The Indian Act and the continuing lack of recognition of Indigenous peoples in Canada
Dozens indigenous women have been murdered on a 450-mile section of Highway 16 in British Columbia, Canada since the 1970s - it is referred to as the Highway of Tears. The region around this part of the highway is afflicted with poverty, as well as a lack of public transportation. Because of this, many native people in this dangerous area are forced to hitchhike. Every few miles, there are signs placed on the side of the highway that read, “GIRLS DON’T HITCHHIKE on the Highway of Tears. Killer on the Loose!”
In order to be recognized as indigenous by the Canadian Government, one must attain Indian Status. This is defined by the Indian Act of 1876, written during a period of colonialism, in the Canadian Constitution. Obtaining status provides access to certain benefits like free healthcare and education, rights to live on a reservation and the ability to inherit family property.
The act offers a certain level of protection and retroactive assistance to the community. The issue remains, however, as to why the Canadian government still has the sole power to determine this in the first place. The act is particularly troubling because it is more difficult for women and her descendants to maintain status than men.
“This is a prime example of what happens when you have that archaic act governing who is status and who is non-status among First Nations people — and in most instances, they’re targeting women” said Cheryl Casimer, a First Nations Summit Task Group political executive and citizen of the Ktunaxa Nation. The group is mandated to carry out specific tasks related to Aboriginal Title and Rights negotiations with British Columbia and Canada.
“Some of these women [along the highway] no longer had status, they no longer had community, and nowhere to go. They’re forced into precarious situation, they move to urban centers, and no support or connection anymore!”
“In order to fulfil colonial purpose to purchase First Nations lands, there was a strong inclination on the part of the colonialists to try and define who was, and who was not an Indian” said Drew LaFond, the Vice President of the Indigenous Bar Association in Alberta. “They adopted a lot of Victorian principals that were a standard practice in Britain, that also happened to be quite discriminatory against women.”
During the implementation of the Charter of Rights and Freedoms in 1985, a bill that guarantees and protects civil rights for everyone in Canada, the Canadian government finally amended the Indian Act. This amendment meant that if an indigenous woman married a man who was not legally an indigenous Canadian, she and her descendants were no longer permanently barred from accessing their Indian Status rights. This rule never applied to indigenous men — they could always marry whomever they wanted, and not worry about accessing their rights.
In an attempt for gender equity, the bill stated that the necessary parameters for claiming status would no longer be patrilineal, but required that at least two grandparents had to be of native descent to claim 6(1) or full Native status.
The bill also stated that women who had previously lost status due to marriage, would now be able to re-apply. Their children however, had to register under subsection 6(2), which means they are unable to pass on their status and its accompanying benefits to future generations.
The government then introduced Bill C-3 or The Act to Promote Gender Equality in Indian Registration in 2010, as many activists and lawyers thought the court system was still failing to implement the gender discrimination provision.
A few weeks ago, the Canadian Senate approved another new bill to continue to improve the lack of equity in the status-application process.
“Our government is committed to working with First Nations, parliamentarians, impacted individuals and experts to ensure all gender-based discrimination is eliminated from registration under the Indian Act,” the office of Carolyn Bennett, the minister for indigenous relations, said in a statement.
While some have call this a move toward gender parity for indigenous women, many doubt that this new legislation will be effective.
“They’ll do what they always do,” said David Schulze, “they’ll say ‘we’ve cured all known forms of discrimination.’” Schulze is a lawyer in Montreal who specializes in Aboriginal law and recently represented Stéphane Descheneaux in the sex discrimination court case that prompted the legislation of the most recent discrimination bill. What the courts mean is, he explained, that they have judged the particular gender issues that have been brought to them, and that is all that is required. There has not yet been a re-work of the system. Rather, the onus is on the plaintiff to bring the discrimination to their attention.
There are many intangible benefits of status, like being a member of a culture and community, and the ability to pass that culture and sense of belonging down to your children.
“For instance, if a status woman needs help with her child’s welfare, her band will get involved to support her,” said Gena Edwards, the Vice President of the BC Native Women’s Association and a member of the Ts’kw’aylaxw First Nation. “If she doesn’t have status, she will have no band to fall back on, and will have nowhere to look for support.” A band describes a local residential group in First Nation communities.
Some indigenous politicians, policy-makers and activists have suggested treaties in conjunction with the Indian Act, as a way of giving back some legal control to the indigenous community, and therefore, to indigenous women. While still allowing for all of the rights and benefits and laws that Canadians realize, this method could empower the native population to determine their own citizenship requirements of their given Nations.
“The Indian Act has had so many assessments, so many inquiries and so many hearings about what’s wrong,” said Victoria Pruden, executive director of Bridges for Women Society, a group serving the women of traditional territories of the Lkwungen, Malahat, Pacheedaht, Scia’new, T’Sou-ke and W̱SÁNEĆ in Vancouver.
“But they’re sorely lacking programs and services that can actually address the vulnerability of indigenous women. Things like poverty and mental health need a huge investment.”
After a long historical struggle to amend an outdated and sexist policy, Casimer said, “Although I suppose I appreciate what the federal government is trying to do, what we really need to do is dissolve the Indian Act.”
