The Debate Over 'Status' Among Canadian Native Indians

Tu Tangata, Issue 28, 1 February 1986, Page 46

The Debate Over 'Status' Among Canadian Native Indians

Augie Fleras Department of Sociology University of Waterloo, Waterloo, Canada

TRAGEDY: Not so much a conflict between what is right and what is wrong, but rather a conflict between equally valid yet mutually opposed versions of what is right.

Those in Canada who are legally defined as Indians are governed under the statutes of the Indian Act (1876, 1951). 1 In recent years, certain provisions of the Act have attracted considerable controversy because of their paternalistic and discriminatory nature. Of particular note is Section 12(l)(b) which penalises Indian women who marry non Indians, while Indian males in parallel situations do not lose their status, but transfer it instead to their non Indian wives and children. 2 Recent attempts by the government to repeal this discriminatory section of the Indian Act have encountered a live-

ly opposition, especially among status Indian groups who regard any legislative change in this area as an infringement upon their right to self-de-termination. Yet passage of the Charter of Human Rights and Freedoms in 1982 prohibits any discrimination against individuals on the basis of sex, race, or marital status. The government, accordingly, finds itself on the horns of a dilemma. Caught between a commitment to individual rights and equality on the one hand, and the endorsement of collective rights and special status for Indians on the other. Whether or not the government can resolve these

apparently irreconcilable rights without alienating some sector of Native society, is not promising as the moment of decision draws nearer.

The aim of this paper is to examine the controversy over the status of non status Indian women in light of recent attempts by the government to eliminate the discriminatory sections of the Indian Act. I shall argue that efforts to resolve the issue of collective versus individual rights has placed government authorities in a vulnerable position for which any sensible resolution may be well beyond reach. As such, the implications for New Zealand are only too obvious where similar controversies have emerged recently (see, for example, the article ‘Te Herenga Waka: the Place of Protocol, New Zealand Listener, 3 November 1984). To achieve this objective the paper is divided into three sections. The first part outlines the historical background which denied Indian women their status upon marriage to a non Indian. The second section reviews the arguments for and against the repeal of section 12(1 )(b) of the Indian Act. This is followed by a discussion over the problem of retroactive reinstatement of legal status for non status Indian women. The third and final section demonstrates how the government is rendered helpless when attempting to reconcile these mutually opposed yet equally valid claims presented by the Native sector. Government inability to arrive at a satisfactory solution illustrates the contemporary dilemma faced by political authorities throughout the world (including New Zealand) where similar battle lines are being drawn up over the issue of minority versus individual rights.

Part 1 Towards Discrimination: the Historical Context

Unlike in New Zealand where any descendant of the New Zealand Maori is legally defined as Maori by the government, Native Indians in Canada are conferred legal status (‘status Indians') under the provisions of the Indian Act. To be defined as a status Indian in Canada is not without consequence, since a large number of benefits and services emanate from the government by virtue of this special relationship. But according to the Indian Act, status Indians can lose their standing for a variety of reasons, one of the most common involving marriage between status and non status Indians.

Section 12(l)(b) of the Indian Act stipulates that any Indian woman who marries a non Indian extinguishes her registered rights as an Indian. She can no longer reside on the reserve or share of its services and revenues. 3 Nor does she have the right to participate in band affairs, inherit property from her parents, collect royalties on land claims

and mineral finds, or even return to the reserve in case of divorce or death. This provision, not only severs her access to social amenities from the government, but cuts off mother and child from relatives and friends as well. Yet the converse is not true. A male status Indian who marries a non status Indian loses neither his status nor access to band resources. On the contrary, he retains his status while his wife and children are likewise formally invested with (a) legal status, (b) eligibility for federal benefits and (c) entitlement to band assets. Even in divorce, the woman and her offspring retain the right to live on the reserve and collect their endowment as status Indians.

The rationale behind Section 12(1 )(b) is logical, historically speaking, given the acceptance of assimilation as government policy toward Native Indians during the nineteenth century. Assimilation as policy aimed at eliminating the cultural basis of Indian society through sustained exposure to the moral and social virtues of Europe. To facilitate the Europeanisation of the Indian, the government established a system of reserves in keeping with the protectionist mentality of the day. But problems appeared regarding the issue of eligibility of residence on reserves. The government for one was worried that marriage to non Indian males, coupled with the related right of residence on the reserve, would lead to European domination over community affairs. As a consequence, Indian communities would be prevented from attaining the degree of self-sufficiency anticipated by the government. Subsequent government efforts to transform Indians into productive and prosperous farmers also would be thwarted by the existence of unscrupulous whites, interested solely in buying Indian reserve land as cheaply as possible. Indian leaders similarly concurred with the government over perception of white males as an imposition on the band’s resources and autonomy. In short, both parties were anxious to keep the reserves free of male white settlers, although the influx of non Indian women was not envisaged as detrimental to the livelihood and survival of the band community. That being the case, the solution lay in section 12(1 )(b): reclassify the Indian spouses of non-Indian males as ‘whites’ and pre-empt both their right to reserve residency and band inheritance.

