Monday, February 22, 2010

McIvor is Just the Start - The Indian Act is Full of Discrimination

So by now, everyone has heard of the McIvor case and knows that the registration provisions of the Indian Act, otherwise referred to as "status", will be amended as a result. The question remains: what are we going to do about the discrimination that won't be addressed by those amendments?

For anyone who hasn't heard of Sharon McIvor v. Canada - a brief overview of the case is necessary. Sharon McIvor is a status Indian and member of the Lower Nicola Band in British Columbia. However, she wasn't always a status Indian. For most of her life, she was a non-status Indian because she traced her ancestry through her maternal side. Had she been able to trace her ancestry through her paternal side, status would not have been a question.

In 1985 when Bill C-31 was passed and the Indian Act was amended, McIvor applied for status. When her application for status was denied by Indian and Northern Affairs Canada (INAC), she immediately appealed the decision to the Registrar at INAC. She later filed a claim in court alleging gender discrimination in section 6 of the Indian Act. While INAC had reconsidered her application and gave her status under section 6(1)(c) of the Indian Act, her son Jacob was only entitled to section 6(2) status and her grandchildren were not entitled at all.

It was for the sake of her grandchildren that she pursued the claim in court despite the fact that she was already registered. She argued that her inability to transmit Indian status to her grandchildren, while Indian men in her position could do so, amounted to gender discrimination. More importantly, she argued that registration as an Indian impacts both individual identity and communal membership and therefore stands for more than just access to programs and services.

At trial, the court agreed with McIvor and found that section 6 of the Act discriminated between the descendants of female Indians versus male Indians born before 1985 and thus violated section 15 of the Canadian Charter of Rights and Freedoms (Charter). The court crafted a complex remedy to fix the discrimination which might have been somewhat difficult to apply and would have left band membership unaffected. So, the matter was appealed.

The Court of Appeal for British Columbia agreed with the trial court that section 6 of the Act discriminated on the basis of sex (gender) contrary to section 15 of the Charter. The Court of Appeal found that the remedy at trial was too broad and seemed to limit the extent of the discrimination as between those affected by the double mother clause (children whose mother and paternal grandmother were non-Indians by birth) and Indian women who married out (married non-Indian men). The subsequent appeal to the Supreme Court of Canada was rejected.

Canada then embarked upon an "engagement" process - accepting submissions or comments from Aboriginal peoples and organizations, but not officially consulting with Aboriginal peoples. The process was also very rushed - from August to November 2009. Canada's reason for proceeding this way was due to the need to have legislation drafted before April 1, 2010. However, by proroguing Parliament, Canada's excuse that it needed to rush is somewhat questionable.

Canada offered two amendment options to Aboriginal peoples for consideration:

Specifically, the amendment concept under consideration would provide Indian registration under s. 6(2) of the Indian Act to any grandchild of a woman:

(a) who lost status due to marrying a non-Indian; and

(b) whose children born of that marriage had the grandchild with a non-Indian after September 4, 1951 (when the "double mother" rule was first included in the Indian Act).

To accomplish this, section 6(1) of the Indian Act would be amended to include any person in the situation of the "child" mentioned in (b) above.

A more narrow amendment concept, which the Government does not propose to pursue, would limit its application to situations where the woman's child (the subsequent parent of the grandchild with a non- Indian) was born before 1985.

In either case, the band membership provisions of the Indian Act would also be amended to include these registrants. McIvor has commented that these proposed amendments do not address the gender discrimination raised in her case. For example, the grandchildren of Indian women who married out will only be entitled to registration as an Indian under section 6(2). Yet, the grandchildren of Indian men who married out are registered under section 6(1).

What are we, as Aboriginal people going to do about the blatant gender discrimination that remains in the Act? Perhaps we need to think about pursuing the McIvor case in the international human rights forum. I don't think we have enough time to wait for multiple cases to each work their way through domestic courts as McIvor's case alone took over 24 years. Canada has too much a vested interest in our lands and resources to amend the Act in any meaningful way.

How many more generations of Aboriginal peoples will be denied their individual identities and be excluded from their communities because of Canada's discriminatory Indian Act if we wait another 10, 20, 50 years? How many more generations, like mine and my childrens' will miss out on desperately needed education assistance, medical benefits and the opportunity to contribute to the capacity and development of our communities?

