977,235) were First Nations, 35.1 per cent (587,545) were Métis and 3.9 per cent (65,025) were Inuit.
Within the First Nations population, 83.9 percent (820,120) were Registered (Status) or Treaty Indians, and 2.83 per cent (232,380) identified as Non-Status. Among the Status and Treaty Indian population (744,855), 44.2 per cent lived on reserve, while the rest lived off reserve. From 2006 to 2016, there was population growth both on reserve (with an increase of 12.8 per cent) and off reserve (49.1 per cent).
Indian Act Amendments Affecting Status
Since 1876, many Status Indians have lost their status because of patriarchal and assimilationist terms in the Indian Act. Until 1951, the Indian Act forced many Status Indian men and women to “enfranchise” — give up status rights for citizenship rights. Gaining the franchise, joining the military, obtaining a college degree or becoming a professional automatically resulted in the loss of Indian status. In addition, any Status Indian who resided outside of Canada for five years or longer resigned his or her status. (See also Indigenous Suffrage.)
Before 1985, a Status Indian woman also lost her status if she married a man who did not have status; children from these marriages lost their status as well. At times, the loss of status severed peoples’ ties to their ancestry and community. Federal amendments to the Indian Act have restored status to many people who lost it because of exclusionary rules and narrow definitions of Indian.
Bill C-31 (1985)
In 1985, Bill C-31 revised section 6 of the Indian Act and introduced two new classes of Indians:
6 (1) – those who can pass Indian status to their children;
6 (2) – those who have Indian status, but cannot pass their status to their children unless the other parent also has status.
These amendments allowed some women who had lost their status through marriage to Non-Status Indian men to regain it. Bill C-31 also enabled first-generation children of these marriages and individuals who were enfranchised to regain their legal status. More than 117,000 people gained or regained Indian status as a result of Bill C-31. (See also Indigenous Women and the Franchise.)
Bill C-31 also separated Indian status from band membership. The amendment to the Act granted bands the right to develop their own membership rules. Bands could now determine 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. Therefore, while most members of bands are also Status Indians, it is possible to have status without belonging to a band, or vice versa.
Some critics of Bill C-31 have argued that the amendments did not fully remedy the sexism and racial discrimination inherent in the Indian Act. For example, the children of a Non-Status Indian and a Subsection 6 (2) Indian will not have status. Subsection 6 (2) therefore perpetuated discriminatory measures against marrying Non-Status peoples. In addition, the children of women who had regained their status in 1985 were classified as 6 (2), which meant they were prohibited from passing on their status to their children. This is often referred to as the “second generation cut-off.”
Bill C-3 (2010)
Sharon McIvor — a First Nations activist — was one of many women registered as a 6 (1) Indian after the passing of Bill C-31. McIvor lost her status when she married a Non-Status man before the 1985 amendment. Her son was born with 6 (2) status and could not pass it on to his children because he married a Non-Status woman.
Dissatisfied with this outcome, McIvor took the federal government to court. On 8 June 2007, the British Columbia Supreme Court ruled that such distinctions in the Indian Act were discriminatory. The federal government appealed the judgment, but the British Columbia Court of Appeal upheld the trial court’s judgement on 6 April 2009. The appeal court gave the federal government a year to amend the Indian Act.
As a result of the McIvor v. Canada case, the federal government introduced legislative amendments — known as Bill C-3 — in 2010 that ensured Indian status to eligible grandchildren of women who had lost status as a result of marrying Non-Status men before 1985.
Bill S-3 (2016)
In 2015, the Descheneaux case demonstrated that, despite the gains made by the McIvor case, sex-based discrimination still existed in the Indian Act, particularly as it relates to the way status is passed to cousins and siblings. In that year, the Quebec Superior Court struck down several provisions of the Indian Act (concerning section 6) that it determined violated equality rights under the Charter of Rights and Freedoms. The court delayed the implementation of its ruling to allow the federal government time to make the necessary legislative amendments. In November 2017, the federal government pledged to amend the Act accordingly.
Bill S-3 — the government’s proposed amendment to the Indian Act — aimed to remove sex-based discrimination in the Act. It came into effect on 22 December 2017. Among other provisions, the amendment enables more people to pass down their status to their descendants and reinstate status to those who lost it before 1985. For example, it provides ways to register people with unknown paternity and who were unmarried minors between 1951–85 and affected by registration rules in place at the time.
Part of the bill — related to restoring status to women and their offspring who lost status before 1951 — is still in the consultation phase. The federal government has stated that, after consultation with First Nations communities, another provision will come into effect that will remove the “1951 cut-off” — the issue concerning whether to allow status for the offspring of women who married non-status men prior to 1951.
Debate: Keep or Eradicate Status?
Some Indigenous peoples believe that Indian Status and the Indian Act have a legitimate place in federal law and Indigenous communities. The 1969 White Paper — a federal proposal to do away with reserves and Indian status — was met with heavy resistance by many First Nations. They claimed that Indian status not only acknowledged the history and relationship between the Crown and Indigenous peoples in Canada, but also obligated the government to acknowledge that relationship and its commitments to them. In addition, some Status and Treaty Indians feared eventual assimilation without the protection of status. As David Newhouse, the director of the Chanie Wenjack School for Indigenous Studies at Trent University, explains, “[The Indian Act] provides the structure for local community governance and community life. Reforming the Act in one fell swoop, or repealing it, would be enormously disruptive to First Nations.”
Other Indigenous peoples argue that, since Indian is a legal identity defined by the federal government rather than by Indigenous nations themselves, Indian Status and the Indian Act should be abolished. As Assembly of First Nations chief Perry Bellegarde stated in 2018, “We all want to move beyond the Indian Act’s control and reconstitute ourselves as Indigenous peoples and Nations with fundamental inherent rights.” Critics also point to the fact that the Act has been used to disadvantage many people, particularly women and their children. They argue that it upholds a paternalistic relationship between Indigenous peoples and the Canadian government, one in which Indians are “wards” of the state who require control and direction.
Furthermore, critics contend that the government has used the Indian Act (as well as other legislation) to assimilate Indigenous peoples to White, colonial Canadian culture. These Indigenous peoples hope that ward status will change with the increasing move towards self-government and reconciliation, contributing to a change in government-Indigenous relations. Critics generally argue that cultural authenticity and status are not connected, and that legal definitions of Indian are nothing more than government impositions.