Who is an Indian?

The issue of who is an Indian made its way through the House of Commons last week and is now before the Senate in the form of Bill C-3. The Government of Canada according to a court order from the Court of Appeal has until January 31, 2011 to fix the provisions in the Indian Act that the court struck down. Bill C-3 is the government’s attempt to fix that.

On April 6, 2009, the BC Court of Appeal decided that sections 6(1)(a) and 6(1)(c) were of no force and effect. What do those sections say?

s. 6(1)(a) gives status to all people who were registered as Indians or entitled to be registered before April 17, 1985. Basically anyone who is over 25 and was registered as an Indian or could be registered.

s. 6(1)(c) gives status to the woman who married out and lost their status upon marriage to a non Indian and other people who were reinstated in 1985 like the children affected by the double mother rule. (Double mother rule was that if an Indian man married a white woman, and the son of that marriage also married a white woman, their children at 21 lost their status. Crazy I know and I always say, who thinks of such things?) I always found this a strange effect of the court case that was brought by Sharon McIvor. She was fighting to give status to her grandchildren and ends up getting a court order that could take away her own status that woman fought so long to regain. It was never her intent but it is what the court decided to do. So if the legislation is not amended, the effect will be that Sharon McIvor and other woman who married out would lose their status again.

The court in making sections 6(1)(a) and (c) of the Indian Act of no force and effect means that if the Federal government does not fix the legislation is all those people who were registered as Indians under these two sections would no longer be able to be entitled to be Indians-there would be no provision giving status to people who have always had status. The registrar could strike them off as members as there is no section to give them status. Whether the registrar would do this is unknown but can you imagine if DFO or wildlife officers started charging your members on the basis that they did not have status? And if the court says the section is of no force and effect, then the section would be meaningless and could not grant status. Therefore this is really critical to fix.

So what does Bill C-3 really do in amending the Indian Act? First it puts the sections 6(1)(a) and 6(1)(c) back into the Indian Act so there is no danger of people who have status to lose it and allows their descendants to rely on their registration.

Secondly, the children of the woman who married out and children of the double mother persons now get full status. They are no longer section 6(2) Indians and have the ability to pass on their status to their children regardless of whether the father of their children is Indian or not. Those children will be section 6(1) Indians if the father of the children has status as well. But if the father of those children is not status, those children (or grandchildren of the woman who married out) are section 6(2) Indians. This means if you are a section 6(2) Indian that unless you have children with someone who is an Indian, your children will not have status.

So using the Sharon McIvor case as the example, Sharon McIvor’s children become full status under section 6(1) and can pass their status to their children. The grandchildren will get their status under Bill C-3, but whether her great grandchildren will have status will depend on whether they have children with a status Indian. If the grandchildren marry a non Indian, their children will not have status. This makes Sharon McIvor and her children and grandchildren equal with a man who always retained his status regardless of who he married.

What Bill C-3 also does is to protect the government and the Chief and Council from being sued by a person who will get their status under the amended Indian Act. So if you are a grandchild of a woman who married out and wanted to sue someone because you were deprived of education and health benefits or a home on reserve all your life, or you could not exercise aboriginal rights, you cannot get damages from the government or your First Nation. This was the big controversy last spring when Bill C-3 was before the House of Commons and the Liberals, NDP and Bloc wanted to take this out of the Bill. This would have been very problematic for First Nations as where would they get money to pay damages. First Nations have never had control over the Indian Act and any fault should lie with the Federal Government. Those parties have now withdrawn their objections, largely in part I would think based on the Court of Appeal’s direction in July that the government had to make Bill C-3 a priority and to fix the offending sections as soon as possible.

There are still issues with Bill C-3 for many First Nations people. The main issue is that the Indian Act does not register the children of people registered under s. 6(2) if they do not have children with an Indian.This means there will always be a cut off of registration of Indians based on who you have children with. The act will now treat the children and grandchildren of woman who married out and double mother persons equally, but for everyone, there is a chance that great grandchildren will not be registered and what will happen to the number of First Nations people registered as Indians?

The government has offered more talks after Bill C-3 is approved to discuss this at greater length. Discussions around membership and who is an Indian has been on the books for a very long time and getting the government to act on this issue is a difficult one. The government knows that for every status Indian, they have to provide funding and benefits for so it is in their best interests to reduce that number. This is very clear in the treaties that the federal and provincial governments have negotiated to date. The only provision that survives the treaty is the membership sections of the Indian Act that determines who is an Indian. Under the treaty, First Nations can add anyone they want to their nations but unless those people have status, the federal government will not provide funding for them. Therefore depending on the citizenship provisions of the treaty, the First Nations may be funding a large part of their membership that does not have status as their citizenry goes beyond those who have status. This is okay as long as you have enough revenues to do so.

The National Chief has been calling to end the Indian Act in 3-5 years. So far I have not seen a plan on how he intends to do that. I know since the early 70’s I have been part of protests calling for an end to the Indian Act and often chanting “burn the Indian Act’. It has long been a goal of the First Nations leaders across the country. Here in BC, many First Nations have been negotiating treaties for over 17years so that we can get rid of the Indian Act. Some such as the Sechelt and Westbank First Nations have negotiated legislation that gets them into their own self governing arrangements. If it was an easy task, treaties would have been settled a long time ago. The big issues that stop negotiations is how will a First Nations hold their lands? Province and Canada want them to be held as fee simple lands, private, not federal with a few added benefits to it. Most of the treaty tables have rejected that approach because of the extinguishment of aboriginal title issues. Another big issue is governance. The federal and provincial governments still want to be big brother and keep an oversight and have their arms reaching into our government structures and this has been unacceptable to many First Nations. Membership is again an issue with many and the governments want to dictate status and who has to be on a membership list. Taxation is of course one of the biggest show stoppers in treaty. Governments want First Nations to pay taxes on land and everything. For many communities who live in poverty, how would this be possible? Many First Nations need time to get their communities into a place where they can be on par with other communities economically and socially before thinking of taxation. I could go on for a long time about what is in the Indian Act and how complicated it is to get rid of it. It is doable, but the federal government and First Nations do not see eye to eye on how that can be done so it would be interesting to see the strategy and action plan the National Chief has on how it can be done within that timeframe.

In the meantime, the House of Commons and Senate is determining who is an Indian instead of First Nations and that in itself is not acceptable to any of us. The United Nations Declaration on the Rights of Indigenous Peoples, article 9, which has now been endorsed by the federal government says “Indigenous peoples and individuals have the right to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.” The Canadian Government needs to heed the provisions of this section. Need I say more?

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