The Indian Act at 150 Years: Does Bill S-2 Signal a Turning Point?
Sneha Singal, Final-year law student at OP Jindal Global University, India.
The Indian Act (the “Act”), a Canadian federal statute enacted in 1876, governs the legal status of First Nations peoples and reserve lands, influencing the relationship between Indigenous communities and the Canadian state. The Act endeavoured to control and integrate First Nations into Euro-Canadian society (the dominant settler culture shaped by European colonial values) by limiting their rights, destroying their culture, and establishing an Indian status system that distinguished between legal identification and community engagement. The Indian Act was founded on colonial and paternalistic principles that treated Indigenous peoples as wards of the state rather than as self-governing nations. The Act weakened Indigenous self-government by consolidating power in the hands of the Federal Department of Indian Affairs and its agents, giving them broad authority over land resources and finances.
In addition to displacing traditional governance structures, the Indian Act imposed a series of oppressive policies on Indigenous communities. It mandated attendance at residential schools, which aimed to erase Indigenous languages and customs. The Act also restricted individuals from leaving reserves without official permission, imposed bans on alcohol, firearms, cultural practices and ceremonies, and prohibited Indigenous peoples from seeking legal representation for land claims. Collectively, these clauses curtailed Indigenous autonomy, increased reliance on external authorities, and contributed to seclusion and systematic isolation, jeopardizing subsequent generations’ ability to preserve their cultural heritage and self-identity.
The Act has been critiqued as “the most blatantly racist and colonial act of Parliament that is still actively used.”Although it has been amended several times, particularly in 1951 and 1985, the amendments introduced merely partial reforms and created new challenges. The 1951 reforms, which came in the context of growing international attention to human rights after World War II, lifted bans on ceremonies and land claims and granted women the right to vote in band council elections. However, the same reform delegated responsibility for child welfare to the provinces, which facilitated the “Sixties Scoop,” a devastating policy under which thousands of Indigenous children were forcibly removed from their families and placed in non-Indigenous foster homes, causing deep cultural and familial dislocation. The 1985 amendment,Bill C-31, redefined “Indian status” and restored it to many who had previously lost it, specifically women who had been stripped of their status upon marrying non-status men. However, the reform was partial and complex, leaving significant inequities in band membership and status inheritance, sparking continued criticism and protest within Indigenous communities, and serving as a clear example of sex discrimination embedded in the original Act. While both the 1951 and 1985 reforms addressed certain overtly discriminatory elements, they were piecemeal and reactive, leaving the colonial structure and paternal control of the Indian Act largely intact.
Bill S-2 – An Act to amend the Indian Act (new registration entitlements) (the “Bill”), introduced in May 2025, represents another legislative attempt by the Canadian government to address longstanding discrimination in the Indian Act’s registration provisions. The Bill introduces several important measures, including voluntary deregistration and the option for individuals to reaffiliate with their “natal First Nation,” the community into which they were originally born or to which they historically belonged. The Bill also removes outdated and offensive terminology and builds on the prior amendments, including Bill C-31 (1985) which addressed sex discrimination in the Indian Act. Subsequent reforms, such as Bill C-3 (2011), Bill S-3 (2017–2019), and the short-lived Bill C-38 (2022–2025), also attempted to rectify gaps and inequities in the registration system.
Although Bill S-2 represents a continuation of the federal government’s incremental approach to amending the Indian Act, questions persist about its effectiveness in achieving substantive equality. The Bill has been criticized for its limited scope, failure to deliver holistic reform, and inability to address deeper structural inequities. This article critically examines Bill S-2 by analyzing its legislative content, relevant case law, and implementation challenges. Further, it questions whether such piecemeal reforms genuinely redress colonial injustices or merely reinforce them under the pretence of reconciliation.
If enacted, Bill S-2 will address certain longstanding inequities of the Indian Act by introducing several key reforms, including equalization of status transmission for descendants of enfranchised individuals. In this context, “enfranchisement” refers to a historical assimilation policy where people lost or were required to give up their Indian status, often as a condition of gaining certain rights, such as the right to vote in Canadian elections or to integrate into non-Indigenous society. The Bill therefore seeks to ensure that the ability to pass on Indian status is applied more fairly, so that the descendants of individuals with a family history of enfranchisement, including unmarried women, are entitled to inherit status in the same way as descendants of those without such a history. The Canadian government estimates that these changes would allow approximately 3,500 individuals to gain eligibility for registration within the first five years.
The Bill also enables voluntary deregistration, allowing individuals who no longer wish to be recognized under the Indian Act to remove themselves from the official registry. In addition, the Bill supports the reaffiliation of women and their descendants with their natal First Nations. It also replaces offensive and outdated terminology, including terms referring to First Nations persons with disabilities, with more respectful language. While these measures are significant, they raise serious concerns about whether such amendments genuinely dismantle the colonial foundations of the Indian Act or simply refine and perpetuate the legitimacy of a system that many argue remains inherently problematic.