Part 2 Towards Redefinition of Non Status Indian Women

This state of affairs persisted quietly for nearly a century. During that period of time, Indian women paid a heavy price for marrying outside their ‘status’. Between 1920 and 1980, nearly 15,000 women and 45,000 children were automatically enfranchised (conferred non Indian status) through inter-

marriage. In some cases the transfer was accepted without question; in other situations such as those of divorce or widowhood, these women were cut adrift, separated and suspended between the world of whites and that of the reserve. But with the emergence of Native rights movements and women's liberation during the 1960’5, non status Indian women began to criticise the validity of section 12(1 )(b). According to them, not only were non status Indian women deprived unfairly of federally funded social programmes in health, education and housing, but they and their children were also denied access to the cultural heritage which rightfully belonged to them. In order, therefore, to promote favourable changes in legislation, these women took their case to the Courts without significant success. Later they turned to the political arena where the issue was finally lodged at the United Nations level.

But non status Indian women failed to receive much support from status Indian organisations in their quest to repeal section 12(1 )(b). The reluctance among status Indians to embrace this cause was understandable for several reasons. First, if section 12(1 )(b) was shown to be discriminatory and in violation of basic human rights, other portions of the Indian Act could likewise come under scrutiny. Any subsequent termination of their special status as entrenched by the Indian Act, would result in further deterioration of Indian social and economic standing, already far below that of mainstream standards. Second, status Indians found practical reasons for rejecting moves to repeal section 12(1 )(b). Fears existed that elimination of this provision, followed by steps to reinstate retroactively those Indian women who had lost their status because of intermarriage, would impose an enormous financial burden on band communities, many of which were constrained by limited resources, services and space. Third, if the offending section were to be repealed, band communities would lose the right to retain control over membership and entry onto the reserve. This loss of self-determination over their social and cultural destiny could not be tolerated, particularly in light of Constitutional concessions to protect their treaty and aboriginal rights. In light of such unfavourable implications, status Indians were inclined to endorse the discriminatory provisions of the Act, even at the expense of suspending the rights of women for equal treatment. For as one prominent spokesperson for Status Indians, Harold Cardinal, admitted in confessing to the dilemma:

We do not want the Indian Act retained because it is a good piece of legislation; it isn’t. It is discriminatory from start to finish. But... we

would rather continue to live in bondage under the inequitable Indian Act than surrender our s acred rights. Against this background wherein Indian women are victims of a law that discriminates against them on the grounds of race, sex, and marital status, the controversy over section 12 has been interpreted as a struggle between the collective rights of Indians (Indian Act) and the individual rights of women (Canadian Human Rights Bill). For some, the rights of certain individuals must on occasion be sacrificed in order to promote the survival of the endangered group. The Assembly of First Nations (formerly the National Indian Brotherhood) and the Native Women's Association of Canada are in the vanguard of this movement. Priority, they suggest, does not reside with the rights of individual Indians (who it is felt knew exactly what was entailed in marrying outside their status) but rather with the issue of Indian self-de-termination over band membership and allocation of resources. But for others the fundamental rights of each person, as stipulated in the Bill of Rights, take precedence. Any legislation such as section 12(l)(b) which deprives any individual of their guarantee for equality before the law, is discriminatory and unjust. Even appeals for the enhancement of group survival and integrity are insufficient to compromise the basic right of individuals for legal equality.

At another level the issue is seen as a contest between the firmly entrenched privileges of men and the long neglected rights of women. To the outsider, this statement is apparent more so in light of a pervasive male orientation underlying both the band councils and the National Indian Brotherhood. If, after all, male Indians were honest and consistent in their espousal of Indian rights, would they not exclude themselves from status upon marriage to non status Indians? Yet in refusing to consider a rewrite of the discriminatory passage, status Indians have cornered themselves into defending male privilege to the disadvantages of Indian women. While this interpretation is one dimensional, it does highlight the complexity involved in attempting to resolve the issue.

