Last summer, Indian Affairs Minister Chuck Strahl announced that the Canadian government will not appeal a B.C. Court of Appeal judgment that struck down parts of an Indian Act amendment pertaining to Indian status.
The challenge deals with a federal amendment to the Indian Act passed in 1985, called Bill C-31. Sharon McIvor, a First Nation woman, challenged the law, asserting that it continued to allow discrimination.
The 1985 amendment was a response to court judgments that struck down the constitutionality of the Indian Act’s provisions pertaining to women.
Before 1985, First Nation women who married non-aboriginal men lost their status, as did their descendants. However, the law did not apply the same way when a First Nation man married a non-aboriginal woman, as he retained status. The 1985 amendment changed the law so women who had lost their status got it back.
Since the 1985 changes, thousands of indigenous women who lost status have applied for reinstatement and have applied for band membership.
McIvor challenged the law because it still had the effect of preventing certain members of her reinstated family from claiming status due to gender.
McIvor aside, many of the women who applied for reinstatement and their descendants faced resistance from First Nations in claiming band membership. That’s because Indian status and band membership are no longer necessarily connected.
In the past, if you were a status Indian, you automatically qualified for band membership. Now the identification process is more complicated. The federal government maintains a list of all status Indians who qualify for federal services and benefits; each local band also retains a list of band members eligible for band entitlements.
Under Section 10 of the Indian Act, bands may develop their own membership codes. That creates a situation where an Indian may qualify for federal Indian status but be denied band membership because he or she fails to meet local criteria.
This B.C. court found that regulations disqualify the descendants of reinstated women from Indian status and ruled that Parliament had until April 6, 2010, to amend the Act.
McIvor is a status Indian as defined by the 1985 amendments to the Act, so her children have status, even though their father is “non-Indian.”
The court held that the source of the inequality arose from the 1985 amendments in that it granted “enhanced status” to the grandchildren of a male who married before 1985 when compared to a female in the same circumstances. It resulted in preferential treatment for Indian men who married prior to 1985.
The “second generation cut-off” rule should remain, as it denies status after two successive generations of parenting by non-Indians, but gender should play no role.
Some First Nations claim traditions do not allow for equal passage of status.
The Tsuu T’ina First Nation outside of Calgary maintains a “woman follows a man” tradition where women forsake natal community upon marriage.
Most First Nations are committed to equality, and indigenous women’s groups are pressuring bands to recognize gender equality in membership. However, some bands use a “this-is-our-culture” argument as a cover for discrimination.
When Bill C-31 was first implemented, it was resisted by First Nations that supported autonomy in membership codes. However, as bands are publicly funded governments, they should not be allowed to discriminate on improper grounds.
The attitude of some reserve governments and — let’s be blunt – the males who run them, should give governments and Natives pause as indigenous leaders clamour for self-government. Self-government should never be a cover for discrimination.
Other factors are at play. For many reserves, up to 95 per cent of revenue comes from federal transfers, and services are funded by Ottawa. Due to legal obstacles preventing on-reserve business, few independent sources of wealth are produced in the community.
In 1993, Menno Boldt, author of Surviving as Indians: The Challenge of Self-Government, observed that bands adopted very conservative membership codes to protect the per capita share of their benefits. Evidence of this tendency, he said, was demonstrated by reluctance on the part of First Nations to accept Bill C-31 women and their descendants.
Indian status is not solely about culture; it is about entitlement to resources.
Accepting new members, says Boldt, means “cutting an already inadequate ‘pie’ into smaller pieces.”
This demonstrates why First Nations must fund their own services. Self-taxation should become the norm, which entails the development of an economic base to tax. This means 19th-century obstacles to economic growth on reserves need to be removed.
When Ottawa changes the law defining Indian status, it should enshrine gender equality, regardless of past culture. This should include more than 230 bands with their own membership rules. Indian women should not be denied equal protection under the law.
Joseph Quesnel is a policy analyst with the Frontier Centre where he writes mainly about aboriginal issues.