The stimulus behind Bill S-2 partly stems from litigation, notably Nicholas v Canada, in which the plaintiffs challenged certain provisions of the Indian Act under Section 15 of the Canadian Charter of Rights and Freedoms, which guarantees equality before the law. The plaintiffs argued that families with histories of enfranchisement were still treated differently from those without, highlighting ongoing inequities in the status registration system. Following this case, the Supreme Court of British Columbia granted Parliament multiple extensions to address these inequalities, most recently until April 2026. Bill S-2 is thus the legislative response to these court-mandated deadlines. While this judgment situates Bill S-2 not merely as a political choice but a legal necessity, it reveals the broader issue of a recurring pattern in the evolution of the Indian Act, where reforms are often driven by litigation rather than by proactive and collaborative policymaking. This means that systematic injustices within the Act are often corrected only after prolonged court battles, rather than through early and deliberate efforts by the state to rectify historical discrimination.
Since its introduction, Bill S-2 has drawn sharp criticism for its piecemeal approach to reforming a fundamentally colonial system rather than dismantling or reimagining the Indian Act. Instead of confronting the deeper question of why the state continues to control Indigenous identity and rethink Indigenous self-governance, the Bill makes limited adjustments that merely patch existing inequities in the registration and membership provisions of the Indian Act. Concerns about inadequate consultation reinforce this critique, as many First Nations insist that membership and belonging are matters for Indigenous communities to determine themselves, not Parliament.
Another major concern is that Bill S-2 fails to address systemic problems such as the “second generation cut-off” rule. This rule, introduced through the 1985 amendments (Bill C-31), denies Indian status to children whose parents and grandparents each inherited Indian status through only one registered parent. In effect, a person loses their right to registration after two successive generations of parenting with non-status individuals, resulting in the gradual erosion of Indigenous identity over time.
Similarly, the categorization in sections 6(1) and 6(2) of the Indian Act perpetuate unequal entitlements and artificial divisions. Individuals registered under section 6(1) can pass on their Indian status to their children regardless of their partner’s status, while those registered under section 6(2) can only do so if their partner also has Indian status. So, when a section 6(2) individual has a child with a non-status person, their child loses eligibility for registration altogether, and the lineage “cuts-off” here.
This shows how the current system continues to divide Indigenous families and restrict identity through colonial definitions rather than community recognition. By expanding registration without resolving these broader injustices, such as the ongoing use of colonial definitions of belonging and the entrenchment of hierarchical categories, Bill S-2 risks deepening existing divides rather than fostering substantive equity and self-determination.
Lastly, even if passed, Bill S-2 faces significant implementation challenges, raising doubts about whether it can be administered fairly or efficiently. The Canadian government continues to struggle with longstanding delays in processing status applications, a lack of transparency within the federal bureaucracy, and the limited administrative capacity of Indigenous Services Canada. These issues highlight the alienating and impersonal nature of the registration system in Canada.
More fundamentally, the Bill fails to address the core sovereignty question as to who has the authority to define Indigenous identity and community membership. Although many First Nations have developed their own membership codes, and treaties affirm Indigenous jurisdiction over citizenship, the Indian Act continues to vest ultimate control in the federal government. This framework undermines Indigenous self-determination and perpetuates colonial oversight. Furthermore, this approach contradicts Canada’s commitment under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which Canada has endorsed and pledged to implement through federal legislation. UNDRIP affirms that Indigenous peoples have the inherent right to determine their own identity, membership, and governance systems without any external interference. By maintaining state control over registration, Bill S-2 contradicts these international commitments and weakens Canada’s credibility in advancing true reconciliation.
Beyond administrative difficulties, the Canadian political environment itself further complicates the Bill’s prospects for meaningful reform. Given that Canada is currently governed by a minority government, passing Bill S-2 is contingent upon securing cross-party support. While issues concerning Indigenous rights often command broad moral consensus, legislative gridlock and shifting political priorities may delay or dilute the Bill’s implementation. Consequently, even well-intentioned reforms such as Bill S-2 risk being constrained by the fragility of the current parliamentary configuration.
In conclusion, even if passed, Bill S-2 only offers incremental relief by merely tweaking the Indian Act without challenging its colonial foundations. Like the 1951 and 1985 amendments, Bill S-2 addresses specific inequities but stops short of transformative change, as it does not challenge the Indian Act’s colonial framework, hierarchical status categories, or the federal government’s ultimate control over Indigenous identity and membership. True reform would require Indigenous-led membership frameworks, the dismantling of hierarchical status categories, and co-developed legislation that centres Indigenous laws and governance. By maintaining state control over identity, Bill S-2 risks perpetuating the very structures of colonial oversight it purports to reform. These critical shortcomings highlight the urgent need for sovereignty-centred and transformative approaches that place Indigenous laws and voices at the core of governance.