Aboriginal Women at the Crossroads

By Jim West

In midst of the political activity surrounding the First Nations Governance Act, when it goes to the committee hearing stage this fall, it takes the future of hope of aboriginal women for new rights from across the nation.

Aboriginal self-government. Is it the vision of healthy, proud growing young generations of aboriginal youth growing to maturity, enjoying a full and happy life moving through a new rewarding full life? Or is it a contradiction in terms, a political oxymoron?

Or perhaps the hope of male-dominated band councils, whose increasing numbers are characterized by nepotism and corruption practices; (approximately one-third) leaving aboriginal women across Canada out of the loop of emergent First Nations governing structures.

First Nations women from across the nation are demanding a greater role in the changes in governance heralded by the First Nations Governance Initiative (FNGI), the INAC-driven reform of the archaic Indian Act, now on first reading before the House of Commons.

“We have to get women out there to deal with their own issues. We have to give them a vehicle to speak and be represented without being under the arms of the chiefs,” said Gail Sparrow, NAWA board member and former chief of Musqueam.

The history
Last October, the National Aboriginal Women’s Association (NAWA), was founded with a $225,000 federal grant to work with Indian Affairs in the federal governance initiative. And the issues of Canada’s aboriginal women are many as we shall see but first, a little history.

Aboriginal women have been systematically marginalized by the Indian Act from its inception because the act was primarily a means to assimilate all First Nations people through education and society.

Over the course of the next 100 years of the act’s existence, native women were displaced from the traditional circles of matrilineal prestige and power found in the potlatch, feasting, healing and motherhood. The creation of the band council system of aboriginal government paved the way for the male-dominated band councils we see today.

It is well known that native women who married non-status men lost their status and non-native women who married status Indian men gained status for themselves and their children.

In 1985, Bill C-31 amended the Indian Act to do four things:
- it rescinded the “enfranchisement” provisions of the old Indian Act and provided for the reinstatement of persons who lost their status as a result of those provisions;
- it did away with the partrilineal definition of eligibility for Indian status and replaced it with new gender neutral eligibility rules;
- it enabled bands to assume control of their band membership list on condition that they adopt a membership code that conforms to the bill; and,
- it allowed bands to deny membership to certain classes of status Indians who would otherwise be entitled to membership if control of the band list had continued to reside with INAC.

Since 1985, over 120,000 aboriginal people have regained status, the majority being aboriginal women who lost their status and their children.

The main focus of the bill was to make the Indian Act conform to section 15 of the Charter of Rights and Freedoms, to make men and women equal. It was widely anticipated that the passage of the bill would do away with the category of “non-status Indians” and in the future all Indians would be status and accorded the rights and benefits of status Indians.

Instead, Bill C-31 created two new classes of status Indians. Since 1985, all status Indians are now registered under section 6 of the Indian Act. Section 6 contains two subsections, sections 6(1) and section 6(2). A person must prove that he/she has two parents entitled to Indian status, then he/she would be registered under section 6(1). If a person has only one parent of Indian status, they are registered under section 6(2).

Those individuals registered under section 6(2) must marry a status Indian to pass the status on to their children. Section 6(2) thus creates a half Indian with its second generation cut-off clause. They are the growing numbers of “Ghost People” wrote Pam Paul, in her analysis of Bill C-31 entitled “The Politics of Legislated Identity” prepared for the Atlantic Policy Congress of First Nations Chiefs in September 1999.

“Currently, the “Ghost People” are children of the Bill C-31, 6(2) reinstatees. However, in one or two years when the children born after 1985 who are registered under section 6 (2) reach child-bearing age, and out-parent with a non-status person, the rise in the numbers of “Ghost People” will grow.”

Paul goes on to explain that because Bill C-31 also provided bands with the means to assume control over who had band membership and to establish rules for eligibility. Whereas before Indian status and band membership meant the same thing, Bill C-31 separated the two categories.

People who regained their status through Bill C-31 had to apply to the band if the band developed a membership code. Bands had until June 1987 to develop these membership codes if a community wanted to exclude section 6(2)’s from their membership codes; as a result, many codes were developed in a hurried fashion with little or no thought of the future consequences of the code.

A report prepared by the Parliamentary Research Branch in February 1996, entitled ‘Indian Status and Band Membership Issues’ by Jill Wherrett, noted that some Bill C-31 registrants were granted automatic band membership; others were granted conditional membership.

Membership codes vary
As of September 1995, 240 of the 608 bands had assumed control of their membership codes. Bands were now free to develop membership codes with criteria very different of federal rules for recognition of Indian status.

Some bands developed open code policies while others, resisting new members for a variety of reasons, adopted more restrictive codes. A review of 236 codes adopted by bands from June 1985 to May 1992 identifies four main types. These are:
-one-parent decent rules, whereby a person is eligible for membership based on the membership or eligibility of one parent;
- two-parent decent rules, where both of a person’s parents must be members or eligible for membership for that person to gain status;
- blood quantum rules, which base eligibility on the amount of Indian blood a person possesses (typically 50%);
- Indian Act rules, which base membership on sections 6(1) and 6(2) of the Indian Act.

