A Mi’kmaw man from the Elsipogtog First Nation in New Brunswick says his granddaughter will be the first in his lineage to be ineligible for Indian status.
“For me it’s the fear of being erased from history,” DJ Joseph said.
Joseph was born, raised and worked most of his life in Elsipogtog, a Mi’kmaw community 90 kilometers north of Moncton.
However, due to the second generation cutting rule which eliminates status after two generations of a non-status parent, her new granddaughter is not eligible to receive status under the Indian Act.
Advocates say amendments to the Indian Act currently under review in the Senate do not address the issue, leaving More families will face circumstances similar to those of the Josephs in the years to come.
“My granddaughter and other grandchildren to come… Will they ever be able to say they are Mi’kmaw?” said Joseph.
“According to the government, they can’t.”
Before 1985, Indian status was transmitted almost exclusively through men. That year it was changed to a grandparent status counting system and the 6(2) category was created.
A person with two status parents. is registered under section 6(1), and a person with only one parent status is registered under section 6(2). Both have access to the same services, but the difference lies in the ability to pass on their status to their children.
José has 6(1) status. Her daughter’s mother is not First Nations, so her daughter has 6(2) status. His daughter’s child with a non-First Nations person (his granddaughter was born in May) is not eligible to receive the status.
“It seems done so intentionally by the government,” Joseph said.
“I’m not one to talk like that, but it’s hard not to when you really start to think about it. What I hope for the future is that this will be eliminated, or at least the status can be passed on through other means or that Elsipogtog can take control of our own registry.”
Elsipogtog is a member of the band under section 11, meaning that control of its membership list is in the hands of Indigenous Services Canada (ISC). So when a person eligible for status through Elsipogtog parents registers, they are automatically added to the band member list.
This is in contrast to section 10 band membership, under which a community can develop its own membership codes and people can be added as members according to those membership codes. However, the federal government retains registration for Indian status.
Bill S-2, currently under consideration in the Senate, is the latest in a series of bills aimed at correcting sex discrimination around Indian Act registration.
It does not contain any provision for cutting off the second generation, nor for recognizing the sovereignty of First Nations peoples to control band membership.
Communities must determine membership, says national chief
Assembly of First Nations National Chief Cindy Woodhouse Nepinak said it is time to transfer control over who is eligible for status to communities and remove the second-generation cut-off rule from the Indian Act.
“The government must step aside and allow First Nations the space and resources to develop their own membership codes,” Woodhouse Nepinak said.
“We know our own people from our communities and we need to have full control over our membership.”
While he supports most of what Bill S-2 addresses, he said Bill S-2 lacks action in three main areas: First Nations self-determination over citizenship, the removal of the second-generation cap and a funding mechanism to handle the addition of people who will be newly eligible for the status.
“I think there’s always a concern that the government is not providing enough funding to First Nations to provide the services they need,” Woodhouse Nepinak said.
He said the government should not use its apprehension about providing additional funding for those newly eligible for the status if the second-generation cap is removed as a reason not to remove it.
ISC consulting on second generation cutting
In an email to CBC Indigenous, an ISC representative said that as of January 2025, 29 per cent of the registered First Nations population is registered as 6(2).
“If the legislation does not change, the number of registered First Nations “The population is expected to grow from approximately 1.1 million to 1.6 million by 2066, but over the next three or four generations, the number of people eligible for the status will begin to decline,” the email said.
ISC is working to advance Bill S-2, while consulting separately on the second-generation cutoff, according to the email.
“First Nations partners have been clear that addressing the subsection 6(2) limit is a critical issue requiring urgent attention,” the email said.
“That’s why both things happen in parallel.”
ISC launched consultation process on second generation cutting by the end of 2023. Ninety First Nations and organizations have expressed interest in submitting proposals to resolve the issue and those reports are due in December.
