The Indian Act defines who is eligible to be considered an Indian1 for purposes of federal programs and services in Canada. Numerous successful court challenges have resulted in changes to the Act over the last 15 years. More changes are coming.
If passed into law, Bill S-2 will eliminate the discrimination faced by those who were forced to give up Indian status in exchange for basic rights enjoyed by other Canadians. This process was called enfranchisement. The Bill is currently being considered by a Senate Committee.
These changes will have impacts for First Nation individuals, families and communities.
Registration under the Indian Act
Under the Indian Act, an Indian is a person who either has or is entitled to have their name included on Canada’s Indian registry. Being registered as an Indian is sometimes referred to as having status.
Registered Indians are entitled to certain federal programs and services.
Until 1985, being a status Indian also meant being recognized as a member of a First Nation with the right to live on reserve. Since 1985, First Nations can take back control over membership by adopting their own membership laws. As a result, depending on the First Nation, having Indian status may no longer guarantee membership.
Enfranchisement and Its Ongoing Effects
Before 1985, First Nations people who wanted to exercise basic rights enjoyed by other Canadians – to own lands, vote in federal elections, or become doctors or lawyers – were forced to give up their status. This was referred to as enfranchisement.
Enfranchised individuals also lost the right to be recognized as members of their community and to live on reserve.
There was never any question that this was racist. In 2018, the Supreme Court of Canada described enfranchisement as “a discriminatory policy aimed at eradicating Aboriginal culture and assimilating Aboriginal peoples.”2
Because of changes made to the Indian Act in 1985, individuals can no longer be enfranchised and women who lost status because they married a non-Indigenous or non-status man (a specific type of enfranchisement referred to as “marrying out") regained their Indian status. But those individuals the federal government considers to have "voluntarily" enfranchised, and their descendants, continue to be discriminated against because of two categories of registration introduced in 1985.
Sections 6(1) and 6(2) and the Second-Generation Cut-Off
Sections 6(1) and 6(2) of the Indian Act work in this way:
A person who has two parents entitled to be registered under the Indian Act is entitled to be registered under s. 6(1) and can pass Indian status down to their children;
A person who has only one parent entitled to be registered, will be registered under s. 6(2), and may or may not be able to pass Indian status down to their children depending on who they have a child with; and
A person with s. 6(2) status can only pass down Indian status to a child if that child’s other parent also has Indian status.
This leads to what has become known as the second-generation cut-off. After two consecutive generations of parenting by registered Indians with non-registered or non-status persons, the third generation loses the right to registered Indian status.
If left unchanged, this cut-off will significantly reduce the status Indian population in Canada. Within the next few generations, there will be many children born to a First Nation parent who will not be entitled to status under the Act. One Senator has called this cut-off a “bureaucratic extinction formula."3
What to watch for
Bill S-2 was introduced in the Senate in May 2025. It is a response to litigation filed in British Columbia in 2021 (Nicholas).4 If passed, the Bill will restore eligibility for registration to enfranchised individuals and their direct descendants. The BC Supreme Court has given Canada until April 30, 2026, to enact these changes.
Unfortunately, as drafted, Bill S-2 does not address the second-generation cut-off. Witnesses before the Senate Committee have called on Senators to make further necessary amendments now to avoid further delays in addressing these serious concerns.
Canada is engaging affected individuals and First Nation communities through a Collaborative Process on the Second-Generation Cut-Off and Section 10 Voting Thresholds.5 Through this process, Canada seeks input from First Nations on how to resolve the issues associated with the second-generation cut-off. Canada has committed to introducing further amendments to the Indian Act next year. However, many witnesses before the Senate Committee testified that these issues are critical and further delay is unacceptable. Bill S-2 should be amended to include changes to the second-generation cut-off.
Canada has acknowledged that the Indian Act “was a tool for the wholesale erasure of languages, cultures, and beliefs” that has “robbed First Nations Peoples of their identity.”6 Through costly litigation, the courts have slowly helped to unravel the complicated web of problems created by the registration provisions of the Indian Act. The time has come for Canada to finally recognize that it should never have been involved in making decisions about who was entitled to membership in First Nations communities. As UNDRIP confirms, that was a right that always belonged to those communities.
1 As problematic and outdated the term “Indian” is, it has specific legal significance under the Indian Act. We use this terminology only to the extent necessary to explain the legal concepts discussed. Wherever possible, we instead use the term First Nations or Indigenous people to refer to people of First Nations ancestry.
2 Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at para 5.
3 Senator David Arnot, Second Reading of Bill S-2 in the Senate, Sitting 11, June 16, 2025.
4 Nicholas v Attorney General (Canada), 2025 BCSC 1596. Notice of Civil Claim.
5 More information on this process can be found here.
6 Proceedings of the Senate Standing Committee on Indigenous Peoples, September 24, 2025.
Patricia Lawrence is partner at First Peoples Law LLP. Patricia completed her Master of Law at the University of Auckland in New Zealand.
Contact Patricia and connect with her on LinkedIn.
First Peoples Law is a law firm dedicated to defending and advancing the rights of Indigenous Peoples in Canada. We work closely with First Nations to defend their Aboriginal title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their members.
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