LEGISLATING OUR EXTINCTION

LEGISLATING OUR EXTINCTION
STATUS LINE - DO NOT CROSS

Friday, March 12, 2010

UPDATED - Bill C-3 - Gender Equity in Indian Registration Act

Sharon McIvor went to court to challenge the gender discrimination in section 6 of the Indian Act, 1985. Registration under the Indian Act provides greater entitlements to Indian men who married out (married a non-Indian) and their descendants as compared with Indian women who married out.

McIvor won both at trial and on appeal and the Supreme Court of Canada refused to hear any further appeal. While the trial court would have offered a broader remedy, the court of appeal limited the scope of the discrimination and therefore made comments which suggested to Canada that it might get away with a minimalist amendment. (For further information on the McIvor case, see my previous blog entry).

As a result of these legal proceedings, Canada embarked upon a very short "engagement" process. It chose not to consult with Aboriginal peoples about the need to amend the Indian Act and instead presented Aboriginal groups with their proposed amendment. Prior to the amendments being released, most understood that the proposed amendment would grant section 6(1) status to the children of Indian women who married out (they are currently section 6(2) Indians) and grant for the first time, section 6(2) status to the grandchildren. However, it now appears that this is NOT the case.

On Thursday, March 12, 2010 Minister of Indian and Northern Affairs (INAC) Chuck Strahl introduced Bill C-3 An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs) into the House of Commons. This Bill will have to go through both Parliament and the Senate in order to become law.

With regard to the grandchildren of Indian women who married out, the Bill seems to be on track with what Canada proposed during the engagement sessions held in 2009. INAC has published a document to explain how the legislative amendments are intended to apply to individuals who are the grandchildren of Indian women who married out. Canada explains that if an individual can answer the following three questions, they are encouraged to apply for registration:

(1) Did your grandmother lose her Indian status as a result of marrying a non-Indian?

(2) Is one of your parents registered, or entitled to be registered, under sub-section 6(2) of the Indian Act?

(3) Were you born on or after September 4, 1951?

The problem comes when the children (not grandchildren) of Indian women who married out ask themselves whether they qualify for a change in Indian status from section 6(2) to section 6(1)? The short answer is YES - if they had disentitled kids (non-status Indian kids) and NO - if they never had any kids or had kids with another registered Indian therefore making their children "entitled".

Although not highlighted in their publication which explains how the new amendments might affect individuals, in one of their explanation documents, INAC provides the following check list to determine which section 6(2) Indians will be entitled to registration under the proposed section 6(1)(c.1):

(1) Did your mother lose status for marrying an Indian man?
(2)Is your father a non-Indian?
(3) Were you born AFTER your mom lost status but BEFORE 1985 (unless your parents married each other prior to 1985)?
(4)Did you have a child with a non-Indian on or after September 4, 1951?

Number 3 is somewhat complex and confusing and seems to be an awkward attempt to prevent the possibility that any of the descendants of Indian women might have enhanced status. However, number 4 creates a whole new division amongst section 6(2) Indians - (1) those who had "disentitled" (non-status) kids and those without kids, and (2) those with disentitled kids and those with status Indian kids.

For the first time in the Indian Act's history, one's specific entitlement to Indian status will depend in part on whether one has children, and more specifically whether one has non-status Indian children. Status has always been determined based on one's parents. This new section would now put the focus on the status of one's children. This is absolutely ridiculous and completely unnecessary in order to acheive the goal of addressing the inequity between the decendants of Indian women versus Indian men.

This Bill is supposed to address gender inequity and not create more inequity and division between siblings and families. This is a significant matter that must be addressed before the Bill is passed.

At the same time that Canada announced the Bill, they also indicated that there would be a joint process developed in conjunction with Aboriginal organizations, First Nations groups and individuals to try to address the broader issues around registration, band membership, treaties and other cultural issues.

But some non-Aboriginal people are asking the question: why should Canadians care about this legislation? This is actually a good question that needs to be addressed.

When Prime Minister Stephen Harper stood before Parliament and apologized to the survivors of the residential school system, he did so on behalf of all Canadians. While there has been a great deal of debate about the adequacy of the apology and an obvious lack of corresponding action, the fact remains that an apology was made.

PM Harper apologized for the assimilatory foundation upon which the residential school policy was based. The goal of assimilation was based on the idea that European culture was superior to Aboriginal cultures. In addition to the physical and sexual abuse experienced by Aboriginal peoples in residential schools, they also suffered from divided families and communities, and a loss of language, culture and identity that has resulted in significant social ills within Aboriginal communities both on and off-reserve.

What Canadians have to remember is that the Indian Act and its predecessor legislation is based on the very same assimilatory foundation as the residential school policy and it has caused the very same division of families and communities, and loss of language, culture and identity. The Indian Act went even further to incorporate a male-preference for registration, membership, residency, voting rights, and access to Aboriginal and treaty rights as well as various programs and services.