McIvor's case only dealt with one small group of Aboriginal people who are discriminated against. There are numerous ways in which the registration provisions of the Act discriminate against Aboriginal peoples:

(1) Gender discrimination - An individual traces their Aboriginal ancestry through their maternal line (mother, grandmother, greatgrandmother) instead of through the paternal line (father, grandfather, greatgrandfather);

* Although the amendments to the Act in response to McIvor will address some of these people, it will not address of those affected by this kind of gender discrimination.

(2) Arbitrary cut-off date - The date on which a person was born means that some pre-1985 babies have status, but those born post-1985 may not;

(3) Illegitimate siblings - Brothers and sisters from the same family may or may not have status based on whether their parent was male or female and whether the child was male or female and born out of wedlock;

(4) Unstated paternity - If an unwed Indian woman does not name the father of her child, there is a legal presumption that the father did not have status - this results in the child having lesser or no status;

(5) Métis scrip takers - Aboriginal peoples who took scrip are not eligible for status regardless of their actual cultural identities as Indians versus Métis;

(6) Second generation cut-off - Indians may be refused status because one of their parents do not have status - this equates to a blood quantum requirement that discriminates against those children of mixed marriages;

(7) Non-Aboriginal preference - (a) Non-Aboriginal women who gained status through marriage are allowed to keep their status and pass on better status to their children than Aboriginal women and their children; (b) Adoptions - Non-Aboriginal children who are adopted into Indian families can have better status than Aboriginal children born of Indian parent(s).

As can be seen by the above, there are numerous discrimination issues that need to be addressed in the Act.

It is time for Canada to pull itself out of the dark ages, and put some action behind its apology. When Canada apologized for residential schools and the assimilatory attitudes upon which that policy was based - it seemed to forget that the Indian Act's status provisions were designed to assimilate Aboriginal peoples into the dominant society and continues to do so.

Canada does not have the right or authority to determine the individual or communal identities of Aboriginal peoples. Canada's authority under section 91(24) may give it the legislative jurisdiction to manage the relationship with "Indians and lands reserved for the Indians" but that does not confer a right to determine our identities. This is a right that is inherent to the right of Aboriginal peoples to be self-determining. Canada has negatively impacted our identities for generations - it's time we were able to heal and re-assert our own identities.

No where in out treaties did it say that there was a cut-off date for determining Aboriginality nor was registration even contemplated when our treaties were signed. It is time to assert our authority in this area. True Nations do not let other Nations tell them how to determine their own citizenship. Our treaties were negotiated by our ancestors for the benefit of our "heirs and heirs forever". It is time for Canada to undo the harm it has caused.

I believe that a whole-scale review of the Indian Act is necessary to bring all provisions of the Act in line with the Charter, the Canadian Human Rights Act, the Constitution Act and all international human rights covenants to which Canada is bound. Obviously, amendments to the Indian Act would be an interim solution until such time as modern treaty, land claim and/or self-government agreements have been negotiated. The only question is whether Canada is willing to put action behind its apology and whether Aboriginal people are ready to protect their future generations?

Thursday, February 11, 2010

Mohawks or Canada's Disappearing Indians?

The subject of racial purity is such a large one that it would be impossible to do it any justice in a simple blog. Similarly, the idea of using blood quantum to determine an individual's identity and right to belong to their community is so complex that all I can expect to accomplish with this blog is provide food for thought. However, for those who are interested, I am currently editing my book on this subject in the hopes of publishing it sometime in 2010.

Over the last few weeks, Aboriginal and non-Aboriginal media have picked up a story that strikes at the heart of what it means to be an Aboriginal person in Canada. Are Mohawks, Mi'kmaq, Cayuga, Cree and Maliseet the biological result of nothing more than a simple formula to determine one's blood purity - or does being Mohawk have more to do with common histories, ancestors, and territories or the sharing of common languages, customs, traditions and cultures? The Mohawk Indian Band Council in Kahnawake, through its Indian Act chief, Mike Delisle, have once again communicated the message that they are a blood club.

However, before I deal with the core issues, a little context is necessary. Kahnawake, unlike the majority of bands in Canada, post their membership rules on their website for all to see. Most bands who have their own membership codes do not post their codes publically and sometimes refuse to provide copies to their own band members and/or potential band members. By way of anecdote, I have been sending letters to my own band for several years attempting to obtain both a copy of their membership code and an application form so that my children and I can apply. My phone calls and letters continue to go unanswered. I share this experience with a great number of band members and potential band members who attempt to seek information from their communities to no avail. I have to give credit to Kahnawake for making their membership code public and easily accessible to their members and potential members alike.

