Sex Discrimination, Assimilation, and Austerity: The Untold Story of Canada’s Indian Act, 1975-1985

This article is about the misunderstood history of a Canadian law for determining Indian status, the decades-long struggle to remedy sex discrimination in the law, and the significance of judges writing history. Since before Canada’s confederation until amendments to the Indian Act in 1985, Indian women, unlike Indian men, lost their Indian status if they married non-Indians. Even with the 1985 amendments, the law still disadvantaged people who traced their Indian status along the female line. Facing a challenge to the law based on sex discrimination, the government argued that the enduring disadvantage to women was the only way to reconcile the equality rights of Indigenous women and the self-governance rights of Indigenous communities. The government’s account of the legislation’s history has been widely accepted by scholars and confirmed in case law. Through scrutiny of newly declassified government records, this article refutes the government’s claim that the 1985 Indian Act amendments were the product of a necessary compromise between competing Indigenous rights claims. Rather, the government used controversies it had provoked about Indigenous self-governance to obscure a legislative objective shared by both Liberal and Conservative governments: to minimize the number of status Indians and thereby shrink the population entitled to federal benefits, weaken Indigenous land claims, and ultimately undermine Indigenous self-governance.