The never-ending effort to expand First Nation status

When the federal government introduced Bill S-2 into the Senate a year ago, it was largely a move to address concerns about individuals who’d been forced to give up their status under the Indian Act in exchange for owning land or voting. 

As the Supreme Court of British Columbia noted in a 2025 decision, this, in turn, affected their wives and children.

During deliberations by senators, the focus broadened to address some of the Act’s biggest inequities, specifically the second-generation cut-off, a rule introduced in 1985 that prevents status from being transferred to children if both parents do not have status for two generations.

“I grew up in a community on a reserve, I’m a status Indian,” says Nova Scotia Senator Paul Prosper, who moved the series of amendments to the bill. 

“The second-generation cut-off essentially means the extinction of a people, a community, just by virtue of the fact that of freely choosing of who they fall in love and have children with.”

Full or half status?

First Nations are the only Indigenous group in Canada where membership and status are defined by the federal government. A formula under the Indian Act determines if someone qualifies for status under section 6(1) or 6(2), which ultimately impacts their ability to pass on status to their children.

A person is deemed to hold full status under 6(1) and half status under 6(2). If someone registered under section 6(1) has a child with someone without status, the child can register under 6(2). However, if someone registered under section 6(2) has a child with a non-status person, that child cannot register under either section. Status can only be transferred to the child if the other parent is registered under 6(1) or 6(2).

A person loses their right to register under the Act after two consecutive generations of parenting with a person who is not entitled to registration themselves. This is what’s known as the second-generation cut-off.

Prosper, a Mi’kmaq lawyer and former chief of the Paqtnkek (Afton) Mi'kmaw Nation, says the number of 6(2) individuals is increasing, and their inability to pass status on to their children is raising concerns about the sustainability of First Nation communities.

In addition to the amendment to end the second-generation cut-off, he put forward three others, which were adopted. This included a one-parent rule so that a person could attain their status by tracing it back to a status parent, which would, in turn, confer status on their children in perpetuity. Another gave the government a year after royal assent to assist communities in making plans for those who have regained their status. 

Government ‘dragging its heels’

The amended bill is now in the House of Commons, being studied by the Standing Committee on Indigenous and Northern Affairs. It has the support of all four opposition parties, but the federal government says more consultations are needed before the law is amended, and the cut-off is removed.

Claire Truesdale, a partner with JFK Law LLP in Vancouver and a former chair of the CBA’s aboriginal law section, has doubts about Indigenous Services Minister Mandy Gull-Masty’s claims. 

“It feels a bit disingenuous to me to say you need to consult more when you’ve known about this for decades, and been consulting for two-and-a-half years,” she says, noting the federal government has known the cut-off is legally problematic since at least 2009.

There are real concerns that it’s not Charter-compliant, that it discriminates on the basis of race, family status, and gender in how it applies.

“It creates this form of blood quantum for Indian status that’s not connected to Indigenous communities’ own traditions or logic—it’s just arbitrary,” Truesdale says. 

The cut-off has a greater impact on the children of women with status, because if the father is not on the child’s birth certificate, they have more difficulties proving their child is entitled to status.

While there’s consensus among First Nations that it’s a problem, she says there is some disagreement about what should be done about it.

Patricia Lawrence, a partner with First Peoples Law in Ottawa, says a 2022 Senate committee report recognized the second-generation cut-off as urgent and gave the federal government a year to address it. The fact Ottawa is now using consultation as the excuse for dragging its heels is “hugely problematic.”

In an emailed statement, Minister Gull-Masty’s office said the second-generation cut-off is a critical and deeply personal issue that must be addressed appropriately.

“To be clear, it is not whether we will address it, but how,” a spokesperson said. 

“That’s why, in November 2023, the federal government launched the collaborative process to hear directly from First Nation rightsholders and organizations to ensure that the diverse voices and experiences are reflected in the path we move forward.”

The minister’s office has received proposed solutions and formed an advisory committee to assess their legal feasibility. After that, there will be formal consultations. 

“We remain committed to advancing this important work,” the statement said.

A long-standing pattern

Truesdale says the government has a history of moving slowly to address concerns about Indian registration, and of amending the legislation in a piecemeal fashion, bit by bit, and mostly in response to court rulings.

“It’s such a long-standing pattern that it’s hard not to see it as an attempt to delay taking on obligations toward those additional people,” she says of legal duties under the Indian Act and federal programs for status Indians.

There are also suspicions that the government wants to forestall any obligations that come with status regarding natural resources. 

“If you’re as skeptical as I am some days, I’m sure that they have to be calculating the costs in the background,” Lawrence says, pointing to the Senate committee recommendation to remove the non-liability provisions, which prevent First Nations women and their descendants from being able to access compensation for the loss of their status.

“It’s kind of ironic because Canada’s funding formulas are very inadequate to begin with, but there’s no doubt this will (see) more people entitled to services and treaty entitlements.”

Prosper says that while there would be increased government obligations if the cut-off is removed, they're not as high as some figures circulating suggest. He points to evidence Statistics Canada provided during committee hearings that showed that, through 2066, a maximum of 300,000 individuals would be entitled to status.

“So, it’s a gradual increase over time,” he says. 

“The real financial impact isn’t as significant as some individuals try to make it out to be.”

A quest for autonomy

Truesdale says there is a general concern about increasing the autonomy that First Nations communities have over their membership and status, which needs to be worked toward. She says the one-parent rule proposed by the Senate is a good place to start until a First Nation opts out to develop its own membership rules. That would be a way to move forward that respects the fact some nations might want a different approach.

“Ultimately, we need to be moving toward a concept of First Nations citizenship and duties of the federal government and benefits under the Indian Act flowing to citizens of a First Nation rather than it being determined by status by the federal government.”

Like most First Nations, Lawrence says the ultimate solution for her clients is to determine who their own members are and make their own decisions. 

“But it’s not easy to get there.”

While some bands have settled specific claims regarding membership lists, in other cases, people have been added to band membership lists by the federal government without the band getting the resources needed to offer them programs and services. 

It creates issues on the ground, and there are also problems with becoming a band as defined in section 10 of the Act, whereby the band controls its own membership rather than the federal government. That’s because it requires a majority of voters to approve a membership code. Lawrence says there haven’t been a lot of First Nations that have successfully adopted their own membership rules in the last 10 or 15 years because of that high voting threshold.

Prosper agrees that moving toward First Nations citizenship and determination of their membership are the ultimate goals, but says eliminating the second-generation cut-off as it relates to status and the legal relationship between the government and First Nations people is the immediate concern.

Given that the Liberal government now has a majority on the committees, there is an increased likelihood that his amendments will be stripped from the bill. Gull-Masty’s office has said there will be future stand-alone legislation to deal with the cut-off.

Lawrence says that creates uncertainty for her clients — the children and grandchildren who have lost status and can’t get it back.

“The Senate recognized this was urgent in 2022, and it doesn’t get any less urgent over time,” she says. 

“There needs to be a bigger plan—this patchwork or piecemeal approach isn’t going to get us to this vision of First Nations controlling their own citizenship rules.”