According to the Indian Act, 1985, band membership is generally given to status Indians who are associated with a specific band upon their application to have their name entered on the band list. This list is maintained by Indian and Northern Affairs Canada (INAC). However, pursuant to section 10 of the Act, bands are permitted to enact their own membership codes and maintain their own band lists, so long as they have a community vote and the majority votes in favour of the code. Their initial code must be submitted to INAC for approval, but once that is done there is no further requirement for bands to submit updated or amended codes. It took me many years of dealing with INAC's Access to Information and Privacy (ATIP) process, but I was finally provided with all the band membership codes in Canada. Having read every single one, I can tell you that blood quantum is not a common criteria.

Getting back to the issue at hand, there have been numerous headlines about Kahnawake's decision to evict non-Mohawks. The key issue appears to be that Kahnawake has a rule that no non-Mohawks can live on their reserve. Yet, Mohawks are still marrying out, having common law relationships with non-Mohawks and having children with non-Mohawks. As a result, Kahnawake has delivered notices to a group of non-Mohawks advising them that they are to be evicted. Some of the headlines I have seen recently include:

"If you marry out, you move out"

"Why Mohawks evict non-Natives"

"Racism on the reserve"

"Kahnawake non-Mohawk eviction deadline looms"

"Mohawk Chief denies ethnic cleansing"

"Natives only please"

"Not Native, then leave reserve Mohawks say"

So, is it non-Mohawks who must leave the reserve, or non-Natives? If the answer is non-Mohawks, then what is a non-Mohawk? If it's non-Native, how does the inclusion of other non-Mohawk Aboriginal peoples (like Mi'kmaq) further Kahnawake's goal of Mohawk identity preservation?

One would assume that a non-Mohawk is a non-Aboriginal person. Many of the reports noted above appear to indicate this is the case. However, if this residency rule is applied "evenly", then it might also apply to Mohawks who don't meet the blood quantum requirement for band membership. But what about Aboriginal people who are not Mohawks? What happens if a Mohawk woman lives with a Mi'kmaq man?

Mi'kmaq people are not Mohawks. They have very different cultures, languages, customs, traditions and territories. Yet, it is my understanding that Mi'kmaq people who are married to Mohawks can apply to transfer their band membership from their Mi'kmaq band to the Kahnawake band. This is the same for any band member across the country. If this is the case, then what Kahnawake is really protecting is a generic "Indian" identity and not a Mohawk one after all.

More than that, the majority of Indian bands in Canada do not explicitly use blood quantum to determine membership. But they do use the Indian Act rules, which since 1985 include a second-generation cut-off rule which amounts to a blood quantum rule of 25% or 1/4 blood. It is quite foreseeable then, that an Aboriginal person who is a band member of some other reserve could transfer their membership to Kahnawake and become a "Mohawk" band member. This would mean that non-Mohawk Aboriginal people of less than 50% blood quantum could become "Mohawk" and have the right to live on Kahnawake, but actual Mohawk people with less than 50% blood quantum would be refused membership and possibly residency. Even worse, Mohawk band members who live with non-Mohawks could be forced to leave the reserve.

Setting aside the interests of non-Aboriginal people for one minute, Kahnawake's residency rules do little to advance Mohawk culture, and instead create situations of pain, heart-ache, division, exclusion, break-up of families, and loss of cultural connection. Not only is the rule an offence to the dignity of Mohawks who have non-Aboriginal partners, it is counter to their own Mohawk history, traditions and customs. The reserve could end up being comprised of "Mohawk" band members who are not Mohawk at all, while actual Mohawks must live off reserve.

