Herizons Commentary

End All Sexism in the Indian Act  by Penni Mitchell
End All Sexism in the Indian Act
There is a Cheyene saying, “A nation is not conquered until the hearts of its women are on the ground.”

Look around. It’s been 150 years since British colonies drew up the British North America Act to lay the groundwork for their nation, and Indigenous women are still fighting for their nationhood. Specifically, they’re taking aim at another colonial document, the Indian Act of 1876, and the sexism that’s excluded them from receiving Indian status on an equal basis for 141 years.

In April, Lynn Ghel, took on a provision of the Indian Act that undermined women’s right to pass on Indian status to their descendants—and won. The Ontario Court of Appeal granted Ghel Indian status, something the federal government said she couldn’t have because Ghel, who is Algonquin Anishinaabe, couldn’t prove who her paternal grandfather was.

The court found, quite simply, that the government’s refusal to grant Gehl status was “unreasonable.” Yet there’s nothing simple about conquering sexism that denies women an equal right to obtain status and it on status to their descendants.

Ghel’s case didn’t actually originate with original wording in the original Indian Act, but it was grounded in a 1985 amendment that denied a person status when paternity was unstated or listed as unknown on a birth certificate. The court agreed with Ghel that mothers may have legitimate reasons to keep the identity of a child’s father off of a birth certificate, especially in cases of rape, incest or abuse, or when a father has disavowed a child.

Ghel’s victory was important but the destructive power of sexism under the Indian Act remains. Ottawa is aware of this, and in October introduced Bill S-3, a bill to eliminate some, but not all, of the act’s discrimination, as a result of another case won by Indigenous women in 2015. When S-3 got to the Senate standing committee on Aboriginal peoples, Senator Marilou McPhedran, a former human rights lawyer, said enough is enough. She put forward an amendment to eliminate all of this remaining sexism in the Indian Act.

Indigenous activist and B.C.lawyer Sharon McIvor helped McPhedran win over the support of the Senate for the amendment. McIvor had brought her own constitutional challenge to the B.C. Court of Appeal in 2009, and she won a partial victory that extended Indian status to 40,000 descendants of Indigenous women.

The Senate passed McPhedran’s amendment, but Indigenous Affairs Minister Carolyn Bennett said no, Indigenous women will have to wait for further consultations before the remaining discrimination will be reversed.

An example of the Act's unfairness is that First Nations men who married non-status women prior to April 17, 1985, can pass on Indian status to their grandchildren and, in many cases, to their great-grandchildren as well. However, First Nations women who married non-status men prior to that date can pass on status only to grandchildren.

Ending gender discrimination is a critical step in decolonization. The Indian Act, from its inception, was an epic piece of legislative genocide designed to limit Indigenous identity and subjugate women to men. To put it another way, the BNA Act of 1867 sought to build up British colonial identity, while the Indian Act of 1876 set out to topple First Nations’ cultural and familial bonds. It stated, among other things, that First Nations men who married non-status women would confer Indian status to their children, while women who married non-status men would lose their status and therefore the right to confer status to their children.

An uprising launched by Mary Two-Axe Earley, a Mohawk woman, first drew attention to this issue in 1967, Canada’s Centennial of Confederation. But the practice wasn’t changed until the Charter of Rights equality provisions came into effect in 1985. Ottawa refused to apply gender equality principles throughout the Indian Act, and Indigenous women, including Sandra Lovelace and Sharon McIvor have appealed, with some success, to the United Nations to force Ottawa’s hand.

In the meantime, individual Indigenous women are forced to spend decades litigating each sexist section of the Indian Act. It is especially shameful that Ottawa rolled back the Senate’s amendment in weeks leading up to Ottawa’s own celebrations to mark Canada’s nationhood on July 1.

Unquestionably, the sexism embedded in the Indian Act has contributed to Indigenous women’s high rates of poverty, abuse and violence. The more than 1,300 Indigenous women and girls whose status is “disappeared” or “missing” is all the evidence needed to see how sexism, entwined with racism, can be deadly.

It's time for Ottawa to stop stonewalling and end all of the lingering gender discrimination in the Indian Act once and for all. 