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The vexed question of the Indian Act

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Image: Wikimedia Commons/National Film Board of Canada

From 1981 to 1921, the young country of Canada (as represented by the British monarch) signed 11 Numbered Treaties with Indigenous people -- numbers 1 through 7 from 1871 to 1877 and numbers 9 through 11 from 1899 to 1921. To Canada, these treaties cleared the way for mass migration (750,000 arrived from 1890-1920) and resource extraction, such as logging or mining.

First Nations thought they were signing peace treaties, and safe passage treaties, with which they were familiar. To them, treaties were and are sacred obligations. First Nations in Nova Scotia, Saskatchewan, Alberta and Manitoba still celebrate their local Treaty Day as an important historical event.

Indigenous people expected to relate to Canada on a nation-to-nation basis. Little did they know that in 1876, the new federal government had already drafted the document that would really govern how they were treated: the Indian Act.  As Wikipedia says, the Act is wide-ranging in scope, covering health care and education as well as rules for running Band Councils and for identifying who is or is not a "status" Indian subject to the Act and therefore eligible for band membership.  

Under the Act, status is the same as band membership. A status Indian can vote in band elections, bid for available housing and jobs, have access to medical and dental care, and may be eligible for some education benefits programs as well as sharing any revenue the band earns through resource royalties or social entrepeneurship. Conversely, the band may forbid a non-status person from living in the community.

When I first heard about the Indian Act in 1970, Section 12(1)(b) stipulated that a man with band status could confer his status on his wife, but a woman lost her band status if she married a man who wasn't a member. This double standard was foreign to most First Nations, and furthered assimilation, because as in most societies, women are the main teachers of the daily habits that make up culture.

Mary Two-Axe Earley raised the issue in 1968, when the Band Council tried to remove her from her (deceased) parents' home on the prosperous Kahnawake Mohawk reserve outside Montreal. Married to an outsider, she was unable to inherit the land herself. Two-Axe Earley lived in the house as a guest of her daughter, who was married to a band member and thus had regained her status.  

In 1974, the Supreme Court of Canada heard Jeannette Lavell's challenge to 12(1)(b) and dismissed her claim on the grounds she was only entitled to a day in court, and she had had it. In 1978, Sandra Lovelace took a similar complaint to the United Nations, which found in her favour, but to no effect.

Which is to say that this struggle goes back to the Royal Commission on the Status of Women's 1970 recommendations. Although the Act has been amended several times, the spirit of 12(1)(b) lives on, making it perhaps the toughest piece of sexist legislation that women's groups have ever tried to overturn. Lawyer and feminist activist Shelagh Day told The Globe that as far as she knows, "this is the last piece of overt legislated sex discrimination left in Canada..."  

In fact, legal challenges have changed that section of the Indian Act before. When the Charter of Rights' Section 15 came into effect in 1985, the federal government passed Bill C-31, which restored band membership to those who lost it under the section -- including Mary Two-Axe Earley, who was able to live, die, and be buried on her home reserve.

Still the Section 15 challenges continued, notably Sharon McIvor's 2009 B.C. case and subsequent appeal to the United Nations. This week we learned that the Liberal government is changing some small sections of the Indian Act, in response to a lawsuit by Stéphane Descheneaux, a man from Odanak, an Abenaki community in Quebec.

Descheneaux discovered that he could not pass along his Indian status to his three daughters, because his own grandmother, although Indigenous, lost her band status when she married an outsider. The government is putting another small patch on the Indian Act, making as many as another 35,000 persons eligible for status.

On the other hand, maybe the Indian Act itself is beyond repair. That's the opinion of Perry Bellegarde, National Chief of the Assembly of First Nations. He suggested to Gloria Galloway at the Globe that the main reason the Act survives is that First Nations have yet to create their own citizenship laws.  

Mind you, First Nations’ objections defeated the 1969 attempt to abolish the Indian Act outright, with the government stating its expectations that Indigenous people would assimilate into the larger society. Indigenous people living on their own land usually say they do not want to be assimilated.

Various federal efforts to devolve some powers to local bands failed in 1994, 1996, 2002, and 2007.  And still the bands are struggling to care for their residents. Perry Bellegarde pointed out that the new law means thousands of new registrants for Indigenous health care and dental programs. The $130 million the federal government just added for health care for Indigenous people will only go so far.

Money is the real issue, according to Cindy Blackstock of the First Nations Child and Family Caring Society.  Ten years ago, Blackstock won a federal Human Rights Commission ruling that the federal government discriminates against children on reserves by funding their services at a lower level than other children in Canada.  

The one-third of Indigenous people who live on reserves rely almost entirely on federal government support for their services, whereas other communities usually also receive provincial funding for education and health services. That top-up funding can determine whether a community has a fully equipped medical clinic or a Nurse Practitioner station  -- whether they can offer a high school education locally, or have to send teens away for secondary education.  Reserve residents need the same kind of complementary funding that towns and cities receive, whether from federal funds or elsewhere.  

Lately, some bands have started to separate status from band membership. In April, the Fort William band declared Damian Lee to be a member, although his ancestry is "white." Adopted by his stepfather at six months old, Lee grew up on the reserve and wanted to be a member. When he discovered that the federal government dropped the "status" requirement for membership back in 1987, he pushed band leadership to use their new(ish) authority and include him. He can vote and run for Band office, although he can't claim a tax deduction or apply for a scholarship as a status Indian.

His membership reinforces National Chief Perry Bellgarde's point. When local bands create their own citizenship laws and acts, they'll not only be on stronger ground in dealing with the federal government, they'll also be in better position to negotiate with their provincial governments. And they will render the Indian Act obsolete.    

Image: Wikimedia Commons/National Film Board of Canada

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