Bill C-3, An Act to promote gender equity in Indian registration, received royal assent on Dec. 15.
On Nov. 26, Sharon McIvor, the First Nations woman whose constitutional challenge to the Indian Act is the inspiration for Bill C-3, filed a complaint against Canada with the United Nations Human Rights Committee.
Bill C-3 will, one more time, fix part of the discrimination against Aboriginal women and their descendants, but leave a lot of it in place. Sharon McIvor has been unable to win full justice from the Canadian courts or from Parliament, so she is taking her case to the international community. Her complaint is that for 153 years Canada has discriminated against Aboriginal women and their descendants, and in 2010 Canada is passing new legislation that still does not fully eliminate the discrimination.
Starting in the 19th century, Canada enacted laws defining who is an Indian. Patriarchal settler governments defined an Indian as a male Indian, the wife of a male Indian, or the child of a male Indian. These laws treated Aboriginal women as property, not as full persons, capable, like men, of transmitting status to their partners and descendants.
For example, if a male Indian married a non-Indian he endowed his Indian status on his wife and children, while a female Indian who married a non-Indian lost her status, and could not pass it to her husband or her children. This "marrying out rule" is just one aspect of the preference granted to male Indians and male line descendants for generations.
In the 1970s, Jeanette Corbiere Lavell and Yvonne Bedard challenged the discrimination in the marrying out provisions in the Indian Act using the Canadian Bill of Rights. They lost. The Supreme Court of Canada reasoned that the Bill of Rights only prohibited discrimination "before the law," that is, in the administration of the law, and since all Aboriginal women were treated the same, there was no discrimination.
Shortly after, Sandra Lovelace, now a Senator, took a complaint to the UN Human Rights Committee, which ruled that Canada violated its international human rights obligations by denying women who married out the right to equal enjoyment of their culture. In 1985, partly in response to Lovelace, and partly in anticipation of the new equality guarantee in the Charter, Canada amended the Indian Act and removed some of the sex discrimination, but not all of it. In 1985, Canada carried forward the male privilege embedded in earlier versions of the Indian Act. It granted status to women who had married out, but it granted them a second class status. They could pass Indian status to their children, but not to their grandchildren. Their male counterparts who never lost status when they married out had full status, and could transmit it to their children and grandchildren.
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When Sharon McIvor challenged this post-Charter continuation of sex discrimination against Aboriginal women and their descendants, she won at the trial level. But the B.C. Court of Appeal ruled that most of the discrimination against Aboriginal women and their descendants in the 1985 Act is justified because its purpose is to preserve the pre-existing rights of the men and their descendants.
This is shocking reasoning in the Charter era, especially when extending the same rights to Aboriginal women and their descendants would in no way diminish or disturb the rights of the men and their descendants; it would just make the women and their descendants equal. According to the Court, only where the 1985 Act improved the rights of male-line descendants, rather than merely preserving them, was there discrimination that was not justified. Since the Conservatives have based their amendments on the B.C. Court of Appeal's logic, many descendants of Aboriginal women, whose paternal line counterparts have status, will still be left out by Bill C-3, and Aboriginal women will still not have equality.
Although the Conservatives say that Bill C-3 will provide access to Indian status to 45,000 descendants of Aboriginal women who were previously ineligible, it will still not give them equal registration status. The descendants of women will still have less ability to transmit their status than the descendants of men. The legislated inability of one Indian parent to transmit status, known as the second generation cut-off, will apply to them one generation earlier than it applies to male lineage descendants.
In addition, Bill C-3 will still leave out many Aboriginal women and their descendants for no reason other than sex discrimination. Since Bill C-3 proposes only to correct the sex discrimination against the grandchildren of women who lost status by "marrying out", it will continue to exclude grandchildren descended from status Indian women who co-parented with non-status men in common-law unions, as well as female children and grandchildren of status Indian men who co-parented with non-status women in common-law unions. Male children and grandchildren of status Indian fathers who co-parented with non-status women in common law unions are not excluded.
So here we are in 2010. We have Lavell; Bedard: Take II from the Canadian courts -- more discriminatory reasoning, another failure to apply equality guarantees to bring sex discrimination against Aboriginal women to an end. And we have Lovelace: Take II as well. One more time, a Canadian Aboriginal woman has to go outside Canada's domestic institutions of law and governance to seek justice. Canada should be proud of Sharon McIvor for having the determination and courage to keep fighting for all the Aboriginal women and their descendants, and Canada should be ashamed of itself for not bringing 153 years of sex discrimination to an end.
Shelagh Day is a director of the Poverty and Human Rights Centre in Vancouver.
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I read the decision of the Supreme Court of British Columbia in the case of McIvor v. The Registrar, Indian and Northern Affairs Canada. You may have heard about that decision. It pertains to the definition of "Indians'' and the status of "Indian'' in relation to the Indian Act. In its opening remarks, the court addressed the concept of "Indian''; in other words, who should be considered an Indian.
