Who is Indian under the Indian Act?

The definition has changed and evolved over the years. Since who can be registered today directly relates to previous definitions of Indian in the Indian Act, these are key in understanding what is means now. 

The first Indian Act defined Indian as:

• any male person of Indian blood reputed to belong to a band (a group of Indians who the government holds land or money for)
• any child of that person
• the wife of that person

Women, include in this defintion of Indian, were excluded f they married someone who was not an Indian under the Act and their children were included too. This definition stayed in place until 1951 when the Indian Register was created. It also defined 'person' as someone who was not registered under the Act. This was also in place until 1951. Up until this time someone defined as an Indian could only become a person by being enfranchised.

The Government of Canada has an Indian Register that lists everyone who is or could be registered as an Indian. The first Indian Register was created in 1951. The names on this came from lists of members of First Nations which were kept by Indian Agents for over 100 years. Indian agents gave First Nation people European names when they were creating these lists because they could not pronounce or spell their names.

Those lists excluded anyone who was not listed by the Indian Agent in their area for any reason and Indian Agents had complete control over whether someone was included or not. They were incomplete and inaccurate for many reasons, from people being away from their community at the time the list was made to Indian Agents’ lack of understanding of who the community considered to be members of that community. The lists continued to exclude women who were no longer defined as Indian because they married someone who was not defined as Indian as well as their children and include non-Indigenous women who were married to someone on the register.

Once the Register was created, whether you could be added to the Register depended on your being related to someone on the Register. Up until 1985, this was based on the western concept of descent through the male line from someone on the Register.

A woman ceased to be an Indian under these laws if she married someone who was not defined as an Indian. Her children and their descendants were also not Indian under these laws. Many thousands of women and children lost their status as Indians under Act during the time this rule was in place.

At the same time, a woman who was not an Indian became Indian under the Indian Act when she married someone defined as an Indian. Coming under the Indian Act solely by marriage was limited starting in 1951. This is when the double mother rule was introduced. If someone’s mother and grandmother both became Indian by marriage, they lost Indian status at the age of 21.

People who were part of a First Nation could also cease to be an Indian under the Act through enfranchisement. The word “enfranchise” means to give the rights of citizenship, especially the right to vote. If someone was enfranchised, they got the right to vote in Canadian elections, but that person also lost all their rights as a member of the First Nation.

At different times in the past, the Indian Act enfranchised members of First Nations communities without their agreement. For example, a person could be automatically enfranchised because they earned a university degree, became a doctor, lawyer or clergyman or served in the military. Enfranchisement excluded many members of First Nations and all their descendants from being Indians under the Indian Act.

Today, a person is entitled to be registered as an Indian under the Act if:

• they were registered or could have been before April 17, 1985
• both of their parents are registered or could be OR
• one of their parents is registered or could be with some exceptions explained below

Parents include someone who is your parent because they adopted you as a child. 

If both parents are registered or could be, a child is registered under 6(1) of the Indian Act. If only one parent is registered or could be, a child is registered under 6(2) of the Indian Act. In terms of the rights and benefits available to someone who is an Indian under the Act, it does not matter if they are registered under 6(1) or 6(2). But being registered under 6(2) means your child will not be able to be registered unless the other parent is also registered under 6(2) or 6(1). 

If the parents are:

• 6(1) and 6(1) the child is 6(1)
• 6(1) and 6(2) the child is 6(1)
• 6(2) and 6(2) the child is 6(1)
• 6(1) and not registered or entitled to be the child is 6(2)
• 6(2) and not registered or entitled to be the child cannot be registered under the Act.

Direct descendants of people who were excluded from being Indian in the past can also be entitled to be registered.

A person is entitled to be registered if their mother, grandmother, or great-grandmother lost their Indian status because they:

• married a non-Indian man before April 17, 1985 OR
• were born outside of marriage to an Indian father and a non-Indian mother between September 4, 1951 and April 16, 1985

A person is also entitled to be registered if one of their parents, grandparents or great-grandparents lost their Indian status because:

• their mother married a non-Indian man before April 17, 1985 OR
• their name was removed from the Indian Register or from a Band list because their father was not Indian