Genderising settler colonialism: Éloïse Décoste, ‘The Indian Act and the Gendered “Logic of Elimination”‘, McGill Law Journal, 71, 4, 2026, pp. 1001-1035 | settler colonial studies blog

Genderising settler colonialism: Éloïse Décoste, ‘The Indian Act and the Gendered “Logic of Elimination”‘, McGill Law Journal, 71, 4, 2026, pp. 1001-1035

07Nov26

Abstract: One central feature of the Indian Act, still in force today, is the federal government’s unilateral power to define who is legally recognized as an “Indian.” For most of the Act’s history, First Nations women who married non-status men lost their status, could not transmit it to their children and were forced to leave their communities. In contrast, First Nations men retained their status and could transmit it to their non-status wives and their children. This article examines this legislated regime of genderbased discrimination and argues that it exemplifies how structural violence against Indigenous women has always been integral to Canada’s settler colonial fabric. To support this argument, it traces the trajectory of the “marry out” rule from pre-confederation laws through the 1951 reform of the Indian Act. The article then demonstrates how the imposition of a Victorian model of gender relations undermined Indigenous women’s roles and advanced settler colonialism. Finally, it shows how gender-differentiated harms persist despite the formal repeal of the discriminatory provisions in 1985. The article concludes by underscoring the need for a gendered lens in evaluating the legacy of the Indian Act, particularly as efforts to harmonize Canadian law with the United Nations Declaration on the Rights of Indigenous Peoples raise fundamental questions about the Act’s future.

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