The court stated the following:
The concept "Indian'' is a creation of statute. Prior to the arrival of Europeans, the Aboriginal peoples who inhabited the region that would become Canada had their own forms of social organization with their own names by which to identify their social groups. Fundamental aspects of these forms of social organization included rules for the identification of members of the group, the transmission of membership status in the event of marriage and the transmission of membership status to descendants. These rules were diverse and often quite different from the forms of social organization of the colonists.
That is paragraph 8 of 351 paragraphs. It is a very long decision, and it is the most recent one. It was released on June 8.
It seems to me that there is now a greater awareness by the Canadian court of the importance of Aboriginal law. When this committee dealt with the harmonization of the French civil law with the British common law as it stands now in its development in Canada, it mentioned the importance of the Aboriginal law tradition. That was mentioned by the members of the committee, and we appended observations to our report on that bill. There is a much greater awareness now ...
http://www.courts.gov.bc.ca/jdb-txt/CA/09/01/2009BCCA0153.htm
They struck down the section of Bill C-31 that only allowed certain children to gain status.
But it is postponed for a year.
Conclusion
[165] While I am in agreement with the trial judge that s. 6 of the Indian Act infringes the plaintiffs' right to equality under s. 15 of the Charter and that the infringement is not justified by s. 1, I reach this conclusion on much narrower grounds than did the trial judge.
In particular, I find that the infringement of s. 15 would be saved by s. 1 but for the advantageous treatment that the 1985 legislation accorded those to whom the Double Mother Rule under previous legislation applied.
[166] I would allow the appeal, and substitute for the order of the trial judge an order declaring ss. 6(1)(a) and 6(1)(c) of the Indian Act to be of no force and effect. I would suspend the declaration for a period of 1 year.
Speech from the Throne
3 March 2010
http://www.cbc.ca/news/pdf/sft-ddt-2010_e.pdf
page 20/26 ( third bullet)
" It is only 50 years ago that Aboriginal people in Canada were granted the right to vote.
To further protect the rights of Aboriginal people, particularly women living on-reserve, our Government will take steps to ensure the equitable distribution of real property assets in the event of death, divorce or seperation.
It will also introduce legislation to comply with a recent court decision in order to address gender inequality under the Indian Act."
R. v. McIvor, 2008 SCC 11, [2008] 1 S.C.R. 285 Date: March 20, 2008 [Highlight Query Terms]
http://scc.lexum.umontreal.ca/en/2008/2008scc11/2008scc11.pdf
SUPREME COURT DECISION...NOT OUT OF THE GOODNESS OR LARGESS..READ the Charter of Rights and Freedoms
This Supreme Court decision simply allows status to flow from the grandmother to the grandchild as what ALREADY exists for grandfather passing down to the grandchildren, which has been part of the Indian Act since 1827..I think
Under Canada's Charter of Freedoms & Rights sexual discrimination is against the law...
Put simply: It's a double mother rule.. if the mother & her mother are Indians under the Indian Act, the grandchild is also an Indian Under the Indian Act.
If you read even just the first 10/33 pages of this document you''ll understand the issue:
http://www.iog.ca/publications/1-Bourassa_Peach_paper.pdf
This is the Supreme Court of Canada dicision:
http://scc.lexum.umontreal.ca/en/2008/2008scc11/2008scc11.pdf
IT'S A FUTHER STEP IN BRING THE INDIAN ACT BILL C-31 LEGISTATION IN LINE WITH CANADA'S CHARTER OF RIGHTS & FREEDOMS...
RCAP:VOL. 2 PT TWO
Appendix A: Summary of Rec in Volume 2, Pts 1&2
3. Aboriginal peoples are not racial groups; rather they are organic political and cultural entities. Although contemporary Aboriginal groups stem historically from the original peoples of North America, they often have mixed genetic heritages and include individuals of varied ancestry. As organic political entities, they have the capacity to evolve over time and change in their internal composition.
4. The right of self-determination is vested in Aboriginal nations rather than small local communities. By Aboriginal nation we mean a sizeable body of Aboriginal people with a shared sense of national identity that constitutes the predominant population in a certain territory or group of territories. Currently, there are between 60 and 80 historically based nations in Canada, compared with a thousand or so local Aboriginal communities.
Re:citizenship, RCAP concludes :
19. Under section 35 of the Constitution Act, an Aboriginal nation has the right to determine which individuals belong to the nation as members and citizens. However, this right is subject to 2 basic limitations. 1st, it cannot be exercised in a manner that discriminates between men & women. 2nd, it cannot specify a minimum blood quantum as a general prerequisite for citizenship. Modern Aboriginal nations, like other nations in the world today, represent a mixture of genetic heritages. ID lies in their collective life, their history, ancestry, culture, values, traditions & ties to the land.