Of the 236 codes, 38% used the one-parent rule, 28 % had the two-parent requirement, 13% had the blood quantum criteria, and 21% relied on the Indian Act rules, not adopting membership codes.

While the rights of bands to determine their own membership is viewed as an important step toward self-government, many women have had difficulties in exercising their rights as reinstated band members or in receiving services and benefits from their bands.

Soon after the passage of the bill, several cases came to light where women already living on-reserve lost some of their benefits because their bands refused to provide services to reinstated women and children until their band membership codes were passed.

In June 1995, the Canadian Human Rights Commission ordered the Montagnais du Lac-saint-Jean band council to pay damages to four women who had regained their status under Bill C-31.

Prior to the passage of the bill, the band council placed a moratorium on various rights and services for reinstated members until a membership code was in place. When the moratorium was later lifted, the commission ruled that the women were discriminated against.

Reluctance towards new members
There are a number of reasons why bands are reluctant to accept new members. Some are concerned about taking new members without guarantees of increased funding from government. There is a shortage of land, resources and housing.

Bands’ concerns over sharing scarce resources have been at the heart of the debate over membership. Band councils and aboriginal service providers resented the actions of government in imposing new members on limited financial and human resources and often displayed this resentment through unfair treatment of Bill C-31 registrants.

In some communities, the treatment was overt and took the form of outright refusal to accommodate the needs of new registrants. In other communities, more subtle actions made it clear that the new registrants they were simply not welcome.

Thus, over the years since Bill C-31 was passed, the issue of membership has become an issue of extreme controversy among First Nations communities, given the various recent rules governing the determination of membership and the benefits and services associated with that membership. In the long-term, the overall Indian will decline and the numbers of “ghost people” will rise considerably.

Several major court cases arose in the aftermath of Bill C-31, most notably the Corbiere decision and the Sawridge Band decisions of the Supreme Court of Canada.

The Corbiere decision
Corbiere addressed the rights of band members living off-reserve in voting in band elections that forced a fundamental change in how band elections are conducted.The Indian Act voting regulations were amended to comply with the Supreme Court of Canada decision in the case of John Corbiere et al. v. the Batchewana Indian Band and Her Majesty the Queen.

The Court ruled that the words, found in section 77 (1) of the Indian Act, “and is ordinarily resident on the reserve,” violated the Charter rights of off-reserve members of First Nations that hold their elections under the Indian Act.

This decision, known as the Corbiere decision, and resulting transitional amendments to the voting regulations, provide for First Nations holding elections or referendums under the Indian Act to permit members, living off reserve, to vote.

The Supreme Court provided 18 months for Canada to consult with First Nations and implement the decision. This time period expired on November 20, 2000.

Sawridge Band addressed the rights of reinstated women and the rights of band councils to determine membership and is the most significant decision to date on this issue.

Three Alberta bands challenged sections 8 to 14.3 of the Indian Act on the grounds these infringe upon the rights of Indian bands to determine their own membership, as protected by section 35 of the Constitution Act.

The bands also applied for a declaration stating that the imposition of additional members on the band constituted an interference on the latters’ rights under section 2(d) freedom of association section of the Charter.

In a July 7, 1995 decision, the court upheld the 1985 amendments contained in BillC-31, finding there were no existing aboriginal or treaty rights under section 35(1) to First Nation control over membership or they had been extinguished by section 35(4) of the Constitution Act, 1982, which guarantees aboriginal and treaty rights referred to in section 35(1) equally to aboriginal men and women.

Band challenges
The complexities of Indian status and band membership pose significant challenges for First Nations. The status rules introduced by Bill C-31, combined with band membership codes, have created different “classes” of Indians, a situation that is further complicated by residency on or off reserve.

As Clatworthy and Smith discuss in their study of the population implications of Bill C-31, membership codes based on one-parent descent rules will create band members without status who may exercise political rights associated with membership, but lack rights tied to Indian status. Two-parent descent rules will lead to Indians registered under both sections 6(1) and 6(2), but without membership and associated political rights.

The authors anticipate that within fifty years, two-parent codes may disenfranchise approximately half of those people with Indian status who are registered to First Nations with two-parent codes.(47)

In their view, “First Nations’ communities run the risk of encountering growing tensions and conflict around these inequalities. Distinctions between ‘classes’ are likely to become embedded in the social and political life of First Nations.”(48)

Jill Wherrett
Political and Social Affairs, February 1996

Then in 1999, the House of Commons passed Bill-49, the First Nations Land Management Act into law by a 117-45 vote.
Bill C-49 grants the participating 14 bands almost unlimited powers over the ownership, management, and expropriation of band lands.

The implications of Bill C-49 for the rights and positions of native women loomed large. It led to the court challenge launched against the federal government by the BC Native Women’s Society (supported by three major native organizations) to require that issues of native women’s rights be properly addressed before the enactment.

