“Old wounds”: Descendants of families who lost their Indian identity 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 indigenous heritage.
Bennett directly understood the cruelty of the mandatory boarding school system and chose to give up his aboriginal status.
Now, Salmaniw is trying to reclaim her identity-she has been deprived of the identity of Bennett, her great-grandmother, and all their descendants.
“I believe that he made a mandatory decision to protect the children because he himself was forced to enter the boarding school and knew the atrocities and terror they would suffer if his children left,” Salmani said.
Salmaniw is one of 16 plaintiffs from three families who filed a constitutional challenge to the Supreme Court of British Columbia last month to end gender-based discrimination and the “voting rights” process that families continue to endure under the registration provisions of the Indian Act .
The right to vote is the process by which indigenous people obtain Canadian citizenship. By giving up their Indian status and treaty rights, they gained the right to vote, own property, and keep their children away from boarding schools.
The bill is considered voluntary by the federal government. The plaintiff argued that their family members were forced to obtain the right to vote.
“The Ultimate Action of Colonization”
The Canadian province passed a citizenship policy under the Progressive Civilization Act in 1857 and continued to implement it under the Indian Act of 1876 after the Commonwealth.
Until 1985 the Indian Act was amended to make it consistent with the Canadian Charter of Rights and Freedoms, the right to vote still existed.
The plaintiffs argued that the consequences of the invalidation policy violated their rights to freedom and security under the Charter.
Although Salmaniw has Haida citizenship under Haida national laws and is a citizen of the Alaska Ringgit and Haida Central Committee, she is still deprived of her Indian status due to the registration requirements of the Indian Act.
“Received a rejection letter saying that you are not an aboriginal. When you know this is part of you, it will have a profound impact on you,” Salmaniw said.
“I believe this just opened up the old wounds and continued to exacerbate the injuries my great-grandfather suffered while in boarding school…this is a final act of colonization.”
The court’s challenge also addressed what the plaintiff said was a lingering element of gender discrimination in identity law. According to the old Indian Act, when an identified Indian woman marries, she loses the right to determine what happens to her status.
If she marries a man with no identity, she automatically loses her identity. If she marries an Indian man with status and her husband is given the right to vote, she and any unmarried children will automatically be deprived of their Indian status.
Ottawa passed a series of legislative reforms to gradually allow women and their descendants to regain the status they lost due to marriage-the most recent was the passage of Bill S-3 in 2017, a bill to amend the Indian Act In response to the Supreme Court of Quebec Decheno C. Canada.
However, the offspring of women who have lost their status due to the deprivation of their Indian husbands are still barred from regaining their status.
“Obviously, this is discrimination based on gender,” said Ryan Beaton, a Vancouver lawyer from Juristes Power.
“Today it was imposed on future generations just as it was imposed on other types of offspring. It is difficult to understand why Canada has not yet decided to solve this problem.”
The federal government has not yet responded to the constitutional challenge in court.
But in a media statement, the Office of Indigenous Services Minister Mark Miller wrote that it is working with First Nations partners including the Canadian Indigenous Women’s Association and the First Nations Parliament to further modify the legislation.
The statement said: “We are aware of this challenge and realize that despite the elimination of gender-based inequality in the registration terms, the residual impact of years of gender-based inequality can still be felt in today’s registration environment. “
“In addition, we are committed to continuing to work with the indigenous people to resolve the non-gender-based inequality that still exists in the Indian Act today.”
Aboriginal Services Canada is also implementing a Decision of the Quebec High Court in 2020It found that under the Indian Act of 1952, women cannot be granted the right to vote voluntarily.
Ottawa claims that it eliminates all known gender-based inequalities in the Indian bill registration, but Beaton insists that thousands of family members may be affected by the case.
Reclaim the aboriginal heritage
Kathryn Fournier knew from a young age that she was an aboriginal and her grandfather was granted the right to vote. She said that she felt trapped “between two worlds.”
Fournier’s grandparents were survivors of a boarding school in Manitoba. However, this is not the reason why her grandfather Maurice Sanderson applied for the right to vote in 1922. Fournier said he wanted the right to vote and to own property, which is prohibited by the Indian Act.
“He made a very difficult choice that shouldn’t have been imposed on him,” she said. “I will not judge him in any way.”
When the law was changed in 1985, Fournier and her mother were able to regain their identities, but her three children could not because of the existing registration regulations.
The Indian Act contains different levels of status. Since her mother came from both parents, her identity can only be passed on to her children, not her grandchildren.
“One thing I have always hoped is that my own children can also declare their indigenous identity and indigenous heritage in a formal and recognized way,” Fournier said.
Fournier has worked in the Canadian Department of Indian and Northern Affairs for more than 20 years.
“Working there is a challenge because I know that the right to vote my family has gone through may be one of the possibly more shocking things that the India Act does, and it is not recognized within the department,” Fournier Say.
“But I think, as most of the indigenous civil servants working there, we try to focus on things that can be changed.”
The plaintiff did not seek damages. They said they prefer to resolve problems through negotiation rather than through litigation.
“We will go back to what the government is trying to make us not be,” Fournier said
“I think this is the most important part, the sense of belonging and being able to say formally and formally,’This is who I am.'”