So by now, everyone has heard of the McIvor case and knows that the registration provisions of the Indian Act, otherwise referred to as "status", will be amended as a result. The question remains: what are we going to do about the discrimination that won't be addressed by those amendments?
For anyone who hasn't heard of Sharon McIvor v. Canada - a brief overview of the case is necessary. Sharon McIvor is a status Indian and member of the Lower Nicola Band in British Columbia. However, she wasn't always a status Indian. For most of her life, she was a non-status Indian because she traced her ancestry through her maternal side. Had she been able to trace her ancestry through her paternal side, status would not have been a question.
In 1985 when Bill C-31 was passed and the Indian Act was amended, McIvor applied for status. When her application for status was denied by Indian and Northern Affairs Canada (INAC), she immediately appealed the decision to the Registrar at INAC. She later filed a claim in court alleging gender discrimination in section 6 of the Indian Act. While INAC had reconsidered her application and gave her status under section 6(1)(c) of the Indian Act, her son Jacob was only entitled to section 6(2) status and her grandchildren were not entitled at all.
It was for the sake of her grandchildren that she pursued the claim in court despite the fact that she was already registered. She argued that her inability to transmit Indian status to her grandchildren, while Indian men in her position could do so, amounted to gender discrimination. More importantly, she argued that registration as an Indian impacts both individual identity and communal membership and therefore stands for more than just access to programs and services.
At trial, the court agreed with McIvor and found that section 6 of the Act discriminated between the descendants of female Indians versus male Indians born before 1985 and thus violated section 15 of the Canadian Charter of Rights and Freedoms (Charter). The court crafted a complex remedy to fix the discrimination which might have been somewhat difficult to apply and would have left band membership unaffected. So, the matter was appealed.
The Court of Appeal for British Columbia agreed with the trial court that section 6 of the Act discriminated on the basis of sex (gender) contrary to section 15 of the Charter. The Court of Appeal found that the remedy at trial was too broad and seemed to limit the extent of the discrimination as between those affected by the double mother clause (children whose mother and paternal grandmother were non-Indians by birth) and Indian women who married out (married non-Indian men). The subsequent appeal to the Supreme Court of Canada was rejected.
Canada then embarked upon an "engagement" process - accepting submissions or comments from Aboriginal peoples and organizations, but not officially consulting with Aboriginal peoples. The process was also very rushed - from August to November 2009. Canada's reason for proceeding this way was due to the need to have legislation drafted before April 1, 2010. However, by proroguing Parliament, Canada's excuse that it needed to rush is somewhat questionable.
Canada offered two amendment options to Aboriginal peoples for consideration:
Specifically, the amendment concept under consideration would provide Indian registration under s. 6(2) of the Indian Act to any grandchild of a woman:
(a) who lost status due to marrying a non-Indian; and
(b) whose children born of that marriage had the grandchild with a non-Indian after September 4, 1951 (when the "double mother" rule was first included in the Indian Act).
To accomplish this, section 6(1) of the Indian Act would be amended to include any person in the situation of the "child" mentioned in (b) above.
A more narrow amendment concept, which the Government does not propose to pursue, would limit its application to situations where the woman's child (the subsequent parent of the grandchild with a non- Indian) was born before 1985.
In either case, the band membership provisions of the Indian Act would also be amended to include these registrants. McIvor has commented that these proposed amendments do not address the gender discrimination raised in her case. For example, the grandchildren of Indian women who married out will only be entitled to registration as an Indian under section 6(2). Yet, the grandchildren of Indian men who married out are registered under section 6(1).
What are we, as Aboriginal people going to do about the blatant gender discrimination that remains in the Act? Perhaps we need to think about pursuing the McIvor case in the international human rights forum. I don't think we have enough time to wait for multiple cases to each work their way through domestic courts as McIvor's case alone took over 24 years. Canada has too much a vested interest in our lands and resources to amend the Act in any meaningful way.
How many more generations of Aboriginal peoples will be denied their individual identities and be excluded from their communities because of Canada's discriminatory Indian Act if we wait another 10, 20, 50 years? How many more generations, like mine and my childrens' will miss out on desperately needed education assistance, medical benefits and the opportunity to contribute to the capacity and development of our communities?
McIvor's case only dealt with one small group of Aboriginal people who are discriminated against. There are numerous ways in which the registration provisions of the Act discriminate against Aboriginal peoples:
(1) Gender discrimination - An individual traces their Aboriginal ancestry through their maternal line (mother, grandmother, greatgrandmother) instead of through the paternal line (father, grandfather, greatgrandfather);
* Although the amendments to the Act in response to McIvor will address some of these people, it will not address of those affected by this kind of gender discrimination.
