Protesting Mistakes: Gender and Culture in the Review of Indian Register Decisions

The convoluted and confusing pathways to “Indian” status under the Indian Act are made even more difficult by the lack of clarity many people experience in decisions on their applications for status. Indigenous women face disproportionate hurdles when challenging Indigenous and Northern Affairs Canada (INAC) decisions because they are some of the most marginalized people in Canada and are often tasked with amassing genealogical evidence and navigating complex administrative processes to ensure their children have access to services in their community.

The Registrar is the INAC officer responsible for maintaining the Indian Register and Band Lists and making determinations on status applications.

When the Registrar makes the wrong call on “Indian” status, the Act provides an opportunity to challenge those decisions – but the clock is ticking.

If an individual is denied status or granted the wrong category of status as a result of a mistake by the Registrar, that person or their representative can “protest” that decision (Section 14.2 Indian Act). This protest, however, must be made within three years of the decision and the Individual has the responsibility of proving that the decision is wrong.

Once a protest is made, the Register must conduct an investigation and make a decision. If the individual disagrees with the decision on the Protest, they have a window of only six months to appeal the decision in court.

Indigenous peoples in Canada face widespread discrimination as well as socio-economic disadvantage. The complex and often discriminatory processes for applying for status under the Act creates unnecessary and additional challenges for Indigenous peoples to gain access to the housing and services to which they are entitled.

Indigenous women are disproportionately burdened by the complexities of the registration processes as they are often the parent that assumes the responsibility of acquiring status for the children.

Understanding the complex and convoluted pathways to status under the Act requires a great deal of research and energy. Challenging decisions of the Registrar on the accuracy of these decisions requires significantly more time and energy and appealing Protest decisions in court almost certainly requires the costly services of a lawyer.

While the there technically exists legislative mechanisms for challenging the correctness of the Registrar’s decisions, asking some of the most marginalized people in society to navigate these complex, non-Indigenous procedures is insensitive and arduous.

The Protest and appeal processes for challenging these decisions should consider the social, cultural and gender realities of the persons and families affected by these decisions. When Indigenous women and their children are denied their status on the basis of convoluted and illegible legislation they, at the very least, deserve access to a just and accessible review process.

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