statutory-history-of-indian-act-registration.html.pm

#lang pollen

◊define-meta[page-title]{◊@{Statutory History of Eligibility for Registration (Status) under the ◊em{Indian Act}}}
◊define-meta[short-title]{◊@{◊em{Indian Act} Status (History)}}
◊define-meta[original-date]{2021-05-02}
◊define-meta[edited-date]{2022-10-28}
◊define-meta[snippet]{Amendments to the Indian Act’s registration (status) rules since 1951.}

◊declare-work[#:id "Hele" #:type "legal-case" #:title "Hele v Attorney
General of Canada" #:citation "2020 QCCS 2406" #:url
"https://canlii.ca/t/j8zvm"]

◊declare-work[#:id "Indian Act" #:type "statute" #:title "Indian Act"
#:volume "RSC" #:year "1985" #:chapter "I-5" #:url
"https://laws-lois.justice.gc.ca/eng/acts/i-5/FullText.html"]

◊declare-work[#:id "McIvor" #:type "legal-case" #:title "McIvor v
Canada (Registrar of Indian and Northern Affairs)" #:citation "2009
BCCA 153" #:url "https://canlii.ca/t/230zn"]

◊declare-work[#:id "Descheneaux" #:type "legal-case" #:title
"Descheneaux c Canada (Procureur Général)" #:citation "2015 QCCS 3555"
#:url "https://canlii.ca/t/glzhm"]

◊declare-work[#:id "TRC1" #:type "custom" #:custom-format "*The Final
Report of the Truth and Reconcillation Commission of Canada*, vol 1
(Ottawa, 2015)" #:short-form "TRC, Volume 1"]

◊declare-work[#:id "MMIWG1" #:type "custom" #:custom-format
"*Reclaiming Power and Place: The Final Report of the National Inquiry
into Missing and Murdered Indigenous Women and Girls*, vol 1a (2019)"
#:short-form "MMIWG, Volume 1a"]

◊declare-work[#:id "JFK" #:type "magazine/news" #:title "The Problem
with Indian Status, Part 1: So Who Gets Status Anyway?" #:author
"Claire Truesdale" #:date "10 July 2015" #:publication "JFK Law
Corporation" #:url
"https://jfklaw.ca/the-problem-with-indian-status-part-1-so-who-gets-status-anyway/"]

At the end of this post, I provide links to versions of the ◊em{Indian
Act}’s registration rules since 1951.◊note{◊cite["Indian Act"
#:pinpoint "ss 6, 7"] In this short post, I cannot fully convey the
harmful effects the ◊em{Indian Act} has had on Indigenous peoples in
Canada. The ◊em{Indian Act} has been used as a tool of "aggressive
assimilation" (◊cite["TRC1" #:pinpoint "97" #:terminal ""]). It was a
"central element to the Canadian government's colonial policy"
(◊cite["TRC1" #:pinpoint "106" #:terminal ""]) and was used to
"undermine First Nations' self-government" (◊cite["TRC1" #:pinpoint
"107" #:terminal ""]). It has played a role in the trauma
disproportionally experienced by "Indigenous women, girls and
2SLGBTQIAA people" (see generally ◊cite["MMIWG1" #:pinpoint "249ff"
#:terminal ""]). Nevertheless, status has important practical
implications and is important to individuals for different reasons
(see ◊cite["JFK" #:terminal ""]).} Other than working through one
example to show the relevance of these rules, I do not attempt to
explain what the rules are or the details of any particular
amendment. I am still learning that myself. But I hope these statutory
references are a helpful starting point for others.

First, here is some background material that presents in broad strokes
how eligibility for registration has changed over the years.

◊itemize{

Assembly of First Nations, "[History of Registration After the Indian Act](https://www.afn.ca/wp-content/uploads/2020/01/09-19-02-06-AFN-Fact-Sheet-History-of-Registration-under-the-Indian-Act-revised.pdf)"

Crown-Indigenous Reglations and Northern Affairs Canada (CIRNAC), "[Background on Indian registration](https://www.rcaanc-cirnac.gc.ca/eng/1540405608208/1568898474141)"

}

These are good explanations. However, to really understand today's
status eligibility rules, you need to understand the statutory history
of the relevant sections of the ◊em{Indian Act}. Just look at some of
the language in today's Act: "Subject to section 7, a person is
entitled to be registered if ◊elide the name of that person was
omitted or deleted from the Indian Register ◊elide under subparagraph
12(1)(a)(iii) pursuant to an order made under subsection 109(1), as
each provision read immediately prior to April 17, 1985, or any former
provision of this Act relating to the same subject-matter as any of
those provisions."◊note-cite["Indian Act" #:pinpoint "s 6(1)(d)"]

I'll first explain a recent decision from the Superior Court of
Quebec, ◊em{Hele v. Attorney General of Canada}.◊note-cite["Hele"] The
takeaway is that in order to understand the paths to eligibility
◊em{today}, you need to understand the paths to ◊em{ineligibility}
from the past. The evolution of these rules can be difficult to
follow, so I have collected below the various versions that have
existed since 1951. The most important historical version for
application of today's eligibility requirements is the version that
existed immediately prior to April 17, 1985, but occasionally,
reference to even older versions will be necessary.

◊heading{◊em{Hele v. Attorney General of Canada}}

This case was about a father (Karl) trying to have his daughter
(Annora) registered under the ◊em{Indian Act}. Because there was no
evidence that Annora's mother was entitled to register, Annora's
eligibility turned on whether Karl was entitled to register under
s. 6(1) or under s. 6(2).

If Karl was entitled under s. 6(1), then Annora would be entitled to
register under s. 6(2). If Karl was entitled under s. 6(2), then
Annora would ◊em{not} be entitled to registration. This is because of
the "second-generation cutoff" built into the operation of ss. 6(1)
and 6(2).