(2) Arbitrary cut-off date - The date on which a person was born means that some pre-1985 babies have status, but those born post-1985 may not;
(3) Illegitimate siblings - Brothers and sisters from the same family may or may not have status based on whether their parent was male or female and whether the child was male or female and born out of wedlock;
(4) Unstated paternity - If an unwed Indian woman does not name the father of her child, there is a legal presumption that the father did not have status - this results in the child having lesser or no status;
(5) Métis scrip takers - Aboriginal peoples who took scrip are not eligible for status regardless of their actual cultural identities as Indians versus Métis;
(6) Second generation cut-off - Indians may be refused status because one of their parents do not have status - this equates to a blood quantum requirement that discriminates against those children of mixed marriages;
(7) Non-Aboriginal preference - (a) Non-Aboriginal women who gained status through marriage are allowed to keep their status and pass on better status to their children than Aboriginal women and their children; (b) Adoptions - Non-Aboriginal children who are adopted into Indian families can have better status than Aboriginal children born of Indian parent(s).
As can be seen by the above, there are numerous discrimination issues that need to be addressed in the Act.
It is time for Canada to pull itself out of the dark ages, and put some action behind its apology. When Canada apologized for residential schools and the assimilatory attitudes upon which that policy was based - it seemed to forget that the Indian Act's status provisions were designed to assimilate Aboriginal peoples into the dominant society and continues to do so.
Canada does not have the right or authority to determine the individual or communal identities of Aboriginal peoples. Canada's authority under section 91(24) may give it the legislative jurisdiction to manage the relationship with "Indians and lands reserved for the Indians" but that does not confer a right to determine our identities. This is a right that is inherent to the right of Aboriginal peoples to be self-determining. Canada has negatively impacted our identities for generations - it's time we were able to heal and re-assert our own identities.
No where in out treaties did it say that there was a cut-off date for determining Aboriginality nor was registration even contemplated when our treaties were signed. It is time to assert our authority in this area. True Nations do not let other Nations tell them how to determine their own citizenship. Our treaties were negotiated by our ancestors for the benefit of our "heirs and heirs forever". It is time for Canada to undo the harm it has caused.
I believe that a whole-scale review of the Indian Act is necessary to bring all provisions of the Act in line with the Charter, the Canadian Human Rights Act, the Constitution Act and all international human rights covenants to which Canada is bound. Obviously, amendments to the Indian Act would be an interim solution until such time as modern treaty, land claim and/or self-government agreements have been negotiated. The only question is whether Canada is willing to put action behind its apology and whether Aboriginal people are ready to protect their future generations?
Monday, February 22, 2010
Thursday, February 11, 2010
Mohawks or Canada's Disappearing Indians?
The subject of racial purity is such a large one that it would be impossible to do it any justice in a simple blog. Similarly, the idea of using blood quantum to determine an individual's identity and right to belong to their community is so complex that all I can expect to accomplish with this blog is provide food for thought. However, for those who are interested, I am currently editing my book on this subject in the hopes of publishing it sometime in 2010.
Over the last few weeks, Aboriginal and non-Aboriginal media have picked up a story that strikes at the heart of what it means to be an Aboriginal person in Canada. Are Mohawks, Mi'kmaq, Cayuga, Cree and Maliseet the biological result of nothing more than a simple formula to determine one's blood purity - or does being Mohawk have more to do with common histories, ancestors, and territories or the sharing of common languages, customs, traditions and cultures? The Mohawk Indian Band Council in Kahnawake, through its Indian Act chief, Mike Delisle, have once again communicated the message that they are a blood club.
However, before I deal with the core issues, a little context is necessary. Kahnawake, unlike the majority of bands in Canada, post their membership rules on their website for all to see. Most bands who have their own membership codes do not post their codes publically and sometimes refuse to provide copies to their own band members and/or potential band members. By way of anecdote, I have been sending letters to my own band for several years attempting to obtain both a copy of their membership code and an application form so that my children and I can apply. My phone calls and letters continue to go unanswered. I share this experience with a great number of band members and potential band members who attempt to seek information from their communities to no avail. I have to give credit to Kahnawake for making their membership code public and easily accessible to their members and potential members alike.