Canada essentially incorporated an idea into the Act that gave the message to communities that Aboriginal women were less worthy and less capable of passing on Aboriginal identity and culture. This has had an incredibly damaging affect on both Aboriginal women and their communities.

Yet, Canada, as a Nation, does not stand for racism or sexism. Canada publically holds itself out to the international community as being a modern, democratic country which values human rights, gender equality and multi-culturalism. If this is indeed representative of Canadian values as a whole, then Canadians ought to care very deeply whether laws affecting Aboriginal peoples also represent a respect for human rights, gender equality and respect for Aboriginal culture.

The Indian Act's registration provisions were based on outdated, assimilatory goals and include a formula that ensures the eventual legislative extinction of Aboriginal peoples. Canada must take action to amend the Act in a meaningful, significant way that reflects our core values as Canadians, at least until something else replaces the Act. The current proposed amendment does not do this.

By not amending the registration provisions in any significant way, we are allowing assimilation to continue. This lack of action not only violates basic human rights related to gender and identity, it also violates section 35 of the Constitution Act, 1982 which represents not only the highest law of the land, but a significant promise to Aboriginal peoples to protect their culture and identity for future generations.

Canada accepts tens of thousands of new immigrants to this country every year, who draw upon Canada's financial and other resources, yet Canada fought tooth and nail against Sharon McIvor for over 20 years to avoid having to register the descendents of Indian women. That does not represent a commitment to gender equity for Aboriginal peoples - it represents more of the assimilatory attitudes upon which this Act was originally based.

We wouldn't accept the reopening of residential schools - therefore Canadians should not stand for the continued assimilation of Aboriginal peoples through the registration provisions of the Indian Act.

One can only hope that the joint process announced by Canada will address these urgent issues.

24 comments:

  1. Thanks for the detailed info.
    Aside from the ideal solution of writing a new Act to replace the Indian Act; one based on Constitutional rights rather than assimilatory goals, is the short answer that the Act should be amended to eliminate the sub-division of status 6(1) vs 6(2) and perhaps open the door to status registration with the onus on the Government to prove wrongdoing instead of of the individual proving their right?

    ReplyDelete
  2. Thank you Pam! a clear message to all who read your work! I have a lot of questions thrown my way as Native Prison Liaison on the BC coast as to what Bill-C-3 means.
    We say Hych Qa... Thank you!
    Daniel Elliott Chemainus First nations

    ReplyDelete
  3. Thanks for all your comments. People are always asking me what Bill C-3 means for them and it is important that they have access to the information. I appreciate hearing from you.

    ReplyDelete
  4. All of your information has been very helpful. I am currently in the process of getting my daughter status through me; which I happen to be a 6(1) but her father is non-status. As you know, this is not possible but will hopefully be the future. I would be very grateful if we could speak because I have many questions and need all the help I can get...my email is kyralwilson@hotmail.com Thanks!!

    ReplyDelete
  5. Dear KW,
    As the Indian Act currently reads, if you are a section 6(1) Indian and your daughter's birth father is not registered as an Indian, then your daughter would qualify for section 6(2) status - unless there is something else about your file that adds some complication?

    ReplyDelete
  6. My mother is a status indian and my father was not.
    I was born in 59 . What am I?

    ReplyDelete
  7. Hi Robert;
    It is not for me to tell you what or who you are - your identity is yours to determine. If you are wondering whether you qualify for status, why don't you send me an e-mail at palmater@nonstatusindian.com.

    ReplyDelete
  8. Hello Pam

    Just curious if this has been finalized into being yet or if it is still working it's way through? In my opinion the original indian act should have an amendment to place the female bloodline on the EXACT same level as the male blood lines. Under this I would qualify as a 6(2) simply due to my grandfather never registering... my children however ( who are very proud to be Mohawk) will not.. or will my son but not my daughters? Please feel free to email me - NightEnd32@hotmail.com

    ReplyDelete
  9. Yes, INAC has posted new information on their website about how to apply and what the next steps are.

    Your grandmother does not have to be registered or alive, she simply has to be "entitled", i.e. would should have qualified.

    ReplyDelete
  10. My family and I registered to have a our status instated because our mother had it. She passed away this past summer and now we keep having problems with it. Even though we have had our application in for over a year, we were told to re-register under BIll 3C. Is there something you could suggest? Dawn

    ReplyDelete
  11. Hi Dawn;

    There is a deeming provision in the Indian Act to allow people to register even if their parents are deceased. Perhaps they told you to re-register under Bill C-3 because they think that is how you will qualify? The forms are different for Bill C-3 applicants. Perhaps try that?

    ReplyDelete
  12. Hi Pam,
    My mom was a status Indian and my dad a non-status Indian. 3 of my siblings were born before my parents were married ( but they were living common-law) My younger brother and I were born after the marriage. When her treaty status was given back in the 80's my older siblings were given full treaty rights and little brother and I were deemed bill c-31. This is because of the marriage. Fast forward to now.
    I have 2 daughters with a non white who were previously denied treaty status (all my older sibling's children are status although their partners are also non-white). I have been sitting on treaty applications for several months now because of Bill C3. When I talked to my band office I was told it didn't pass. Are my kids actually treaty? If I fill out those applications can you guess if I'll get another rejection? Thanks
    Claire

    ReplyDelete
  13. Why don't you email me separately? palmater@indigenousnationhood.com.