Property rights
In a February 2,1999, letter to the National Post, Wendy Lockhart-Lunderberg noted that “native women will bear the brunt of these legislative provision and will be denied protections they would have otherwise be afforded through treaties.”

“I think it’s shameful the government ignored aboriginal women in Canada,” Lockhart-Lundberg said in an interview shortly after Bill C-49 was passed.

“We do not have the same rights as all other women in Canada. I can’t inherit or pass-on land. If there is a divorce for native women, they do not have the same rights as all other women in Canada.”

What Lockhart is talking about is property rights. Under the Canadian constitution, provincial law governs the division of marriage assets upon marriage breakdown. But section 91(24) of the 1867 Constitution Act, confers exclusive legislative authority to the federal government in all matters dealing with the subject “Indians and lands reserved for the Indians.”

Therefore, with respect to the division of on-reserve property upon marriage breakdown, a court is not governed by provincial family law but by the federal Indian Act which contains no provisions for the division of marital property upon marriage breakdown.

The cumulative history of federal legislation has denied aboriginal women property and inheritance rights and has created the perception that women are not entitled to those rights. Most aboriginal women live on-reserve with their husbands until marriage breakup.

Therefore, it is a matter of historical and current fact that it is most likely to be the male partner who, under law, possesses on-reserve property.

The Supreme Court of Canada supported this perception in a 1986 decision that held, as a result of the Indian Act, a woman cannot possess or apply for a one-half interest in on-reserve property for which her husband holds a Certificate of Possession.

A woman may, at best, receive a an award of compensation to replace her half interest in on-reserve properties. Since possession of on-reserve property is an important factor in a woman’s ability to live on-reserve, the denial of interest in on-reserve family properties upon marriage breakup is to deny them their culture as aboriginal women and part of their identity.

Consider the example of Wendy Lockhart Lundberg of Richmond, BC, an off-reserve member of the Squamish Nation of North Vancouver and a board member of NAWA.

In 1947, her mother Nona Lockhart, married a non-native man and lost her status as an Indian. Nona ‘s father was Henry “Hawkeye” Baker, one of the famous North Shore lacrosse players, who passed away in 1968.

In his last will and testament, approved by Indian Affairs, Baker left his all off his assets and house on Squamish reserve. Despite having regained her status through Bill C-31 in 1988, Nona Lockhart has been refused inheritance to the house where she grew up by the Squamish band council and the decision stands to this day.

The original house has been torn down and replaced by a Sechelt band member who still lives there.

Despite repeated attempts, Nona Lockhart has never received compensation for the house willed to her legally by her father. Nona attempted to participate in programs and services, even applied for a house but has been all but ignored by the Squamish band council.

Her daughter Wendy regularly attended band meetings and she was not informed of the proposed changes encompassed in the 1999 amendments of Bill C49. Which also granted band councils the right to expropriate any land on reserve with only thirty days notice with appropriate compensation.

Wendy even traveled to Ottawa to make a formal presentation to the Senate Standing Committee on Aboriginal Peoples, on May 4, 1999, on behalf of her mother arguing that the new powers of expropriation may be used in her mother’s case.

Native women fear more discrimination
Many native women are fearful that aboriginal self-government as envisioned by the present male leadership is nothing more than a continuation of the discrimination and oppression from the male-dominated band councils.

In a March 2001 article by Rebecca Atkinson entitled “Native Women still far from Justice”, Atkinson argues that the widespread mistreatment of aboriginal women by their predominantly male leaders has forced aboriginal women to seek secure the same rights as other women through legislation resulting in what she calls “a 30-year gender war that has pitted the political aspirations of aboriginal leaders against the rights and needs of female band members.”

Native leadership, says Atkinson, views such attempts as an invitation to the federal government to interfere with self-determination (i.e. aboriginal self-government).

Writes Atkinson, “The gender struggle has translated into the suffering of native women under the current systems of government – through physical and sexual abuse, discriminatory restorative justice measures and unresolved gaps in federal policy.”

Angered by the discrimination, lack of accountability, abuses of power and outright physical abuse, in some cases, native women are standing up to the male domination, out from “under the arms of the chiefs,” at the risk of ostracism from their own reserves.

The problem stems from the control of band funds, direct transfers of multi-million dollar cash infusions each year sometimes referred to as a “lottery.”

“Aboriginal women don’t have a voice. The chief’s haven’t been truly representing us,” says Wendy Lockhart-Lundberg. ” Twenty top councillors and administrators earn approximately $2.5 million, tax free.”

NAWA hopes to ensure a right of return to reserves for aboriginal women in the First Nations Governance Act for aboriginal women married to non-aboriginals and address concerns regarding inheritance laws as exemplified in the Henry “Hawkeye” property case.

“We’re been a sleeping giant. We’re going to rise up and take our rightful place in society. Until now, we didn’t have the vehicle to be politically recognized.

“Well, now we’re here, we’re not going away and finally, women are going to have a voice,” said Sparrow,