Part 3 The Politics Over the Status of Non Status Indian Women

For nearly a century following the passage of the Indian Act in 1876, Indian women have been subject to laws that discriminate against them on the basis of sex, race, and marital status. But by the early 1970’5, non status Indian women had turned to the courts in an attempt to overturn the inherent bias found in section 12(l)(b). They argued that because male status Indians did not relinquish their legal standing through intermarriage, the Act

was discriminatory and contravened the Canadian Bill of Rights. To test their claim, a non status Ojibwa Indian woman, Jeanette Lavelle, took her case to the Supreme Court where she won a temporary court order for reinstatement. Promptly, organisations representing 325,000 status Indians joined forces with the federal government to appeal the verdict. Amidst worries of being inundated by whites on their reserves, especially by males who would take advantage of privileges intended solely for Indian use, Indian band councils and their national body, the National Indian Brotherhood, came out firmly in support of the Act and section 12(l)(b). When the Supreme Court reversed its earlier decision, womens' groups emerged to continue the fight for equality and reinstatement of status for enfranchised women. Political pressure was exerted on the government, most notably through submission of a petition with the United Nations Human Rights Committee. The United Nations Committee later ruled that by upholding section 12(1 )(b) of the Indian Act, the Canadian government had in fact violated the International Covent on Civil and Political Rights to which Canada was a signatory. Alarmed and embarrassed by this decision from a respected international body, the Canadian government indicated a willingness to suspend section 12(1 )(b) in 1981, with or without consent of the status Indians. Proceedings to remove the offensive sections of the Indian Act were initiated by the government, when band councils were given the option of bypassing section 12(1 )(b), if they so desired. However, only 46 of the 573 decided to accept this concession. Government good faith to amend the discriminatory passages was further affirmed in December of 1981 when Canada ratified the United Nations Convention on the Elimination of All Forms of Discrimination. In June of 1983, the former Minister of Indian Affairs, John Munro, intro-

duced a bill to amend discriminatory provisions of the Indian Act by retroactively reinstating the lost status of non status Indian women. Status Indian groups again reacted vociferously to what they perceived as an infringement upon their rights as a minority group. Conferral of retroactive status for non status Indian women, they argued, contravened the right of Indian control over band membership and ultimately their survival as a culturally distinct minority. Predictably, the bill failed to pass Senate approval and died.

The new Minister, David Crombie, is equally committed to amend these discriminatory sections, especially since section 12(1 )(b) will become illegal once the equality provisions of the Canadian Charter of Rights and Freedoms comes into effect in April of this year. Section 15(1) of the Charter reads:

Every individual is equal before and under the law and has right to the equal protection and equal benefit of the law without discrimination and, in par-

ticular, without discrimination based on race, national or ethnic origin, colour. religion, sex, age or mental or physical disability. But at the same time, Mr Crombie has expressed support for the principle of band control both over membership and reinstatement of non status Indian women. His endorsement is reinforced by section 25 of the Charter of Rights in the Constitution Act. 1982. which contains a clause wherein “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed". Under the circumstances, the dilemma is obvious: To what extent is the unique and special status of status Indian compatible with the equality provisions set out within the same Constitution Act? How the government will rule on this issue of competing rights remains a mystery at this point. Nevertheless, because both of these positions appear to be equally valid, the conflict between special rights and equality on the one hand, and that of individual versus group rights on the other, is complex and impervious to easy solutions. 4

Footnotes (1) The Indian Act is a binding and legal document which among other directives has established who can be defined as a status Indian Canada, who can receive its corresponding rights and amenities, and what exactly are the obligations of the government toward status Indians.

(2) For administrative purposes the Canadian government makes a distinction between status and non status Indians. Status Indians possess a special relationship with the federal government which confers upon them benefits and services normally outside the range available to the general population. Non status Indians are likewise excluded from special federal recognition, although racially and culturally they are Indian.

(3) Reservations are tracts of land which have been set aside for, Indian use and over which the band exercises a degree of control. During the 19th century, reserves were envisaged as agricultural settlements suitable for the supervision of Indian communities and their indoctrination into the saving graces of Western civilisation. They were also destined to prevent unscrupulous white settlers from squatting or illegally buying up the land. As a result of this apprehension, the government tried to restrict rules of residence to those who would pose a threat to the integrity and resources of the reserve. (4) Information for this paper is derived entirely from secondary sources, with particular emphasis on a series of newspaper articles which appeared in the Toronto Globe and Mail during December of 1984.