Monday, December 14, 2009

Aboriginal Citizenship or Membership in Bands?

There are many Aboriginal leaders and community members from all over Canada who are fighting on our behalf to protect our culture and identity for the future. There is never just one person dedicating their time, effort and "free" time to these issues. It is impossible to list them all in one blog. However, there are always those who stand out above the rest because of their selfless dedication to their people. This blog will highlight one of those people who are working hard to make changes to how we define ourselves for the benefit of our future generations.

Chief William K. Montour, Six Nations of the Grand River Territory in Ontario.

Chief Montour is an inspiration to those who truly know him. He has decades of experience working on behalf of his people both inside and outside of the Canadian government and the Six Nations government. It wasn't Chief Montour that enacted the Indian Act and he certainly did not impose the assimilatory rules, regulations, and policies which have divided Nations and imported anger and distrust into our communities. He no more believes in Indian Act administration than I do. But he also seems to be aware of the present legal realities and has taken up those challenges with a view to making positive changes for the future.

At the AFN AGM which was recently held in Ottawa on December 9-11th, 2009, the assembly had to address a resolution to regarding Indian and Northern Affairs Canada's (INAC's) plan to amend the registration provisions of the Indian Act in a very minimalistic way, that will not address all of the gender discrimination raised in the McIvor case. The debate centered around membership and how it could be impacted by this legislation and disintegrated into a debate about how "band resources" would be at risk if additional members were added to the band lists. It was at this point that Chief Montour addressed the entire assembly and said that he was "confused". He asked them whether the discussion was one of citizenship or one of registration. He explained that by continually pursuing issues of registration, we are involving ourselves in our own assimilation.

He told the assembly that leaving our future to the legislators ensured that we would have no future. He referred to the AFN commissioned-study in 1992 which found that the registration system provides for decreasing numbers of Indians and that his own community of Six Nations which is over 26,000 members strong, would not have any registered or status Indians within 100 years. Under section 91(24) of the Constitution Act, 1867, the federal government has jurisdiction with regards to Indians and lands reserved for Indians. All reserve lands are therefore held by the federal crown for the use and benefit of Indian bands. In order for a band to hold land, there must be band members. Chief Montour then highlighted what I would refer to as the "5 steps to extinction":

(1) In order for a person to be a band member, they must be a status Indian.
(2) If there are no status Indians left in 100 years, then there are no band members.
(3) No band members means no band.
(4) No band means no legal entity left to hold reserve land.
(5) Crown lands without any legally recognized title holders escheats (reverts) back to the Crown.

In Chief Montour's words: "It's the biggest land grab of the century!" He went on to say that we all thought that residential schools were bad because they took away our language and culture. "This is worse: it takes away our identity." Chief Montour told the assembly that he is a Mohawk from the Mohawk Nation and he is proud to be Mohawk. He also explained that no one has the right to tell him that his grandchild is not Mohawk. He then concluded by asking the assembly whether they were working towards citizenship in their Nations or membership codes in their bands.

There is no doubt that gender discrimination or any kind of discrimination within the Indian Act has to be addressed in the interim. However, if we do not also have a bigger plan for our Aboriginal Nations in relation to citizenship; if we do not start acting as the Nations we are; and if we don't start asserting our jurisdiction with regards to citizenship (with or without the cooperation of Canada), then we are already well down the path towards legislated extinction and all the oil royalties in the world will not be able to save our future generations.

As Chief Montour said: "The choice is yours."

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Monday, December 7, 2009

Amendments to the Indian Act's Registration (Status) Provisions

The federal government appears to be pursuing a course of amendments to the Indian Act's registration (status) provisions that will not address all of the gender discrimination raised by Sharon McIvor in her court case (McIvor v. Canada). It would seem that the Minister of Indian and Northern Affairs Canada (INAC, the honourable Chuck Strahl, is relying on the court of appeal's obiter to significantly reduce the amount of gender discrimination it will fix.