According to the Indian Act, 1985, band membership is generally given to status Indians who are associated with a specific band upon their application to have their name entered on the band list. This list is maintained by Indian and Northern Affairs Canada (INAC). However, pursuant to section 10 of the Act, bands are permitted to enact their own membership codes and maintain their own band lists, so long as they have a community vote and the majority votes in favour of the code. Their initial code must be submitted to INAC for approval, but once that is done there is no further requirement for bands to submit updated or amended codes. It took me many years of dealing with INAC's Access to Information and Privacy (ATIP) process, but I was finally provided with all the band membership codes in Canada. Having read every single one, I can tell you that blood quantum is not a common criteria.
Getting back to the issue at hand, there have been numerous headlines about Kahnawake's decision to evict non-Mohawks. The key issue appears to be that Kahnawake has a rule that no non-Mohawks can live on their reserve. Yet, Mohawks are still marrying out, having common law relationships with non-Mohawks and having children with non-Mohawks. As a result, Kahnawake has delivered notices to a group of non-Mohawks advising them that they are to be evicted. Some of the headlines I have seen recently include:
"If you marry out, you move out"
"Why Mohawks evict non-Natives"
"Racism on the reserve"
"Kahnawake non-Mohawk eviction deadline looms"
"Mohawk Chief denies ethnic cleansing"
"Natives only please"
"Not Native, then leave reserve Mohawks say"
So, is it non-Mohawks who must leave the reserve, or non-Natives? If the answer is non-Mohawks, then what is a non-Mohawk? If it's non-Native, how does the inclusion of other non-Mohawk Aboriginal peoples (like Mi'kmaq) further Kahnawake's goal of Mohawk identity preservation?
One would assume that a non-Mohawk is a non-Aboriginal person. Many of the reports noted above appear to indicate this is the case. However, if this residency rule is applied "evenly", then it might also apply to Mohawks who don't meet the blood quantum requirement for band membership. But what about Aboriginal people who are not Mohawks? What happens if a Mohawk woman lives with a Mi'kmaq man?
Mi'kmaq people are not Mohawks. They have very different cultures, languages, customs, traditions and territories. Yet, it is my understanding that Mi'kmaq people who are married to Mohawks can apply to transfer their band membership from their Mi'kmaq band to the Kahnawake band. This is the same for any band member across the country. If this is the case, then what Kahnawake is really protecting is a generic "Indian" identity and not a Mohawk one after all.
More than that, the majority of Indian bands in Canada do not explicitly use blood quantum to determine membership. But they do use the Indian Act rules, which since 1985 include a second-generation cut-off rule which amounts to a blood quantum rule of 25% or 1/4 blood. It is quite foreseeable then, that an Aboriginal person who is a band member of some other reserve could transfer their membership to Kahnawake and become a "Mohawk" band member. This would mean that non-Mohawk Aboriginal people of less than 50% blood quantum could become "Mohawk" and have the right to live on Kahnawake, but actual Mohawk people with less than 50% blood quantum would be refused membership and possibly residency. Even worse, Mohawk band members who live with non-Mohawks could be forced to leave the reserve.
Setting aside the interests of non-Aboriginal people for one minute, Kahnawake's residency rules do little to advance Mohawk culture, and instead create situations of pain, heart-ache, division, exclusion, break-up of families, and loss of cultural connection. Not only is the rule an offence to the dignity of Mohawks who have non-Aboriginal partners, it is counter to their own Mohawk history, traditions and customs. The reserve could end up being comprised of "Mohawk" band members who are not Mohawk at all, while actual Mohawks must live off reserve.
In much of the research that I have read about Mohawk people, and especially that of Kahnawake, sources seem to indicate that Mohawks were traditionally very inclusive in terms of citizenship and as a result, have a high degree of mixed ancestries in their community. Gerald Alfred wrote about the identity struggles in Kahnawake in his book "Heeding the Voices of our Ancestors":
Kahnawake as a community had traditionally been extremely receptive to the integration of outsiders. Mission records from the early period of the community’s history confirm that Mohawks at Kahnawake had continued the practice of adopting and assimilating captives, resulting in a diverse racial mixture within the Mohawk community. Even into the modern era, Kahnawake Mohawks accepted many non-Native people through marriage and among those residents who came to enjoy community membership and later formal recognition of this membership through inclusion as status Indians when the Indian Act system was implemented in Kahnawake during the 20th century. (p.163)
Alfred explains that the community assimilated the racist ideas of the Indian Act in terms of what it meant to be an Indian - i.e. a Mohawk , and blended European notions of "race" with their desire to protect their cultural identity. As a result, some members of Kahnawake actually believe that blood quantum is the only way to protect their culture, despite the fact that this concept was completely alien to their traditional ways of viewing their identity and citizenship. Alfred concludes that part of the problem is that the community had not acknowledged the deep extent to which community members have internalized Indian Act ways of thinking and therefore do not realize that instead of rejecting the Indian Act, they are actually perpetuating it!
