“Old wounds”: descendants of families who lost Indian status launch Charter challenge
In 1944, Nadia Salmaniw’s great-grandfather, Wilfred Laurier Bennett, faced a choice: send his children to boarding school or give up his Aboriginal heritage.
Knowing firsthand the cruelties of the compulsory residential school system, Bennett chose to relinquish his First Nation status.
Now Salmaniw is trying to get her status back – which has been taken away from Bennett, his great-grandmother, and all of their descendants.
“He made, I believe, a forced decision to protect his children because he himself had been forced to go to residential school and knew the atrocities and horrors his children would have endured if they had left,” he said. said Salmaniw.
Salmaniw is one of 16 plaintiffs from three families who filed a constitutional challenge last month in the British Columbia Supreme Court to end gender discrimination and the process of “emancipation” that families continue to suffer under the registration provisions of the Indian Act.
Emancipation was a process by which First Nations people could obtain Canadian citizenship. By renouncing their Indian status and treaty rights, they gained the right to vote, own property, and keep their children out of residential schools.
The law was considered voluntary by the federal government. The plaintiffs claim that their families were forced into emancipation.
“Ultimate act of colonization”
The policy of emancipation was adopted in 1857 under the Progressive Civilization Act in the province of Canada and continued after Confederation under the Indian Act of 1876.
Emancipation remained in place until amendments were made to the Indian Act in 1985 to bring it into line with the Canadian Charter of Rights and Freedoms.
The applicants argue that the consequences of this defunct policy violate their Charter rights to liberty and security.
Although Salmaniw has Haida citizenship under the laws of the Haida Nation and is a citizen of the Central Council of the Tlingit and Haida Tribes of Alaska, she continues to be denied Indian status due to the registration provisions of the Indian Act.
“Receiving a rejection letter saying that you are not native when you know it is part of who you are is deeply, deeply impactful,” said Salmaniw.
“I believe it just reopened the old wounds and continued to reinforce the hurt that was inflicted on my great-grandfather during the residential school days… What a final act of colonization.
“Simple as day” discrimination based on sex
The court challenge also targets what complainants say is a lingering element of gender discrimination in statute law. Under the old Indian Act, when a Status Indian married, she lost the right to decide what happened to her status.
If she married a man without status, she automatically lost her status. If she married a Status Indian and her husband was emancipated, she and all unmarried children automatically lost their Indian status.
Ottawa has gradually enabled women and their descendants to regain status lost by marriage through a series of legislative changes – the most recent in 2017 with Bill S-3, An Act to Amend the Indian Act in Response to judgment Descheneaux c. Canada.
But descendants of women who have lost their status because their status Indian husbands have been emancipated still cannot claim their status.
“It is clear that this is discrimination on the basis of sex,” said Vancouver lawyer Ryan Beaton of Lawyers Power.
“It is imposed on descendants today in the same way it was imposed on the other category of descendants. It is difficult to understand why Canada has not yet decided to tackle this problem.
The federal government has yet to file a response to the constitutional challenge in court.
But in a media statement, the office of Indigenous Services Minister Marc Miller wrote that it was working with First Nations partners, including the Native Women’s Association of Canada and the Assembly of First Nations, on other legislative changes.
“We are aware of the challenge and recognize that the residual impacts of years of gender-based inequities continue to be felt in the context of registration today, despite the elimination of gender-based inequalities in institutions. registration arrangements, “the statement read.
“In addition, we are committed to continuing to work with First Nations to address the non-gender inequalities that remain in the Indian Act today.
Indigenous Services Canada is also implementing a 2020 Quebec Superior Court decision, which found that a woman could not be voluntarily emancipated under the Indian Act of 1952.
Ottawa claims to have eliminated all known inequalities based on gender in the Indian Act registration, but Beaton insists that several thousand family members could be affected by this case.
Reclaiming Indigenous Heritage
As someone who grew up knowing that she was indigenous and that her grandfather had been emancipated, Kathryn Fournier said she felt like she was stuck “between two worlds”.
Fournier’s grandparents were survivors of residential schools in Manitoba. This is not why his grandfather Maurice Sanderson requested emancipation in 1922, however; Fournier said he wanted the right to vote and to own property, which was prohibited under the Indian Act.
“He made a very difficult choice that shouldn’t have been forced on him in the first place,” she said. “I don’t judge him for that in any way.”
When the law changed in 1985, Fournier and his mother were able to regain their status, but her three children were unable to do so due to existing registration provisions.
The Indian Act contains different levels of status. As her mother came from emancipated parents, her status could only be passed on to her children, not to her grandchildren.
“One of the things I had always hoped for was that my own children could also claim their Indigenous identity and Indigenous heritage in a formal and recognized way,” Fournier said.
Fournier worked at the Department of Indian Affairs and Northern Development for over 20 years.
“It was a challenge to work there knowing that the empowerment my family had gone through was one of perhaps the most egregious things the Indian Act had done and that there was no had no recognition of this within the ministry, ”Fournier said.
“But I think, like most of the native officials who worked there, we tried to focus on what could be changed. “
The plaintiffs are not asking for damages. They say their preference is to negotiate ways to resolve the issue instead of having it argued.
“We are becoming again what the government tried to make us no longer be,” Fournier said.
“I think that’s the important part, and that feeling of belonging and being able to say officially and quite formally, ‘This is who I am. “”