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For more than a century, Ottawa has decided who is, and who is not, an Indian, based on their parents. The Senate is trying to change that, and the Trudeau government isn’t happy

What is an Indian?

For more than a century, Ottawa has decided who is, and who is not, an Indian, based on their parents. The Senate is trying to change that, and the Trudeau government isn’t happy

The Liberal government is planning to reject an amendment to the Indian Act proposed by the Senate that could give as many as two million Indigenous people Indian status.

The Indian Act dates back to 1876, and has been described as a fundamentally racist document.

Two years ago, a Quebec court ordered the government to make changes to the act, after finding that it had, for decades, discriminated against women.

The act has always allowed men with Indian status who married non-status women before to pass their Indian status to their grandchildren and beyond. But the act, historically, stripped status from status women who married non-status men, and their children, until it was changed in 1985. That gendered distinction has withheld Indian status from thousands, if not millions, of First Nations people.

While the act has been updated several times over the past hundred years, there are still First Nations people who do not have status because of the historical language from the act. To try and rectify that — and to satisfy the court ruling — the Trudeau government introduced a bill S-3 into the Senate. Indigenous Affairs Minister Carolyn Bennett told the Senate committee that she envisioned the legislation offering Indian status to some 35,000 First Nations people in Canada.

The bill aimed to offer Indian status to anyone descended from those who were either denied status, or who lost their status, before changes were introduced to the act in 1985. The changes will primarily apply to the children and grandchildren of women who lost their status after marrying a non-Indian man and to those born out of wedlock.

The government’s changes only apply to certain Indigenous people who were denied their status between 1951 and 1985 and, by extension, their children and grandchildren.

“If we stay under the Indian Act for status, within 50 years there will be no more status Indians in Canada.”

But the Senate wanted the legislation to go further, and introduced amendments aimed at removing those distinctions for descendants of men and women who married non-Indians before 1951, going back to the 1800s. Those amendments still need to be approved by the whole Senate chamber.

Another amendment made to the bill, introduced by Senator Murray Sinclair, would require the government to offer status to applicants based on the evidence in front of them, “without being required to establish the identity of that parent, grandparent, or other ancestor.”

Indian status under the act offers increased autonomy for First Nations peoples, and ostensibly includes local decision-making on control of their land, education, and resources — though the extent to which that is actually the case is a matter of debate, and a source conflict with the federal government. The act does not cover Inuit and Métis peoples, and many Indigenous people believe the act ought to be scrapped altogether, and replaced with a more modern document that guarantees more autonomy.

Bennett told the committee that the proposal could mean bill S-3 would apply to “hundreds of thousands, or even millions, of new people and radically alter the composition of communities.” The government’s estimates, sent to the Globe & Mail, put that number at anywhere between 80,000 and two million.

While she noted the “many potential inequities not addressed in this bill,” Bennett added that the planned changes “absent adequate consultation and without knowing the practical implications beforehand would be irresponsible, and we will not be able to accept such an amendment.”

The clock is now ticking down, and a showdown between the two houses of Parliament appears to be looming.

An extension granted by the Superior Court of Quebec gave the government until July 3, 2017 to fix the issues with the Indian Act. If they don’t, a crucial part of the Indian Act will be inoperable, meaning the government won’t be able to offer new status to a huge swath of First Nations people.

But, for the government to meet that deadline, both the House of Commons and the Senate — which has been exercising its independence in recent months — will need to agree on the text of the bill.

These changes are not just tinkering — as Perry Bellegarde, National Chief for the Assembly for First Nations, pointed out to the committee in November, it is a matter of continuing the very concept of First Nations identity.

“If we stay under the Indian Act for status, within 50 years there will be no more status Indians in Canada,” Bellegarde said, calling it “a totally racist, discriminatory act.”

“It would appear that now that you are government, you’re no longer supporting that position.”

Denise Stonefish, Deputy Grand Chief with the Assembly of First Nations, said the government’s legislation simply exacerbates the problem.

“The basic approach of this bill is to continue arbitrary federal control over First Nations identity and push the residual gender-based discrimination down one generation,” Stonefish, who also chairs the assembly’s women’s council, told the Senators.

The Assembly of First Nations supports broadening the legislation, but urged caution and consultation.

Sinclair pointed out during the committee hearings that the Liberal Party itself proposed an amendment that would allow people who had been discriminated against in the past to be able to register under the bill.

“It would appear that now that you are government, you’re no longer supporting that position,” said Senator Murray Sinclair.

Bennett said while in opposition, the Liberals were able to “propose where we haven’t really understood all of the implications, or we haven’t had the resources to go and do the kind of consultation that is required.

“So, I wouldn’t say we have changed our minds,” she said. “I would just say that, as government, we have to do the due diligence and due the proper consultation.”

The government has committed to consider further changes to the Indian Act, on broader issues related to Indian registration, band membership and citizenship.

While they haven’t been finalized, the issues on the table will likely include things like other distinctions in Indian registration, issues relating to adoption, as well as unstated or unknown paternity.