POLITICS
COVER:
Thomas
King: Canada's Native Writer Tells His Story
BIOGRAPHY:
John
Trudell: Warrior-Poet Waxes on Bone Days
Margaret
Vickers: The Hand of Change
BUSINESS:
Casino
of the Rockies
Historic Milestone for Rambots Construction
CULTURE:
Grizzly
Bears Under the Gun - Again
EDUCATION:
A
Gathering of the Elders
ENVIRONMENT:
Government
of Quebec seeks to Divide Cree Nation and Foster Genocide
HISTORY:
Thomas
Prince: Canada's Forgotten Aboriginal War Hero
HUMOUR:
Bee in the Bonnet: Drum Beaters
POLITICS:
Civic
Aboriginal Leader First to Run for City Hall
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,