By Pamela D. Palmater
Canada has a dark colonial history which has had devastating impacts on Indigenous Nations that continue to be felt today. Despite the goodwill shown by Indigenous peoples to the newcomers to this territory, and the many peace and friendship treaties that were signed, Canada has embarked on a genocidal policy objective to either assimilate or eliminate Indigenous peoples. Pre- and post-confederation governments designed their laws and policies to dispossess Indigenous peoples of their lands and resources and reduce Canada’s financial obligations to Indigenous peoples acquired through treaties or other agreements. In order to do this, Canada first set up a fictional blood quantum formula in the Indian Act to identify “Indians” and eliminate them over time.
Blood quantum is a fictional concept based on racist ideologies about what makes someone “Indian” for legal purposes. It presumes that each child inherits 50 percent of their “blood” from each of their biological parents. Under the current Indian Act, this would mean that if an Indian woman had a child with a non-Indian man, the child would only be 50 percent Indian, but could still be registered as an Indian (also referred to as Indian status). However, if that “half Indian” person in turn had a child with another non-Indian, their child would only be considered 25 percent Indian—and thereforenot entitled Indian status (also known as a non-status Indian). The math here is very particular: its purpose is to eliminate Indians, not create them. For example, two halves (two parents of 50 percent Indian ancestry) can combine to make a whole Indian (a 100 percent Indian child), but two quarters (twoparents of 25 percent status) do not add up to make a 50 percent Indian.
No other factors are considered when legislating who is and is not an Indian. Residency, culture, traditions, practices, languages and Indigenous laws are irrelevant in the determination of Indian status under the Indian Act. Gender, however, remains a largely deciding factor in whether or not one has the ability to transmit Indian status to their children. Under previous Indian Act rules, Indian women who married non-Indian men lost their Indian status, as did their children, while the non-Indian wives of Indian men (and her children) actually gained Indian status. While various court cases have since challenged these sexist and racist laws, the Indian Act still discriminates against the children and grandchildren of Indian women who married out (married a non-Indian).
When the Indian Act was amended due to the Sandra Lovelace case, the federal government restored Indian status to those Indian women who married out — but not under the same category as their brothers. This meant that their brothers’ children would have the same status as their fathers, but the women’s children were registered under a lesser category of Indian status. This lesser category, known as section 6(2), means that the child has no right to transmit Indian status to their own children in their own right.
Let’s look at an example. My grandmother married a non-Indian and lost her Indian status. This meant that my father did not have Indian status, either, nor did me or my children. When the Indian Act was amended in 1985 to restore Indian status to her, she was wasn’t registered under the same section as her brothers. Her child, my father, could only be registered under section 6(2), whereas her brother’s children were registered under section 6(1)(a). This meant that my great-uncle’s grandchildren were registered as status Indians, but I, as the granddaughter of a 6(2) status woman, could not be.
The Act was amended again in 2011, after Sharon McIvor won her discrimination court case. However, the problem was only fixed for a tiny sub-group of one generation. That is, I could be registered finally, but only under the section 6(2) category, meaning I still cannot register my children. But had my grandmother been my grandfather instead, my father and I would have been registered under 6(1)(a) the entire time—and my children would be registered today.
If all of this sounds confusing, it should. There are eight categories of Indian status, and each section determines whether or not an individual Indian can pass on their status to their children. Whether one can be registered by Indian and Northern Affairs Canada as an Indian depends on a complex set of rules related to gender, birth dates, marriage dates, adoptions, whether the father’s name appears on the birth records, whether there were any protests or interventions by the Indian agent and/or the availability of vital statistics records. Thousands of descendants of Indian women who married out are excluded, as are the children of mothers who did not or could not state paternity. Many adoptees (those forced to attend residential schools or stolen from their families during the Sixties’ Scoop, when social workers removed Indigenous children from their families to be adopted by non-Indigenous families) also have difficulty establishing Indian status.
All of these cases disproportionately affect the descendants of Indian women versus Indian men. Despite the fact that the Indian Act has been amended many times, the old gender discriminatory provisions related to Indian status are still applied as against all of the applicant’s birth line. The result is that there are thousands of Indigenous peoples who are denied Indian status.
Why does this matter? The membership codes for the majority of First Nations in Canada (also referred to as Indian bands) are still under the Indian Act rules, which mandate that only “Indians” can be included as band members. Membership determines who can live on a reserve with their families and community members. It determines who can run or vote for their community’s political leadership. It stipulates who can access funding for education, health care and other essential programs and services. These are vital services for many First Nations who are already at the lowest end of the socio-economic spectrum.
The high level of non-registered (non-status) Indians due to these discriminatory exclusions means that one can marry someone who is culturally native, but still have children who are not considered Indians.
There is a long-term effect of this type of legislation: that every single First Nation in Canada effectively has an extinction date, a day when that Nation’s last registered Indian is born. This is a looming reality for some First Nations, who face legislated extinction in 50 years or less.
No more status Indians means no more band members. No more band members means no more Indian band. This means that the band’s land, resources and assets would revert back to the federal and/or provincial governments. It is therefore in the government’s own self-interest to legislate Indians out of existence.
However, this legislation, and the negative impact it has had on First Nations, is not in line with Canada’s domestic or international human rights obligations. Nor does it reflect modern science and research in relation to genetics, biology or culture. The pseudo-sciences of eugenics and phrenology, which tried to identify races based on arbitrary biological traits like hair and skin colour, have been long been debunked. Canada remains the only country left in the world to legislate the identity of Indigenous peoples on the racist concept of blood quantum.
It’s time Canada abandoned its racist ideologies about Indigenous identity and recognized the right of Indigenous Nations to determine their own identities based on their own laws, traditions and cultures. If we truly are to move forward in a spirit of truth and reconciliation as recommended by the Truth and Reconciliation Commission, we need to reject Canada’s blood fiction for good.
Pam Palmater is a Mi’kmaw lawyer and member of Eel River Bar First Nation in northern New Brunswick. She also an author, social justice activist and Chair in Indigenous Governance at Ryerson University in Toronto.