10.Kenn Harper, “Portagee: The Inuktitut Word for Black Person,” http://www.nunatsiaqonline.ca/stories/article/65674taissumani_feb._1.
11.“Chinese-Canadians and First Nations: 150 Years of Shared Experiences,” http://www.chinese-firstnations-relations.ca/bibliography.html. Here, you will find an excellent bibliography of resources on Chinese-First Nations relationships, particularly in British Columbia.
12.“Black, Red and Proud,” http://www.theroot.com/articles/culture/2011/02/black_and_native_american_an_interview_with_radmilla_cody.1.html. This is an interview with Radmilla Cody describing the backlash she experienced as a Black and Indigenous person, when she ran for Miss Navajo Nation.
13.“Offerings to the Holy People: Former Miss Navajo Radmilla Cody takes speaking tour to Berkeley,” http://navajotimes.com/entertainment/2012/0312/032312rad.php.
14.“Radmilla Cody: biography,” http://radmillacody.net/biography.html.
15.“Black History Month in Indian Country,” http://lastrealindians.com/black-history-month-in-indian-country/.
16.Sheila Watt-Cloutier, The Right to Be Cold: One Woman’s Story of Protecting Her Culture, the Arctic and the Whole Planet (Toronto: Penguin, 2015), 4.
PART 2
Culture and Identity
3
Got Status?
Indian Status in Canada
If, like most people in Canada, you have no idea how Indian status works, don’t feel too bad. The system of deciding who does and who does not have status is as deliberately convoluted and confusing as any system out there. To hear some tell the tale, a status card is a magical relic bestowing upon the bearer: tax exemptions, free gas,1 new trucks, houses, and pretty much anything else under the sun dreamed up during a particular flight of fancy. Many people believe anyone identifying or identified as Aboriginal automatically receives a status card. As status is linked to supposed benefits received by Indigenous peoples, it is important to clarify what it actually is.
To begin, let’s define what status isn’t. Indian status is not a system created or enforced by Indigenous peoples themselves. Indian status is not the same as Indigenous identity. It is an administrative category created and applied by the federal government of Canada. Indigenous peoples have no control over how Indian status is defined legally. At best, Indigenous peoples have been able to battle the federal government in Canadian courts to force small changes to the way status is defined.
There are some terms that need exploring in order to untangle what status is, and what it is not, as well as clarifying other categories you may come across. Some of these were looked at in the first section on terminology, but some will be new. These are the terms you’ll find in this chapter:
Indigenous
Aboriginal
status Indian
registered Indian
non-status Indian
Métis
Inuit
First Nations
Bill C-31 Indians
Bill C-3 Indians
band membership
treaty Indians
Obviously, I want to focus specifically on the Canadian context. Since I’m trying to clarify the terms used, in this chapter I’m going to avoid using them interchangeably even though I tend to do this elsewhere. When speaking generally, I will use the term Indigenous or Native. When referring to specific legal definitions, I will use the legislated terms. This chapter focuses mainly on status, and does not delve into definitions of Inuit or Métis.
Status versus membership
Status is a legal definition used to refer to First Nations who are under federal jurisdiction and the Indian Act. Federal jurisdiction over “Indians, and Lands reserved for the Indians” was set up in our first Constitution, the Constitution Act, 1867, in section 91(24).2 This division of powers between federal and provincial/territorial governments is a hugely important detail that will be a constant refrain throughout this book; I’d like you to always keep it in mind in these discussions.
The particular piece of federal legislation that defines status is the Indian Act,3 which was created in 1876 and has been updated many times since then. Status can be held only by those Indigenous peoples who fit the definition laid out in the Indian Act.
Membership is a much more complex issue. It can refer to a set of rules (traditional or not) created by an Indigenous community that defines who is a member of that community. It can refer to rules under the Indian Act that define who is a member of a community to which the Indian Act applies. It can also refer to those who are considered members of certain regional or national Indigenous organizations. It can also be used in a much less formal and subjective sense, such as being part of an urban or rural Native group. So, unlike status, membership can refer to any number of things.
Obviously, these definitions will overlap at times. The most important thing to note is that having membership is not the same as having status. For example, I am a member of the Métis Nation of Alberta. I am not a status Indian.
Who is Aboriginal?
The term Aboriginal came into legal existence in 1982 when it was defined in section 35 of the Constitution Act, 1982.4 Section 35(2) defines Aboriginal peoples as including “the Indian, Inuit and Métis peoples of Canada.” It is a general, catchall term that has gained legal status in Canada and, therefore, is particular to the Canadian context.
The Constitution Act, 1982, does not define Indian, Inuit, or Métis. The definitions have been fleshed out in other pieces of legislation, in court decisions, and in policy manuals, and have changed significantly over the years. Thus, you will see these terms used in different ways depending on how old your sources are, or what period of time is being discussed, and so on, adding to the general confusion about the meaning of these categories.