In much of the research that I have read about Mohawk people, and especially that of Kahnawake, sources seem to indicate that Mohawks were traditionally very inclusive in terms of citizenship and as a result, have a high degree of mixed ancestries in their community. Gerald Alfred wrote about the identity struggles in Kahnawake in his book "Heeding the Voices of our Ancestors":

Kahnawake as a community had traditionally been extremely receptive to the integration of outsiders. Mission records from the early period of the community’s history confirm that Mohawks at Kahnawake had continued the practice of adopting and assimilating captives, resulting in a diverse racial mixture within the Mohawk community. Even into the modern era, Kahnawake Mohawks accepted many non-Native people through marriage and among those residents who came to enjoy community membership and later formal recognition of this membership through inclusion as status Indians when the Indian Act system was implemented in Kahnawake during the 20th century. (p.163)

Alfred explains that the community assimilated the racist ideas of the Indian Act in terms of what it meant to be an Indian - i.e. a Mohawk , and blended European notions of "race" with their desire to protect their cultural identity. As a result, some members of Kahnawake actually believe that blood quantum is the only way to protect their culture, despite the fact that this concept was completely alien to their traditional ways of viewing their identity and citizenship. Alfred concludes that part of the problem is that the community had not acknowledged the deep extent to which community members have internalized Indian Act ways of thinking and therefore do not realize that instead of rejecting the Indian Act, they are actually perpetuating it!

How can a community expect to protect its culture if they can so easily turn their backs on their own children and grandchildren? In my opinion, some (not all) community members and leaders have been under the dark cloud of colonialism for so long, that it is hard for them to see their identity through any other eye, than that of the federal government - who, as we all know, designed the Indian Act and its policies with a view to assimilating Aboriginal peoples based on racist conceptions of blood purity. Colonial policies were designed to divide communities and families and impose a generic "Indian" identity on all Aboriginal peoples with a legislated formula designed to ensure their eventual disappearance.

How ironic is it then, that the leaders in Kahnawake would adopt policies which accomplish the exact same thing? Kahnawake currently operates under the Indian Band Council governance system set forth under the Indian Act; it limits their territories with which they form an identity to the reserves that were created by Indian Affairs; they label their citizens as "band members" pursuant to the Indian Act, and they assert that the only real Mohawks are those with 50% Mohawk blood or more. In actual fact, Kahnawake's rules speed up the assimilation process much faster than even the Indian Act rules!

No wonder the Chief is worried that the federal government will walk on to their reserve one day and say "You're not Indians anymore". Using blood as the sole indicator of identity guarantees this eventuality. We are Nations within a Nation and our people will continue to live, love and interact with other Aboriginal and non-Aboriginal Nations. Intermarriage is a human right and fact of life. Perhaps it is time to acknowledge the damage done to our Aboriginal identities by Canada and the Indian Act; recognize how much of this racist thinking has been internalized to our ways of thinking about ourselves; and take steps to protect our real identities for the well-being of our present generations, for the benefit of our future generations, and to honour the identities of our ancestors.

Thursday, February 4, 2010

Aboriginal Peoples in NB not Consulted on Proposed Sale of NB Power to Québec

The Premier of New Brunswick (NB) announced in 2009 that NB had signed a Memorandum of Understanding (MOU) with Hydro-Québec that would involve the transfer/sale of NB Power and/or its assets to Québec (or part thereof). Premier Shawn Graham explained that this is necessary for all New Brunswickers: "By entering into this agreement, New Brunswick is securing access to affordable, clean hydroelectricity, which will make the province's economy more competitive and provide a cleaner environment for future generations of New Brunswickers." The obvious question being: do New Brunswickers feel the same way?

It is the province's goal to enter into a legal, binding agreement with Hydro-Québec by March 31, 2010. I fail to see how the Premier could possibly finalize an agreement with Hydro-Québec by March 31, 2010, if he also plans on informing Aboriginal communities about how this deal might impact their Aboriginal and treaty rights, including their land claims and also engaging in proper consultations with them. It is not as if he hasn't been given due notice that there are unresolved land claims in New Brunswick. Both on and off-reserve Mi'kmaq, Maliseet and Passamaquoddy peoples have informed NB about their land claims and that they expect to be consulted on decisions made by NB that could impact those claims and their Aboriginal and treaty rights.

Firstly, NB signed a bilateral agreement with the Mi'kmaq and Maliseet Chiefs that had as its goal (in part) to: "facilitate communication and consultation between First Nations Leaders and their constituents and between the Province and its citizens" on a wide variety of issues. The very first item listed for discussion and consultation is "Land and Resources". Given the reaction of the NB Chiefs in the recent media reports, it does not appear as if NB has lived up to its part of the deal.

