‘Justice will prevail’: Indigenous families fight to reclaim status and land rights

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To vote, get a degree or keep children out of residential schools, Indigenous men gave up Indian status for themselves, their wives and their children. Now, a constitutional challenge aims to get it back.

In 1876, Canada adopted the Indian Act. The legislation established which Indigenous people were legally recognized through the Indian status system and implemented colonial structures like the reserve system, which restricted First Nations people to lands “reserved” for them to live on, a fraction of their ancestral territories.

The Indian Act still dictates much of Indigenous people’s lives, including many land rights. Only a status “Indian” has the constitutionally protected right to hunt, fish, harvest and live on reserve lands, the last of which is no longer mandatory.

The more status “Indians” there are, in other words, the more people for whom Canada is legally obligated to uphold treaty promises, including to share lands and resources. Which is why, from the beginning, “Canada was very clear that the goal of the [Indian Act] was ultimately to assimilate all First Nations individuals,” Vancouver lawyer Ryan Beaton says.

To expedite assimilation, Indigenous people were pushed to accept enfranchisement, which meant renouncing Indian status in order to gain Canadian citizenship. Although enfranchisement was framed as voluntary, coercive policies outlined in the Indian Act would suggest otherwise. Status holders couldn’t own property off reserve, buy alcohol or vote. Indigenous men were automatically enfranchised if they got a university degree or became priests.

And enfranchised Indigenous people — usually men — had a choice in whether or not to send their children to residential schools. These institutions were designed for “Indian” children; there was no need for a non-status child to attend.

Indigenous women had even less choice regarding assimilation, because of gender discrimination in the Indian Act. If an Indigenous woman married a non-status or a non-Indigenous man, she lost her own status and was no longer recognized as a member of her First Nation. If she married an Indigenous man with status in a nation other than her own, she lost her own status number and band membership, becoming legally recognized through her husband’s First Nation and seen as an entity attached to his status number. And if an Indigenous man was enfranchised, his wife and children lost their status too.

And very rarely could women make individual applications to enfranchise and renounce their status to become Canadian citizens. This means, Beaton says, that many women were cut out of a decision that affected their descendants’ access to land and rights forever.

Now, Beaton is representing three families taking legal action against the federal government, framing Indigenous women’s loss of rights through their male relatives’ enfranchisement as an act of gender discrimination that violates the constitution. The group launched its constitutional challenge, Nicholas v. Canada, in 2021, then put it on pause in 2022, when it looked like the federal government might deal with the issue through Indigenous Services Minister Patty Hajdu’s introduction of Indian Act amendments in Bill C-38.

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