The first thing to understand is that being an Aboriginal person does not mean one has legal status; status is held only by Indians as defined in the Indian Act.
Status Indians and registered Indians
Status Indians are persons who, under the Indian Act, are registered or are entitled to be registered as Indians. For this reason, status Indians are also sometimes referred to as “registered Indians,” and these terms are interchangeable. It may seem a bit redundant that an Indian is someone who is entitled to be an Indian, but let this highlight the artificial nature of the category itself. The Canadian government basically takes the position that, “you’re an Indian if we say you’re an Indian.” If this seems like a vague definition, I’d like to stress that it is not. In fact, the definition of who is a status Indian is incredibly detailed, which tends to make understanding it even more difficult.5 Adding to the confusion, the definitions have been changed many times over the years.6
Not all status Indians are actually Indigenous (more on that in a bit), and there are many Indigenous peoples who do not have status. Status Indians are not the only Indians (First Nations) that exist. Non-status Indians are those who, through various pieces of legislation, lost their status, or were never eligible for status because their parents or grandparents lost status. Non-status Indians are still Indigenous; lack of status does not change this.
All registered Indians have their names on the Indian roll, which is administered by Indian Affairs.7 Yes, the Indian roll is an actual list of names, less reminiscent of Santa Claus and more evocative of a legion of bored Indian Affairs clerks with quills. This department administers programs and services that apply only to status Indians.
Of the estimated 1.4 million Aboriginal peoples in Canada in 2011, roughly 637 660 are status Indians, which represents 1.9 percent of the total population of Canada. Non-status Indians account for 25 percent of all First Nations peoples, and status Indians represent only about 45 percent of all Aboriginal peoples in Canada.8
It is important to clarify again that the Indian Act does not apply to Indigenous peoples who are not status Indians. Despite a 1939 Supreme Court ruling that Inuit are “Indians,” this only meant the Inuit are a federal concern u
nder s. 91(24) of the Constitution Act, 1867, not that they are considered status Indians.9 In 2016, in Daniels v. Canada, the Supreme Court found that Métis and non-status Indians are also Indians as per section 91(24).10 This is an issue of determining whether responsibility for Métis and non-status Indians falls to the federal or provincial/territorial governments. The Daniels decision does not create more status Indians, and it is unclear yet how such a ruling will impact Métis and non-status Indians.
Bill C-31 and status
There were various federal policies over the years that caused status Indians to be removed from the Indian roll. Some lost status when they earned a university degree, joined the armed forces or the priesthood, gained fee-simple title of land, or married a non-Indian (this last one applied only to women). One minute you were legally an Indian, and the next you weren’t. Magic! This process was rather cruelly labelled “enfranchisement,” a term usually positive in nature. For non-Indigenous peoples, enfranchisement was often viewed as victory over exclusion, the recognition of full rights of citizenship, including the ability to vote. For Indigenous peoples, enfranchisement was the often nonconsensual process through which federal recognition of Indians was withdrawn. With that withdrawal of recognition came an end to constitutional responsibility. Enfranchisement was a concrete way to assimilate Indigenous peoples out of legislative existence, extinguish their rights, and solidify colonial control over lands and resources.
Bill C-3111 was passed in 1985 as an amendment to the Indian Act and was intended to bring the Indian Act into line with gender-equality provisions under the Charter of Rights and Freedoms, as well as end the process of enfranchisement.12 In particular, the Bill was supposed to reverse sexual discrimination that had caused Indian women who married non-Indians to lose their status, while men who married non-Indian women not only kept their status but also passed status on to their non-Indian wives.
Read that over if you need to. For 116 years, under the old provisions of the Indian Act, Indigenous women and their children were specifically targeted for loss of status while non-Native women could become registered Indians! All based on who they married. Today, there are over 26 000 non-Native women who have status gained through marriage to a status Indian man before 1985.13 They did not lose this legal status with the Indian Act amendment, but the ability to “become Indian” via marriage ended.
Bill C-31 added new categories to the Indian Act, defining who is a status Indian, and who will be a status Indian in the future. Enfranchisement was traded in for a process that continues to legislate Indians out of legal existence.
The current legislation does not specifically refer to any sort of blood quantum; therefore, there is no official policy that would take into account half or quarter Indian ancestry. Nonetheless, ancestry continues to be a determining factor in who is a status Indian.
Section 6 of the Indian Act identifies two categories of status Indians, called 6(1) and 6(2) Indians. Both categories provide full status; there is no such thing as half status – it’s all or nothing. The categories determine whether the children of a status Indian will have status or not.
This might be a good time to get a coffee, because this next bit is always confusing for people.
Look at this again. Two generations of out-marriage. That is all it takes to completely lose status. It does not matter if you raise your grandchildren in your Native culture. It does not matter if they speak your language and know your customs. If you married someone without status, and your grandchildren have a non-status parent, your grandchildren are no longer considered Indian; not legally.
