[m2c] Sharon McIvor’s fight for gender equality in the Indian Act

Tue Apr 8 22:09:15 MDT 2008

http://briarpatchmagazine.com/2008/03/01/sharon-mcivor/

“any Indian woman marrying any other than an Indian, shall cease to be
an Indian”

Sharon McIvor’s fight for gender equality in the Indian Act

By Barbara Barker & Tyler McCreary
Briarpatch Magazine
March/April 2008

In June 2007, following generations of non-recognition, and 16 years
of intensely personal battles with bureaucrats, governments, and the
justice system, Sharon McIvor, a member of the Lower Nicola First
Nation, successfully challenged sex discrimination in the Indian Act
in British Columbia’s Supreme Court.

As one of thousands of Aboriginal women and their descendants who have
been denied Indian status by the Indian Act, Sharon McIvor, a
professor of Aboriginal law, feminist, and long-time activist devoted
to defending the rights of Aboriginal women, has fought tirelessly to
alter the oppressive legislation and ensure that her children and
grandchildren be recognized as Status Indians.

Sharon McIvor’s fight to change the Indian Act began in 1985. The
government had just amended the Act, ostensibly to remedy the gender
inequity that had previously stripped Indian status from Aboriginal
women who married men without status under the Indian Act, and from
their descendants. Indian men, in contrast, had long conferred status
upon whomever they married, and passed their status through their
lineage.

Within months of the amendments, McIvor applied along with her
children for registration as Status Indians of Lower Nicola Valley
band. In February 1987, she learned that rather than eliminating the
discrimination, the amendments simply postponed it for a couple of
generations.

Under the revised Act, Sharon McIvor, the daughter of an Indian woman
and a Non-status Indian man, could be recognized as a Status Indian,
but, following the same sexist logic of before, her children could
not. An important comparison to consider is the situation of McIvor’s
hypothetical cousin, the child of her status uncle and non-status
aunt: if her cousin married before 1985, he would have status, as
would his wife (regardless of whether she held status before marriage)
and children.

In May 1987, McIvor wrote a letter requesting a review of the
decision. In February 1989, nearly two years later, a reply came
upholding the denial of Indian status to her children. Later that
year, McIvor took her case to the British Columbia Supreme Court.

McIvor launched a Charter challenge alleging that the status
provisions in the Act were discriminatory as they preferred
descendants who traced their Indian ancestry along paternal lines over
those who traced ancestry along maternal lines. This time she would
wait almost two decades for a decision.

Just before McIvor’s case went to court in August 2006, the government
reversed its decision and amended the Crown’s statement of defence,
conceding that McIvor’s children were in fact eligible for recognition
as Status Indians.

The government noted that Sharon McIvor was an “illegitimate” child,
and at the time she was born, illegitimate children were assumed to be
Indian unless the paternity of the child was challenged and proven to
be non-status. Since her father’s status had never been challenged by
the Registrar, McIvor was in fact a Status Indian

As a Status Indian, McIvor was able to pass that status on to her
children. But, because McIvor had married a Non-status man, her own
children would not be able to pass on their Indian status to their
children. The status the government was offering to McIvor meant that
her children would essentially have half-status in that they could not
pass it on to other generations.

The government presumably hoped this last-minute concession would
placate McIvor and keep the sex discrimination challenge from
proceeding in the courts. Although McIvor’s son was finally recognized
as the Status Indian he was, she decided to press on with the
challenge for the sake of her grandchildren (still denied Indian
status) and all the other descendants of Aboriginal women who had
similarly lost status.

In June 2007, B.C. Supreme Court Justice Carol Ross rendered her
decision. Ross agreed with McIvor’s stance of so many years: the 1985
Indian Act status provisions, she found, contravene the Charter of
Rights and Freedoms, discriminating on the basis of sex and marriage.

Sharon McIvor’s challenge was supported by the federal government’s
Court Challenges Program - until Stephen Harper cut the program’s
funding in 2006.

Historically, the Indian Act had long been a tool used by the Canadian
government in its efforts to assimilate (”civilize”) Canada’s
Indigenous peoples. The Act conflated all the diverse nations of
Indigenous peoples into the administrative category of Indians,
imposing colonial forms of governance on their communities and setting
up strict rules to determine who could hold status as an Indian.

The various incarnations of this legislation functioned to overturn
centuries-old systems of governance and inheritance, which were often
matriarchal, and imposed supposedly civilized values that saw all the
property in a marriage-indeed, even the wife and children
themselves-as belonging to the man of the family.

While the initial 1850 Act for the Better Protection of the Lands and
Property of Indians in Lower Canada defined Indian broadly, including
those who married Indians or were adopted into Indian communities,
this breadth soon narrowed.

In the 1857 Act to Encourage the Gradual Civilization of Indian
Tribes, Indian men meeting specific criteria were offered
enfranchisement, stripping not only them, but also their wives and
children, of Indian status. This emphasis on the husband and father as
determinant of status expanded in subsequent legislation.

In the language of the 1869 Act for the Gradual Enfranchisement of
Indians and the Better Management of Indian Affairs, “any Indian woman
marrying any other than an Indian, shall cease to be Indian”-as would
the children of such a union.

By the 1876 Indian Act, male lineage became the sole determinant of
status. Status Indian women who married men without Indian status lost
status, while the wives of Status Indian men, even those without any
Aboriginal ancestry whatsoever, became Status Indians.

