Legislated Oppression: Racism, Patriarchy and Colonialism in the Status Provisions of the Indian Act

Abstract

The status provisions of the Indian Act have, since its passage in 1874, endeavoured to define who is and who is not an Indian. The foundation of this status regime has been based on European conceptions of racial and cultural superiority as well as patriarchy. By defining, through legislation, what qualifies people to be Indian the colonial state has caused divisions within First Nations communities and among First Nations people. Through an examination of the different amendments to the status provisions and enfranchisement measures within the different iterations of the Indian Act, this paper makes the case that the current system, even following amendments in 1985 which were meant to bring the status regime in line with The Charter of Rights and Freedoms, maintains the patriarchal, racist and colonial foundation. Further examination of legal challenges to the status provisions of the Indian Act under both Canadian and international law will show that even following the 1985 amendments and the 2011 amendments, the status regime imposed via the Act remains foundationally discriminatory. Using post-colonial theory this paper defines the imposition of the status regime as racist, sexist and Eurocentric and discusses the negative effects that regime has on the colonized peoples of Canada as well as on the colonizers who impose the regime. Finally, this paper will propose a process by which the status regime can be ended and replaced by system of First Nations citizenship that is determined by First Nations, is based on customs and traditions, but also lives up to internationally accepted human rights standards.