The problem is that this minimalist amendment which is being contemplated will have the same effect as the 1985 amendments to the Indian Act (also referred to as Bill C-31). Bill C-31 was supposed to bring the Indian Act into compliance with the Canadian Charter of Rights and Freedoms (Charter) and its section 15 equality provision. As INAC did not address all of the gender discrimination in the Bill C-31 amendments, McIvor and others had no choice but to try to address the residual (remaining) gender discrimination in court. Despite both the trial and appeal court agreeing that there is still gender discrimination in the registration provisions of the Indian Act; INAC plans only to address a limited portion of that discrimination.

What is even more troubling about this situation is that INAC specifically decided NOT to conssult with Aboriginal peoples on this issue. To my mind, there can be no more important issue to Aboriginal peoples that the right to determine their own individual, communal and National identities. The Indian Act's past and current registration formulas are restrictive and meant to eventually eliminate all status Indians and their communities in the future. I include communities because the majority of First Nations determine membership based on the Indian Act's registration provisions.

It is my opinion that Canada does not have the right to determine our legal, social, cultural or political identities and certainly does not have a right to limit our numbers or create a situation whereby we can all be legally extinct within several generations (for some communities). So, we as individuals and communities must not silently acquiesce to this situation. I agree that once a government has it in its mind to legislate in a certain manner, that it is very difficult to change their minds. However, it is not impossible and we as grass roots Aboriginal peoples have the power to stand up for ourselves in our own right and in partnership with our communities, organizations and Nations.

When Mohawk lands were threatended in Quebec, the warriors showed up to defend them. When the Mi'kmaq treaty right to fish was threatended in New Brunswick, the warriors showed up to defend that right. Yet, when the future of our identities and communities are themselves at risk - where are the warriors? Our Aboriginal women and children are being unfairly excluded from their legal identities and their right to belong to their Nations. Where are the warriors to defend these women? One would not be entitled to call themselves a warrior in the past if they could not protect the women and children of their communities.

Some of our leaders sometimes raise concerns about the lack of land and resources of their communities. They somehow associate this lack of wealth with an inability to include Aboriginal women and children as band members. Monetary gain may be attached to land and natural resources, and not to our women and children, but who we are as Mi'kmaq, Mohawk and Maliseet peoples is not based on how much money we have as individuals or communities. The many ways in which we are Cree or Ojibway have absolutely nothing to do with money. An Anishnabek's identity and belonging in one's community is a fact which is determined long before one know's if they can access programs and services or live on a reserve.

What some Aboriginal leaders are missing is that limiting the "pot" to a select few members does not address their lack of capacity in governance, their lack of access to lands and natural resources or their lack of power generally within Canada. A Nation is built, in part, upon its strength in numbers and the loyalty it receives from its citizens. Slowly reducing the number of members a band has is no different than the slow extinction of status Indians. Aboriginal Nations cannot improve their capacity and power within Canada without a solid citizenship base. All limited numbers does is ensure that this generation has access to bigger per capita pay-outs and quicker access to housing on reserve.

Not everyone wants to live on a reserve - in fact, many Aboriginal peoples live off-reserve BUT in their traditional territories. Not everyone wants their identities recognized for the per capita pay-outs - some people want to protect their identities, those of their children and their heirs and heirs forver, because protecting their identities mean protecting the integrity of the Aboriginal communities from which they descend. There is a very simple math - an Aboriginal community can't exist without its citizens and restrictive status or band membership codes means that Aboriginal peoples will continue to lose power and capacity instead of rebuild their once very powerful Nations.

While there may be roadblocks to rebuilding our Nations and healing our people, it is up to us to take action and protect ourselves and our future generations. Despite the constitutional promise to Aboriginal peoples to protect our cultures and identities for future generations, I wouldn't rely on Canada to keep its promise - would you? Take action - start talking - get your community or organization involved - our future generations are depending on it!