Because Indian status regulated access to on-reserve residence and
band support, these discriminatory provisions effectively banished
thousands of women and their children from their communities and
traditional homelands. This expulsion caused great psychological,
emotional and economic suffering, particularly when marriages broke
down and Aboriginal women were no longer allowed back to their home
reserve.

This was the case with Sandra Lovelace. Raised on a Maliseet reserve,
Lovelace had only been absent from her community for a few years
during the period of her marriage, but Canadian legislation denied her
both her identity and the right of return to her home. In December
1977, Sandra Lovelace filed a formal complaint against Canada to the
United Nations Human Rights Committee. In 1981, the committee ruled
that Canada was in violation of the International Covenant on Civil
and Political Rights for effectively denying Aboriginal women access
to their culture, religion and language.

The 1985 amendments were supposed to remedy all of this, but
ultimately served only to postpone the discrimination for a later
generation. Instead of eliminating discrimination, the 1985 amendments
simply incorporated the preference for male lineage into the new
regime.

Section 6(1)(a) of the Indian Act preserves full status for male
Indians who married non-Indian women, and for persons who, prior to
April 17, 1985, claim entitlement to registration through the male
line of descent and through marriage to a male Indian. But the revised
Act still withholds full section 6(1)(a) registration status from
McIvor and other women who married non-Indian men, and from their
children. Instead, Jacob Grismer, McIvor’s son, is relegated to 6(2)
status: he holds status himself, but is unable to pass it on to his
children unless he marries another Status Indian.

In the June 2007 ruling on McIvor’s case, Justice Ross declared the
discriminatory status provision “of no force and effect” because it is
inconsistent with the Charter. She found that the provision
“authorizes the differential treatment of Indian men and Indian women
born before April 17, 1985, and matrilineal and patrilineal
descendants born before April 17, 1985.”

Justice Ross wrote, “The evidence of the plaintiffs is that the
inability to be registered with full 6(1)(a) status because of the sex
of one’s parents or grandparents is insulting and hurtful and implies
that one’s female ancestors are deficient or less Indian than their
male contemporaries. The implication is that one’s lineage is
inferior. The implication for an Indian woman is that she is inferior,
less worthy of recognition.”

*

Prior to the 1985 amendments, Sharon and her children had never
applied for Indian status, knowing they did not qualify. When a woman
lost her status, she was forced to leave her home and her reserve. She
had to divest herself of any property she owned on the reserve, and
was precluded from inheriting reserve lands. McIvor testified to the
pain that she experienced due to her legal banishment from her
community:

“My family and I suffered various forms of hurt and stigmatization
because we did not have status cards. For example, members of my
family wanted to observe our traditional lifestyle including the
harvesting of berries, roots, and hunting and fishing . . . but
because we lacked status cards we were required to do it covertly.”

She further elaborated on the painful exclusions that her family
suffered from their community: “When I took my children to the annual
Aboriginal Christmas party, there were no presents under the community
tree for them because they were Non-status Indians. There are
recognition ceremonies for young people when they graduate from high
school. When my children graduated, there were no recognition
ceremonies for them because they are Non-status Indians. Through
incidents such as these I was made to feel the stigma that is attached
to Indian women who have Non-status children.”

After years of alienation from her own community, McIvor was further
dehumanized by having to continually fight to prove her identity and
that of her family to bureaucrats and judges, taxing both her
emotional and financial resources.

Unfortunately, McIvor’s costs do not stop here. The B.C. Supreme Court
decision is being appealed by the Crown, and is ultimately expected to
be resolved at the Supreme Court of Canada. This appeal will extend
the process for at least another three years, and will cost, at
minimum, a quarter of a million dollars.

Until recently, Sharon McIvor’s challenge was supported by the federal
government’s Court Challenges Program, which provided funding to
support court cases that advanced language and equality rights
guaranteed under Canada’s Constitution. But in 2006, Stephen Harper
cut the program’s funding, asserting that his government does “not
intend to pay Liberal lawyers to challenge unconstitutional laws.”

McIvor’s response? “I spent 16 years bringing the challenge forward. I
have experienced ongoing discrimination despite the federal
government’s statements that Bill C-31 [the 1985 amendments] addressed
the discrimination. In addition, the cost of bringing forward a
Charter challenge is very expensive. The recent announcement
cancelling the Court Challenges Program is a further blow to me and
anyone who wants to bring a Charter challenge to address
discrimination.”

This cancellation creates one more barrier for Sharon McIvor, who is
fighting not only for her own family but also for an estimated 300,000
people across Canada who have lost status because of the gender
discrimination in the Indian Act.

Barbara Barker is currently articling with the Indian Claims
Commission in Ottawa. Tyler McCreary teaches geography at the
Northwest Community College in northern B.C.

For information on how to donate to the Sharon McIvor Case Fund,
contact mcivorfund at rapereliefshelter.bc.ca. Cheques for the Sharon
McIvor Case Fund (made out to “Heenan, Blaikie, in trust for Sharon
McIvor”) can also be mailed to Heenan, Blaikie, Suite 2200, 1055 West
Hastings Street, Vancouver, B.C. V6E 2E9.

-- 
"Until all of us are free, the few who think they are remain tainted 
with enslavement." Lee Maracle
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