Secondly, the New Brunswick Aboriginal Peoples (NBAPC) which represents Mi'kmaq, Maliseet and Passamaquoddy people living off-reserve in NB was not included in the above-mentioned bilateral agreement. However, that does not absolve NB of its legal obligations to inform the off-reserve Aboriginal peoples represented by the NBAPC of the implications of this proposed deal, consult with them and accommodate their interests and concerns. As this was not done, Frank Palmater, a Director of the NBAPC sent a letter to the Premier in November 2009 reminding him of their outstanding land claim and NB's legal obligation to consult with them before any decisions are made with regard to NB Power and its assets. It reads in part:

" As you know, the Mi’kmaq, Maliseet and Passamaquoddy Peoples in New Brunswick have never surrendered or ceded their traditional territories. They did not sign treaties which gave up rights to their lands, nor have they since settled a comprehensive land claim ceding their Aboriginal and treaty rights to their land in exchange for anything. In fact, as you also know, the NBAPC and other Aboriginal groups have received funding in the past to complete land claims research with a view to submitting a formal claim. All that was missing was the province of New Brunswick’s commitment to negotiate.

I refer you to the book, Our Land: The Maritimes: The Basis of the Indian Claim in the Maritime Provinces of Canada, edited by former President of the NBAPC, Gary Gould and his collaborator, Allan Semple. The book publically asserted both a historical and legal basis of Aboriginal title in New Brunswick. The NBAPC has also advocated on behalf of its members with regards to their claims to Aboriginal title in New Brunswick. The fact that the province of New Brunswick has ignored our claims does not mean that we have not made those claims and maintain them.

As you are aware, there are numerous legal cases that have been heard at the Supreme Court of Canada relating to fiduciary duty, the honour of the Crown and the duty to consult and accommodate with regards to Aboriginal peoples and their interests. ...This duty to consult and accommodate applies regardless of whether our Aboriginal title right has been confirmed in court of law. The duty is triggered when the province of New Brunswick has “real or constructive knowledge” of the “potential existence” of the Aboriginal right or title claimed.

Therefore, the province of New Brunswick must not only act honourably in all of its dealings with Aboriginal peoples, which includes the NBAPC, it must also consider both their historical and future relationship with Aboriginal peoples. This relationship has as its base, our treaties and our traditional lands upon which we currently share with the province. ...

Practically speaking, this means that our Aboriginal title to our traditional territories in New Brunswick act as a “burden” to the province’s title and, as such, it cannot be sold, traded and/or otherwise dealt with unless and until our underlying Aboriginal title claims have been addressed. In other words, you do not have the right to even consider the sale of NB Power and/or its assets to another province because NB Power and its assets sit on lands which are claimed by the Mi’kmaq, Maliseet and Passamaquoddy peoples in New Brunswick and the sale, trade or loan of NB Power and/or its assets can and will have a negative impact on our land claim once it is finally addressed. Moreover, it is also our understanding that there are various specific land claims relating to NB Power and/or its assets that have yet to be addressed. ...

Therefore, this letter will:

(1) Re-assert our long-standing claim to Aboriginal title in the lands traditionally used and/or occupied by the Mi’kmaq, Maliseet and Passamaquoddy in New Brunswick, a right which is protected by section 35 of the Constitution Act, 1982;

(2) Remind the Province of New Brunswick of its legal and moral obligations to act honourably and in good faith and to both consult with us and accommodate our interests with regards to the proposed sale of NB Power and/or its assets; and

(3) Request that the Province of New Brunswick meet with us immediately to establish a process to finally address our long-outstanding Aboriginal title claim as well as our treaty and other rights in New Brunswick, before considering the sale of NB Power and/or its assets."

The Premier promptly responded to this letter on December 7, 2009 by indicating that no binding agreement had yet been signed and that NB, would in fact, be meeting with the NBAPC on this issue within the "next few months". When the NBAPC failed to hear from the Premier, Frank Palmater sent another letter reminding him of the looming deadline and the province's legal obligations to consult. Now, the Chiefs of New Brunswick are also pointing out the lack of consultation.

For the benefit of all New Brunswickers: Aboriginal and non-Aboriginal, the Premier ought to slow down this run-away train and avoid a complete disaster (legally and politically) and take time to:

(1) properly inform communities about the specific implications of this proposed deal;

(2) consult in an appropriate manner; and

(3) accommodate the interests, rights and concerns raised during consultations.

Our land and resources are worth at least the time it takes to have this discussion.