The Indian Act is Canadian legislation that regulates and governs many aspects of Indigenous lives, and in matters relating to Indian status, bands and reserves. It also defines who is considered an “Indian” in the eyes of the federal government. Under the 1876 Indian Act, an Indian was defined as any male of “Indian blood” reputed to belong to a particular band; any child of such person; and any woman married to him. In contrast to traditional ways of determining membership in Indigenous societies based on allegiances to a group, and a shared way of life and historical association with a land base, the notion of “blood quantum” underlying the definition of who constitutes an Indian in the Indian Act gave rise to the racist notions of “pure blood” and “half breed” Indians that continue to exist in various manifestations today. Its focus on establishing patrilineality also gave rise to particular forms of discrimination against Indigenous women. In its purpose, this legislation worked to achieve the various goals of Indian policy; that is, to undermine Indigenous connections to the land and to limit those to whom federal obligations were owed. It was also in keeping with the larger goal of assimilation. While not explicitly motivated by eugenic ideology, it shared with eugenics the tendency of reducing people and their social traits to biological or racial characteristics, and the common objective of “breeding” out undesirable populations, in this case, through legislative extinction.
As the original occupants of the land, Indigenous peoples obstructed settler colonial claims to the territory needed for the formation of Canada. The responsibilities that settler society acquired through treaties with Indigenous peoples, and the obligations owed to those who had served as military allies to the Crown in competing wars for North American territories made the continued presence of Indigenous peoples an encumbrance to the colonial project. The ultimate goals of Indian policy in Canada became those of containing and fully assimilating Aboriginal peoples into Canadian society in order to reduce these obligations and settle the land question for good. Various methods were employed by the Canadian government to these ends. One of these was to establish the Indian Act, which sought to control virtually every aspect of life for Indigenous peoples in order to promote assimilation. It also bureaucratically defined who would be considered an Indian in the eyes of the federal government by relying on racialized notions of what constitutes an Indigenous person as determined by their patrilineal heritage.
Although equally racist in its definition of a people based on notions of blood quantum, this legislation worked in direct contrast to the eugenically motivated “one drop rule” which specified that a single drop of “bad blood” made a person a member of an inferior group who risked contributing to the degeneration of the race through reproduction. For an Aboriginal person to be considered an Indian in the eyes of the federal government and for this person to be able to transfer this identity to future generations, one drop was not enough. Although notions of blood quantum were implicit here, the legislation was concerned with whether a person could prove a patrilineal connection to a male of Indian descent. While settler women who married Indian men could be considered Indians under the Indian Act, Indigenous women were denied such status if they married a non-Indian.
The definition of an Indian under the 1876 Indian Act was central in undermining land relations within Aboriginal societies which were often directly tied to the female line by transferring this property to Indian men. Under the Indian Act, upon marriage a woman was reassigned to the band of her husband and only men could own property. If an Aboriginal woman married someone other than another Indian man, she would cease to be an Indian in the eyes of the Canadian government and would generally no longer have a right to live on reserve land or take part in the life of the community, nor would she be able to transfer this connection to future generations. Aboriginal women could not be considered Indians on their own accord, but only if they were married to such men. For this reason, in addition to its racism and paternalism, the Indian Act is also said to be a sexist piece of legislation.
This legislation was in keeping with federal goals of assimilation and of reducing the number of those to whom obligations were due. The statement made by an unnamed official to the Joint Committee on Indian Affairs, during its 1946-1948 Parliamentary hearings on the Indian Act, makes plain the purpose of defining Indians as government did under the Act. As quoted in the Royal Commission on Aboriginal Peoples, the official stated:
…by the alteration of the definition of Indian by the Statute of 1876 the Dominion very substantially reduced the number of people for whose welfare it was responsible… who, but for that statute of 1876, would have been federal responsibility for all time. (Canada 1996, 280)
Not unlike the ways that eugenics has been employed to justify cost effective but coercive measures aimed reducing the number of those “undesirables” who were considered a burden to the state, the definition of an Indian under the Indian Act met political and economic objectives, and targeted women in specific ways. It also had significant consequences. By 1985, this status provision had rendered landless nearly two thirds of all Aboriginal peoples.
The longstanding discrimination against Indian women through what would become known as section 12 (1) (b) under the 1951 Indian Act led to a longstanding struggle by women to regain their status and ensure it could be passed on to their children. These struggles eventually resulted in the repeal of the above mentioned discriminatory clause. Through Bill C-31, in 1985, many individual women who had previously lost their status by marrying a “non-Indian” could apply to have this status reinstated, although reinstatement of status was not always certain and neither did it always result in re-acceptance within the community. Federal amendments made to the Indian Act in 1985 also created further divisions through the existence of what are commonly know as 6 (1) and 6 (2) status Indians. Generally, a person is registered as a 6 (1) status Indian if they were also entitled to status prior to 1985, or if both of their parents are status Indians. This person can also pass Indian status on to their children. Generally, a person is registered as a section 6 (2) status Indian if one of their parents, male or female, is entitled to be registered as a status Indian. Although a person registered under section 6 (2) has Indian status, this status cannot be passed on to a child unless the other parent also has status. These new rules have created what is known as a “second generation cut off”, or the delay in termination of status by one generation. This means that although the status of some women has been reinstated, the discrimination they experienced continues if their descendants marry someone without status, something that is increasingly a common occurrence as many Indigenous peoples form relationships and have children with non-Indians or non-status Indians. Although these subsections were recently re-examined by the British Columbia Supreme Court system as a result of a case lodged by Sharon McIvor, and this has led to the inclusion of an additional section, 6 (3), which has allowed some of the children or grandchildren of those who had previously been denied status as a result of pre-1985 provisions to gain status. However, as is obvious here, the situation remains complicated. Even though bands have now been allowed the right to determine their own membership codes within communities if they so chose, the Indian Act status provisions continue exist and to create divisions in communities by allowing government to dictate who is considered an Indian based on bureaucratic and racist notions of who belongs. It also continues to serve the goals of Indian policy by reducing the number of those to whom the federal government has obligations. This has led critics to point out that the sexism, racism and paternalism of this piece of legislation in modern form continues to constitute a form of legislative extinction.
The approach of the Canadian government to defining Indian status based on patrilineality differs somewhat from that taken in the United States. Here, despite the gender neutrality of imposed identity regulations, these were explicitly race-based. Indianness based on blood quantum calculations as determined by one’s ancestry has led to various fractions of Indianness depending on one’s pedigree (1/2, 1/4, 1/8… 1/128, 1/256, etc). However, here too, attempts to govern Native identity were crucial to the acquisition of lands. And neither of these two systems were traditional ways of establishing who or what it means to be an Indigenous person based on Indigenous laws, customs or worldviews. Because of this, Bonita Lawrence points out that the very existence of settler society was/is predicated on maintaining racial apartheid and emphasizing racial difference, or white superiority and “Native” inferiority. She argues that because the loss of Indian status quite often also entails the loss of culture due to an alienation from community, this can be considered a case of genocide.
Not unlike eugenic ideology that has so often reduced what are social phenomena to some sort of racial or biological characteristic, state attempts to regulate Indigenous identity have imposed an understanding of Indigeneity, whether rooted in Western notions of blood quantum and/or patrilineality, that is divorced from its social meaning — identity based in a culture or way of life, tied to a place, a historical connection to land and a broader community. The attempt by government to regulate Indigenous identity in this way also leads to similar ends as those aspired to by the eugenics movement in its quest to breed out undesirable or burdensome populations. That is, the undermining of Indigenous connections to the land and a reduction in the number of those considered Indian.
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