To be honest, it is amazing there are any status Indians left in this country.
Bill C-31: Way to not fix sexism!
One of the most criticized aspects of Bill C-31 was that it did not actually reverse the sexism inherent in denying women status if they married a non-status man.
Women who had their Indian status reinstated under Bill C-31 had 6(1) status, but their children were given 6(2) status. They would not pass status onto their children unless they married another status Indian. That makes sense according to the charts above, right?
The problem is that Indian men who married non-Indian women actually passed on Indian status to their previously non-status wives. Thus, the children of those unions have 6(1) status, and can pass status onto their children. The children of Bill C-31 children were still being penalized based on the gender of their parent who had status stripped and then reinstated.
Sharon McIvor and Bill C-3: Gender equity in Indian Registration Act
Sharon McIvor launched an epic court battle to address the problems with Bill C-31 and the Indian Act.14 In response, a Bill was introduced to Parliament for First Reading in March 2010. The full title of this Bill is: An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).15
Bill C-3 was given Royal Assent on 15 December 2010 and came into force (became law) on 31 January 2011. A great many grandchildren of women who regained status under Bill C-31 (but who passed on only 6(2) status to their children) can now regain their 6(2) status if they choose to, and are willing to, go through the confusing process of applying for it.
Band membership
There are a number of sub-categories that can apply to status Indians. One of these categories is band membership. No, not that kind of band.16 In anthropology, a band is:
…a small group of related people, who are primarily organized through family bonds. Foraging typifies the subsistence technology. A respected and older person may be looked to for leadership, but the person has no formalized authority.17
It is impossible to ignore the anthropological (and patronizing) connotations to the use of this term for First Nations communities, but we’ll get to that later on. Suffice it to say, the anthropological definition isn’t that helpful.
Legally, in Canada, a band is defined as a group of Indians for whom land has been set aside (a reserve), or who have been declared a band by the Governor General (no reserve).18 A band might have a number of reserves, but can also have no land reserved at all.19 Think of a band as the people themselves.
Some status Indians have membership in a band, and some do not. Again, it is important to note this is an administrative category created by the federal government, not traditional groupings of Indigenous peoples. The colonial government did not just come in and document what already existed. In fact, in some cases, bands were created with no thought to traditional groupings at all, and people from different First Nations were thrown together and renamed homogeneously with no regard for how this impacted kinship ties.
Before Bill C-31, having Indian status automatically gave you band membership entitling you to the rights and benefits as a member. Bill C-31 gave bands the ability to stay under the Indian Act band membership rules (which conferred automatic membership along with status), or bands could choose to make their own rules regarding membership. The latter included deciding who would be entitled to rights and benefits as members.
With one hand, the federal government was offering the reinstatement of status to women (and their children) who had been denied it due to the sexist provisions of the Indian Act. With the other hand, bands were being offered the ability to create new membership rules, denying membership to those who had their status reinstated, or restricting what rights and benefits they would receive if they did become members. In some cases, women who finally had their status restored, and who wished to return to their home communities, were turned away by newly minted membership codes that kept them out.
This was not an easy choice for First Nations communities. There was no guarantee from the federal government that funding would be increased to account for reinstated members who wanted to return to the community. Already, communities were grappling with shortages of resources, land, housing, infrastructure, and services. The idea of dozens, even hun
dreds, of people returning to dip into the depleted funding pot was daunting. Whether the federal government intended to create this conflict or not through uncertainty, the conflict existed and had immediate impacts.
Thus, you can have status Indians who have no band membership, just as you can have non-status Indians who do have band membership. Being a status Indian is no longer a guarantee you will be a member of a band.
Bill C-3 Indians face the same problems as Bill C-31 Indians did. Having status does not necessarily mean they will be able to live on-reserve or get band membership. The pros and cons of this are hotly debated, so I’m going to back away slowly and not touch that, except to point out there were no and are no adequate plans to make federal funding responsive to the influx of those with newly acquired status under either Bill.
Reserves
Related to band membership, another subcategory is between reserve and non-reserve Indians. This does not refer to whether one actually lives on the reserve, but rather describes whether an Indian is affiliated with a reserve. These are people who have access to a reserve and the right to live there if they choose.
To confuse the matter (as usual), this is not always the way on- and off-reserve Indians are counted. Sometimes the count only factors in where someone actually lives, rather than whether they are affiliated with a reserve or not. So, keep that in mind when looking at statistics. Depending on how those statistics address this issue, the numbers will vary.
Even though no historic treaties were signed in British Columbia, there are many reserves, while in the Northwest Territories, which is covered by a Numbered Treaty, there are no reserves. I also pointed out above that you can have membership in a band that doesn’t have a reserve at all.
Indigenous Writes Page 4