    Bill C-3 did in fact pass, and there are separate application forms. It never hurts to apply, but if you want to talk more, send me an email.

    ReplyDelete
  14. I tried to email you a few times and each time the delivery failed. If you have the time my email is kowachuk5@shaw.ca.

    ReplyDelete
  15. Hi;

    I have posted a notice on my blog letting people know that my new blog name, website name and email are all transferred over to Indigneous Nationhood, as opposed to Non-Status Indian. You can reach me at palmater@indigenousnationhood.com

    Pam

    ReplyDelete
  16. hi pam,

    my grandmother was full status indian, she married a non-status... my mother received her status in 85. she was married to a non-status..... i was not elligible for status..... with bill c-3 i am... i sent out my application

    my 2 questions are how long should i wait to hear from IANC...

    and 2 my mother is qualified to change her status from a 6,2 to a 6,1 ..... whats the difference... she<s getting older in life and is it with it to change now

    thanks

    Robert

    ReplyDelete
  17. INAc deals with applications on a first come firts serve basis. However, my understanding is that INAC has implemented a new 6 month service standard which started once the Bill was in force. So, assuming you have everything you need in your application and you qualify, then you should have your number and card within a 6 month period.

    If you qualify and become a section 6(2) Indian, then your parent would automatically be changed to the new s.6(1)(c.1) - in other words, they would not have to apply.

    It doesn't make a difference in terms of INAC benefits, but can make a difference in terms of who can be a band member, now or in the future.

    Pam

    ReplyDelete
  18. BE AWARE...
    MY GRANDMOTHER NEVER APPLIED UNTIL AFTER 1985 OUT OF FEAR OF HER CHILDREN BEING SENT TO RESIDENTIAL SCHOOL.
    BECAUSE SHE NEVER APPLIED UNTIL AFTER 1985 I AM NOT ELIGIBLE UNDER BILL C3. YOUR GRANDMOTHER HAD TO HAVE HAD HER STATUS AND LOST IT AS A RESULT OF MARRYING A NON-NATIVE.
    YET ANOTHER LOOP HOLE FOR BILL C-3.
    I RECEIVED THE NEWS LAST WEEK THAT I AM NOT ELIGIBLE. IF ANYONE HAS ANY SUGGESTIONS ON WHAT I SHOULD DO NEXT I AM ALL EARS!

    ReplyDelete
    Replies
    1. same for my son and step-daughter. My MIL didn't get her status til after 1985 so they are also excluded. For the past year my husband has assured me their treaty status was a sure thing and I kept telling him not to be so sure until we get it because you never know if they will find a loophole and sure enough, they did!

      Delete
  19. Yes, we had heard that INAC might exclude those people. INAC was very very restrictive on who would and would not qualify. I would be shocked if 45,000 actually were registered from Bill C-3.

    ReplyDelete
    Replies
    1. I heard that grandparents and parents can change their status from 6(2) to 6(1). I'm in the same situation as Brayden up above. Do you have any info on how to go about doing this, or should I just phone AANDC?

      Delete
  20. If my great grandmother was chippewa as per the 1901 census and both of her parents were chippewa and she married a white man in 1918 would she have lost her entitlement to register as a status Indian?? I say entitlement because Bill c31 in the application says if your grandmother lost her entitlement. My greatgrandmother gave birth to my grandma obviously and she never registered for status. Even though she too would have gotten her card. Grandma also married a white man. How does bill C31 affect the grandchildren and they're chance of applying for status if both grandparents are dead and never applied even though they both were entitled to registering for status???

    ReplyDelete
  21. Status and registration only came into existence in 1951. Prior to that band lists or treaty lists were kept.

    Also, under the Indian Act, entitlement to registration as an Indian (status) does not require that the parent(s) be living. There is a deeming provision. So, if your parents qualified for status but never registered and you think you would qualify, you should apply anyway.

    I can't tell from your facts whether you would qualify, but INAC would likely want to know birth dates, marriage dates, etc.

    ReplyDelete
  22. Hi Pam,

    PS: The reason I ended on your blog is because my late grandfather is a Palmater too :)

    Great Blog by the way!!! ... all sounds very complicate tho...

    I don't know where to turn to? I currently live in Halifax (I am formerly from NB and was born in the early 1970s).

    It's a complicated story... here goes: My late Grandfather was a Status Indian. He married a Caucasian woman and they had children. One of their daughters (i.e.: my mother) had me illegitimately with a Caucasian man …then I was given up for adoption a couple years later, my adopting family changed my name completely, etc…

    I am not quite sure where I fit in the picture with all the above acts, regulations, clauses, etc…

    I understand that you are in Ontario… Do you know who can turn to / where I can go for help on this in the Halifax area?

    Thank you,

    Jim

    ReplyDelete