The Problem with Indian Status, Part 2: The Law

Part 2 of a three-part series, this post covers problems with the law on Indian status. If you missed Part 1, you can read it here. Some indigenous people prefer to be referred to as “Indian” while others do not. In this blog post, I use the word as a legal term defined under the Indian Act.

The problems with the Indian Act status regime could fill many volumes. What follows are only some of the problems with the substance of the law.

The Law Itself is Arbitrary, Discriminatory and Imposed

Arbitrary – The section 6(1) and 6(2) status regime is based on a form of blood quantum. If you have less than “half” Indian heritage you are excluded from status. The rules do not account for a person’s self-identification, community acceptance, depth of ancestral connection to a community, community involvement, cultural connection, residence on reserve or any other factors that are relevant to how people identify themselves and others.

Discriminatory – Despite the changes to the Indian Act supposedly intended to remedy gender discrimination, in certain situations people with female Indian ancestors who “married out” are still disadvantaged relative to those whose Indian ancestors are male. In this way, those with a predominantly matrilineal Indian lineage are subject to the second generation cut-off sooner than those whose lineage contains more male Indians. For more on the second generation cut-off see Part 1 of this series.

Imposed – Contrary to principles of self-determination, the Indian Act status rules give indigenous communities no control over who is and who is not considered “Indian”. Instead the criteria and administration of the regime is controlled by Canada. While Indian bands can now opt to create their own Band Membership codes under the Indian Act, the funding of federal programs based on number of status members discourages bands from including non-status persons in their membership as doing so will force them to spread limited funding amongst a larger population.

Check back on Wednesday for Part 3 where we’ll discuss some of the problems with the policy and administration of the status rules.