UC Berkeley

This dissertation is a history of an idea, a retelling of a simple story about an idea as a complicated one, and an explanation of the effects of believing the simple story. From 1869 to 1985, to be an Indian in the eyes of the Canadian state – to be a “status Indian” – a person had to have a status Indian father. The Canadian government registered a population of Indigenous people as status Indians and decided that Indian status passed along the male line. If an Indian man married a non-Indian woman, his wife gained status and their children were status Indians. In contrast, if a status Indian woman married a non-Indian man, she lost her Indian status, and her children were not status Indians. This rule exiled women from their families of birth and tore them from the political fabric of their communities. The Indian status system is a keystone in Canada’s colonizing governance of Indigenous life. The rules in the Indian Act for the transmission of Indian status came under heavy criticism and, in 1985, the federal government amended the law. Because the 1985 amendments perpetuated sex discrimination by conferring an advantage to those who traced Indian status along the male line, the rules for Indian status were the object of decades of subsequent campaigning and litigation. In 2008 and 2015, landmark judgments in McIvor and Descheneaux declared the rules to be in breach of the gender equality guarantees in Canada’s Charter of Rights and Freedoms.

In overturning the Indian Act’s status rules, the courts have relied on the government’s explanation of the history of these rules. The legislative history told by the government mirrors commonly held views about the history of the 1985 amendments to the Indian Act. According to this canonical history, the core explanation for the Indian Act amendments is a tension between individual rights to gender equality and collective rights to Indigenous self-governance, embodied in a conflict between Indigenous women and Indigenous communities (often represented by male Indigenous leaders). According to the canonical history, the opposition between these groups yielded an intractable political stalemate – a Gordian political knot that could only be sliced by the equality rights offered in constitutional and international human rights law.

This dissertation unseats the canonical history by advancing an alternative account, one with both a wider aperture on the political and social context and a sharper focus on detail, complexity, and contingency. The dissertation asks how individual equality rights and Indigenous self-governance became juxtaposed to one another in a relationship of tension and dichotomous opposition and explains the discursive, political, and social forces that came together to create this idea of opposition. It situates the history of the Indian Act amendments in the context of negotiations for the re-founding of Canadian sovereignty and the passage of the Charter of Rights and Freedoms, Indigenous demands for recognition as a third order of government in Canada’s federal state, changing understandings of equality in Canadian law, and shifts in the categorization of the problem of Indian women’s loss of status as a political, social, or cultural problem. It traces the role of Indigenous political organizations, Indigenous women’s political organizations, and the white-led women’s movement in shaping the debate. It tracks how an issue transformed from a political problem into a question of fundamental rights.

Debates about amending the Indian Act showed a consensus among Indigenous people about the importance of Indigenous self-governance and the need to end sex discrimination in the Indian Act. Conflict among Indigenous groups arose about the mechanisms for recognizing Indigenous self-governance and the definition of self-governing polities. Rather than a pitched battle among Indigenous people, the central threads running throughout the history of reforms to the Indian Act are the federal government’s steadfast refusal to recognize inherent Indigenous self-governance and a desire to limit government spending on status Indians, all in service of a project of constructing and defending Canadian sovereignty. The dissertation exposes the government’s share of responsibility in creating a conflict between gender equality rights and Indigenous self-governance. It reveals the law’s hand in shaping the discourses of rights through which this idea of tension became articulated, labeling those rights as fundamental, pitting those rights against one another as intrinsically opposed, and then balancing them in the name of justice and fairness.

In contemporary litigation over the Indian Act, the Canadian government deploys a story about competing interests of Indigenous women and Indigenous communities as a justification for continued discrimination in the Indian Act. In doing so, the government’s retelling of history omits its own active role in shaping and exacerbating the idea of a fundamental conflict of rights. This omission does more than distort history. Through this narration of a partial history and its repetition by the courts, the words uttered by the Canadian state aim to achieve a perfected, completed sovereignty, one that has already silenced the eruptive speech of rival sovereignties. The telling of history by the court tames the wilder moments of the past, when neither the possible nor the likely outcomes were clear. The dissertation aims to make the present readable as just one of many alternatives among the past’s futures.