National Clearinghouse on Family Violence
Emma D. LaRocque *
Permission is granted for noncommercial reproduction related to educational or clinical purposes.Please acknowledge the source.
ISBN 0-662-21483-8
Racism, Sexism,
Colonization and racism go hand in hand. Racism has provided justification for the subjugation of Aboriginal peoples. While all Aboriginal people are subjected to racism, women further suffer from sexism. Racism breeds hatred of Aboriginal peoples; sexism breeds hatred of women. For Aboriginal women, racism and sexism constitute a package experience. We cannot speak of sexual violence without at once addressing the effects of racism/sexism.
Violence in Aboriginal Communities
National Clearinghouse on Family Violence
Emma D. LaRocque *
Permission is granted for noncommercial reproduction related to educational or clinical purposes.Please acknowledge the source.
ISBN 0-662-21483-8
Colonization
Colonization refers to that process of encroachment and subsequent subjugation of Aboriginal peoples since the arrival of Europeans. From the Aboriginal perspective, it refers to loss of lands, resources, and self-direction and to the severe disturbance of cultural ways and values. Colonization has taken its toll on all Aboriginal peoples, but it has taken perhaps its greatest toll on women. Prior to colonization, Aboriginal women enjoyed comparative honour, equality and even political power in a way European women did not at the same time in history. We can trace the diminishing status of Aboriginal women with the progression of colonialism. Many, if not the majority, of Aboriginal cultures were originally matriarchal or semi-matriarchal. European patriarchy was initially imposed upon Aboriginal societies in Canada through the fur trade, missionary Christianity and government policies. Because of white intrusion, the matriarchal character of Aboriginal spiritual, economic, kinship, and political institutions was drastically altered.
Chain Her by One Foot isbn # 0415047587 In her social history of the Jesuit mission among the Huron and Montagnais she argues that it was the women who were the main focus of Jesuit missionary zeal, which sought to uproot native, matrilineal, customs in favour of French, patriarchal, ideology.Karen Anderson, a professor in a western Ontario university now when I met her she was researching for her thesis.. I miss working @ the AFN library...sigh
During the change from matriarchies to men ruled systems (starting circa 2000 BC) for many centuries, patriarchal marriages in Egypt existed side by side with old-style matriarchal unions... The most significant revolution in Greece was the transition from matrilineal to patrilineal succession and the resulting destruction of clan loyalties. Matrilineal inheritance was the rule among British and the other Old European tribes until coming of Christianity. The English "heir" came from heres, cognate with the Greek word for a female landowner, here or "Hera." (The Magna Carta referred to a here as person of either sex. Later church laws listed heres as exclusively male.)Matrimony came to be synonymous with marriage only because marriage was a way for men to gain control of property.Male scholars have been reluctant to describe ancient systems of matrilineal inheritance. After translation of early Babylonian texts, W. Boscawen wrote, "The freedom granted to women in Babylonia allowed them to hold and manage their own estates.... The implication was that women held their property only through men's lenience, which was not the case. Women held property by the ironclad law of mother-right, and a Babylonian wife had the same title as a matriarch in India, grhadevata, "House-Goddess."
"European governments and missions in Africa loosed a torrent of propaganda against matrilineal customs among the natives. In most African nations, European land reforms consisted of taking land away from the women and allocating it to their husbands. This tended to make the women paupers and destroy their self-respect, as the tribes looked down on a woman who couldn't support her children. As a result up to today tens of thousands of people, especially children, starve in the so called 3rd World Countries every year. Patriarchal religious authorities everywhere changed ancient systems of matrilineal inheritance to put property in the hands of men. Medieval Christian kings commonly endowed their barons with the phrase, "Take that woman and her fief." The early centuries of the Christian conquest of Europe were largely occupied with acquisition lands from the pagan women.The aim of European Christianity was acquisition of property, which meant overturning pagan systems of matrilineal inheritance. By forcible seizure and warfare, the church managed to acquire fully a third of all the landed property on the continent by the early Middle Ages. Until the 10th century, priests married to gain property, claiming that without their wives they succumb to "hunger and nakedness." Church laws revised the system; then a series of papal decretals between 1031 and 1051 ordered priests to abandon their wives and sell their children into slavery. Naturally, the property and monies thus acquired by a priest revert to the church upon his death, since he no longer had legal heirs. Up to the present time, lack of control over money and property is still the greatest obstacle for women who wish to bring up their children respectably or take them and leave abusive or violent husbands. In this respect the centuries of patriarchal effort achieved their goal.
The matrilocal marriage tradition,and matrilineal ownership of the home place were customary among the Algonquin, Sioux, Seneca, Pawnee, Seminole, Kiowa, and Cree tribes.
http://matriarchy.info/index.php?option=com_content&task=view&id=9&Itemi...