◊fig[#:src "assets/hele.png"]

So what determined whether Karl was entitled under s. 6(1) or under
s. 6(2)? That depended on his mother Margaret's path to
re-entitlement.

Karl's mother, Margaret, had purportedly "voluntarily enfranchised"
(gave up her status) in 1965 via s. 109(1). She later married a
"non-Indian Canadian" in 1969. If Margaret's voluntary enfranchisement
in 1965 was effective, then she would have become re-entitled to
registration through s. 6(1)(d) [re-entitlement after voluntary
enfranchisement]. If, however, Margaret was never able to voluntarily
enfranchise (this was the argument Karl was making), she would have
instead lost her eligibility by "marrying out" in 1969 and then would
have become re-entitled through s. 6(1)(c)◊note{Today, this is
s. 6(1)(a.1).}  [re-entitlement after marrying out]. This difference
is significant because if Margaret became re-entitled through
s. 6(1)(c),◊note{Today, s. 6(1)(a.1).} then Karl ◊em{would} be
entitled under s. 6(1).◊note{Specifically, s. 6(1)(c.1), at the time
of Karl's application, or today, s. 6(1)(a.3)(i).} If instead Margaret
became re-entitled through s. 6(1)(d) [re-entitlement after voluntary
enfranchisement], Karl would have only been entitled himself through
s. 6(2).

Judge Barin, after an intensive exercise of statutory interpretation,
concluded that voluntary enfranchisement was not available to Margaret
in 1965. The Governor in Council did not have "the power to
enfranchise unmarried Indian women." Thus, instead of voluntarily
enfranchising in 1965, Margaret lost her status in 1969 when she
married out. She thus regained eligibility through
s. 6(1)(c).◊note{Today, s. 6(1)(a.1).} So, Karl is eligible under
s. 6(1) and Annora under s. 6(2).

You can see that in order to understand this decision, I needed to
refer to the ◊em{Indian Act} as it existed prior to 2017 (when Karl
had applied) and prior to 1985. The point of this blog post is to make
that research easier for you by linking directly to the historic acts
and amendments since 1951 that affect the registration eligibility
rules.

◊heading{Statutory History [◊a[#:id "history" #:href "#history"]{direct link}]}

There are many more amendments to the ◊em{Indian Act} than I list
below. These are only those since 1951 that affected the registration
eligibility (status) rules.

◊itemize{

◊a[#:href "assets/Indian-Act/SC_1951_(15_George_VI)_c_29.pdf"]{SC 1951
(15 George VI), c 29}.

◊a[#:href "assets/Indian-Act/RSC_1952_c_149.pdf"]{RSC 1952, c 149}.

◊a[#:href "assets/Indian-Act/SC_1956_c_40.pdf"]{SC 1956, c 40}.

◊a[#:href "assets/Indian-Act/SC_1958_c_19.pdf"]{SC 1958, c 19}.

◊a[#:href "assets/Indian-Act/RSC_1970_c_I-6.pdf"]{RSC 1970, c
I-6}. This is the version to consult when the current Act refers to
s. 12 or s. 109 as they read immediately prior to April 17, 1985.

◊a[#:href "assets/Indian-Act/RSC_1985_c_I-5.pdf"]{RSC 1985, c
I-5}. This was basically a restatement of the Act as it was in force
previously as part of the [consolidation
process](https://en.wikipedia.org/wiki/Statutes_of_Canada).

◊a[#:href "assets/Indian-Act/RSC_1985_c_32_(1st_Supp).pdf"]{RSC 1985,
c 32 (1st Supp), s 4}. This contains the substantive amendments to the
eligibility/ineligibility provisions and moved them from ss. 11 and 12
to ss. 6 and 7. It also repealed s. 109 (enfranchisement).

◊a[#:href "assets/Indian-Act/RSC_1985_c_43_(4th_Supp).pdf"]{RSC 1985,
c 43 (4th Supp), s 1}. Slight amendment relating to deceased
persons.

}


The Department of Justice allows you to browse the Act as it was in
force at any point in time from 2002 onward:
<[laws-lois.justice.gc.ca/eng/acts/i-5/PITIndex.html](https://laws-lois.justice.gc.ca/eng/acts/i-5/PITIndex.html)>. But
I'll still link to the two post-2002 amendments to the registration
rules next.

◊itemize{

SC 2010, c 18
([html](https://laws-lois.justice.gc.ca/eng/annualstatutes/2010_18/FullText.html);
[pdf](https://laws-lois.justice.gc.ca/PDF/2010_18.pdf)). This was Bill
C-3, in response to ◊em{McIvor v. Canada}.◊note-see["McIvor"]

SC 2017, c 25
([html](https://laws-lois.justice.gc.ca/eng/annualstatutes/2017_25/FullText.html);
[pdf](https://laws-lois.justice.gc.ca/PDF/2017_25.pdf)). This was Bill
S-3, in response to ◊em{Descheneaux
c. Canada}.◊note-see["Descheneaux"]

}

◊heading{Doing Your Own Research}

If you want to do your own research into statutory history, you can
find [Revised Statutes of
Canada](https://en.wikipedia.org/wiki/Statutes_of_Canada) through
HeinOnline's database called "Revised Statutes of Canada." Your
library might subscribe to that. If you're at UBC, here's the [direct
link](https://heinonline-org.ezproxy.library.ubc.ca/HOL/Index?index=castatutes/rdtutda&collection=castatutes).

And you can find the yearly statutes in a database called "Annual
Statutes." Here's the [direct
link](https://heinonline-org.ezproxy.library.ubc.ca/HOL/Index?collection=caotp)
for those at UBC.

If you are aware of more readily available sources, please link them
in the comments!