For decades, First Nations women have been fighting to prove their identity to Canada.

Due to sexist and discriminatory provisions in the Indian Act, legions of First Nations women and their children have lost Indian status (i.e. the legal status of a person who is registered under the Indian Act, a piece of federal legislation enacted in 1876 designed to assimilate and eventually eliminate First Nations). In addition to undermining their sense of identity, belonging and membership, losing status means they are cut off from a range of federal and provincial programs and services, banned from voting in band council elections and, in many cases, shunned from their own communities.

First Nations communities and Indigenous advocacy groups have provided a roadmap to ending gender discrimination in the Indian Act. Instead, the federal government has slapped together quick fixes that have only made matters worse. Without immediate government action, First Nations with status may become extinct, depriving future generations of all the rights and privileges conferred by this legal status

The Senate Committee on Aboriginal Peoples recently released a review of the federal government’s weak attempts at resolving gender discrimination in the Indian Act, including notable amendments in 1985, 2010 and 2017. The committee found that these amendments have only complicated the registration process and created two unequal classes of status Indians.

Before 1985, a First Nations woman who married a non-First Nations man would lose her status. But if a man with status married a non-First Nations woman, she would gain status. In an attempt to resolve this glaring inequity, the federal government amended the Indian Act in 1985 to restore status for women who had lost it through marriage.

However, this amendment also created two tiers of status for First Nations — those who have one parent with status and those who have two parents with status. The children of the one-parent category are disadvantaged because they alone cannot pass on status to the next generation. This is known as the “second generation cut-off.”

Many have sounded the alarm about this two-tiered system of status Indians.

Pamela Palmater, Chair in Indigenous Governance at Toronto Metropolitan University, said every First Nation in this country has a “legislated extinction date” that you can calculate based on their birth, death and the second generation cut-off provision of the Indian Act.

The 1996 Report of the Royal Commission on Aboriginal Peoples also warned that the number of status Indians “will likely decline drastically” and the UN Committee on the Elimination of Discrimination against Women has stated that the second generation cut-off provision is discriminatory.

As if the two-tiered system isn’t complicated enough, the federal government muddied the registration process in 2017 through Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général).

At the time, the government boasted that this amendment would allow “hundreds of thousands, or even millions” of new people to register for status. But our committee learned that just over 28,000 new people have registered as of April 2022.

This is due to a number of factors, including a massive backlog of applicants, and it also raises serious concerns about Indigenous Services Canada’s ability to effectively implement Bill S-3. It may also be a sign that the new registration provisions in the Indian Act are so confusing and inaccessible that many First Nations people are unaware they now qualify for status.

These amendments to the Indian Act are narrow, technical and fail to get at the root of ongoing gender discrimination issues. It’s also disappointing that the federal government has only adopted these amendments in response to court decisions, rather than taking a broad, comprehensive approach to rectify over 150 years of discrimination.

The federal government has said they will modify the Indian Act yet again to resolve these issues. But to truly ensure equality for First Nations women and their descendants, the federal government must repeal the second generation cut-off provision and overhaul the registration process.

First Nations women and their children also deserve a formal apology and compensation for the harms they have experienced because of discriminatory registration provisions in the Indian Act.

First Nations should decide who has status, not the federal government. It is time for Canada to finally end gender discrimination in the Indian Act, so that all First Nations women and their children can be welcomed home again and gain access to the rights and benefits they deserve.

Senator Sandra Lovelace Nicholas represents New Brunswick in the Senate. A Maliseet woman from the Tobique First Nation in New Brunswick, she was instrumental in lobbying for the 1985 legislation which reinstated the rights of First Nation women and their children in Canada. She retired from the Senate on January 31, 2023.

Senator Brian Francis represents Prince Edward Island in the Senate. He is the first person of Mi’kmaq descent to represent Prince Edward Island in the Upper Chamber and he serves as Chair of the Senate Committee on Aboriginal Peoples.

This article was originally published in the Charlottetown Guardian on July 15, 2022.