National Day For Truth And Reconciliation

National Day For Truth And Reconciliation

National Day for Truth and Reconciliation is an opportunity for us to reflect on some of the darkest moments of our country’s history. It is not simply a day off from work or from school. It is a day of mourning. It is a day for us to reflect on the past and to advance the work that still needs to be done. Most importantly, it is a day to give a voice to those children who never came home from school, or who returned a shell of the child they once were.

This article is the first in a series which focuses on the lasting impacts of the Indian Act on Indigenous people in Canada. While the atrocities that occurred in Canada’s Residential School System are arguably the most horrific example, the Canadian government used many legal mechanisms to control and assimilate Indigenous people. One such example is “Enfranchisement” under the Indian Act.

The term “enfranchisement” is typically used in the context of freeing enslaved people from their enslavers, gaining a right or privilege (such as women’s suffrage), or gaining citizenship. Enfranchisement under the Indian Act was the process by which a status “Indian” would lose his or her status as an “Indian” and gain full Canadian citizenship. In essence, a status “Indian” was not deemed to be a full Canadian citizen until enfranchisement occurred. Enfranchisement existed under the Indian Act from 1857 until 1985.

A status “Indian” could become enfranchised in many ways. Until 1985, an “Indian” could apply for voluntary enfranchisement. If that person was deemed “capable of assuming the duties and responsibilities of citizenship”, the Governor in Council would enfranchise that person.

In other circumstances, enfranchisement occurred automatically. Between 1876 and 1920, a person would automatically lose their status as an “Indian” if that person obtained a university degree, became a doctor or a lawyer, or joined the clergy. First Nations men were required to be enfranchised to serve in the Canadian military. Furthermore, First Nations people with status as an “Indian” were unable to vote in elections until 1960, unless he or she became enfranchised as a “full” Canadian citizen.

One of the most marked examples of enfranchisement under the Indian Act was the enfranchisement of women. Beginning in 1876, any “Indian” woman who married a “non-Indian” man lost her status automatically. This lasted until 1985 when the federal government passed Bill C-31, an amendment to the Indian Act which allowed First Nations women to regain their status if they had lost it due to marriage. The purpose of this amendment was to reverse sex-based discrimination under the Indian Act and to align the provisions of the Indian Act with the equality rights protected under section 15 of the Charter of Rights and Freedoms.

The 1985 amendment created two categories of “status” under sections 6(1) and 6(2) of the Indian Act. Section 6(1) status is granted if both parents of an individual are eligible to be registered under the Indian Act. Section 6(2) status is granted if one parent is registered under section 6(1) and one parent is ineligible to obtain status. If one parent is eligible under section 6(2), that parent can only pass status on to their children if the other parent is eligible under section 6(1). This is known as the “Second Generation Cut-Off Rule.” Status is determined under these two categories to this day.

The Indian Act was amended in 2011 as a response to McIvor v. Canada. In that case, Sharon McIvor, who regained her status after the 1985 amendment, brought a claim against the federal government after it was discovered that her son was precluded from passing his status to his children due to the Second Generation Cut-Off Rule. If McIvor had a brother, her hypothetical brother’s children would not have the same issue given the wording of the legislation. McIvor argued that section 6 of the Indian Act was discriminatory, as her family was excluded from traditional hunting, fishing and gathering practices, living on reserve, and receiving the same health and dental benefits available to those with status. McIvor was successful and the federal government subsequently amended section 6. The most recent amendments occurred in 2017 which eliminated further inequities to allow people with unknown paternity to register for status.

While National Day for Truth and Reconciliation is a day for us to reflect on the legacy of residential schools first and foremost, we must remember that the Indian Act has affected Indigenous peoples in many ways. Those effects have had lasting impacts on Indigenous people and those impacts continue to this day. Enfranchisement is merely one example.

Sayre Potter, Articling Student