How can a community expect to protect its culture if they can so easily turn their backs on their own children and grandchildren? In my opinion, some (not all) community members and leaders have been under the dark cloud of colonialism for so long, that it is hard for them to see their identity through any other eye, than that of the federal government - who, as we all know, designed the Indian Act and its policies with a view to assimilating Aboriginal peoples based on racist conceptions of blood purity. Colonial policies were designed to divide communities and families and impose a generic "Indian" identity on all Aboriginal peoples with a legislated formula designed to ensure their eventual disappearance.
How ironic is it then, that the leaders in Kahnawake would adopt policies which accomplish the exact same thing? Kahnawake currently operates under the Indian Band Council governance system set forth under the Indian Act; it limits their territories with which they form an identity to the reserves that were created by Indian Affairs; they label their citizens as "band members" pursuant to the Indian Act, and they assert that the only real Mohawks are those with 50% Mohawk blood or more. In actual fact, Kahnawake's rules speed up the assimilation process much faster than even the Indian Act rules!
No wonder the Chief is worried that the federal government will walk on to their reserve one day and say "You're not Indians anymore". Using blood as the sole indicator of identity guarantees this eventuality. We are Nations within a Nation and our people will continue to live, love and interact with other Aboriginal and non-Aboriginal Nations. Intermarriage is a human right and fact of life. Perhaps it is time to acknowledge the damage done to our Aboriginal identities by Canada and the Indian Act; recognize how much of this racist thinking has been internalized to our ways of thinking about ourselves; and take steps to protect our real identities for the well-being of our present generations, for the benefit of our future generations, and to honour the identities of our ancestors.
Over the last few weeks, Aboriginal and non-Aboriginal media have picked up a story that strikes at the heart of what it means to be an Aboriginal person in Canada. Are Mohawks, Mi'kmaq, Cayuga, Cree and Maliseet the biological result of nothing more than a simple formula to determine one's blood purity - or does being Mohawk have more to do with common histories, ancestors, and territories or the sharing of common languages, customs, traditions and cultures? The Mohawk Indian Band Council in Kahnawake, through its Indian Act chief, Mike Delisle, have once again communicated the message that they are a blood club.
However, before I deal with the core issues, a little context is necessary. Kahnawake, unlike the majority of bands in Canada, post their membership rules on their website for all to see. Most bands who have their own membership codes do not post their codes publically and sometimes refuse to provide copies to their own band members and/or potential band members. By way of anecdote, I have been sending letters to my own band for several years attempting to obtain both a copy of their membership code and an application form so that my children and I can apply. My phone calls and letters continue to go unanswered. I share this experience with a great number of band members and potential band members who attempt to seek information from their communities to no avail. I have to give credit to Kahnawake for making their membership code public and easily accessible to their members and potential members alike.
According to the Indian Act, 1985, band membership is generally given to status Indians who are associated with a specific band upon their application to have their name entered on the band list. This list is maintained by Indian and Northern Affairs Canada (INAC). However, pursuant to section 10 of the Act, bands are permitted to enact their own membership codes and maintain their own band lists, so long as they have a community vote and the majority votes in favour of the code. Their initial code must be submitted to INAC for approval, but once that is done there is no further requirement for bands to submit updated or amended codes. It took me many years of dealing with INAC's Access to Information and Privacy (ATIP) process, but I was finally provided with all the band membership codes in Canada. Having read every single one, I can tell you that blood quantum is not a common criteria.
Getting back to the issue at hand, there have been numerous headlines about Kahnawake's decision to evict non-Mohawks. The key issue appears to be that Kahnawake has a rule that no non-Mohawks can live on their reserve. Yet, Mohawks are still marrying out, having common law relationships with non-Mohawks and having children with non-Mohawks. As a result, Kahnawake has delivered notices to a group of non-Mohawks advising them that they are to be evicted. Some of the headlines I have seen recently include:
"If you marry out, you move out"
"Why Mohawks evict non-Natives"
"Racism on the reserve"
"Kahnawake non-Mohawk eviction deadline looms"
"Mohawk Chief denies ethnic cleansing"
"Natives only please"
"Not Native, then leave reserve Mohawks say"
So, is it non-Mohawks who must leave the reserve, or non-Natives? If the answer is non-Mohawks, then what is a non-Mohawk? If it's non-Native, how does the inclusion of other non-Mohawk Aboriginal peoples (like Mi'kmaq) further Kahnawake's goal of Mohawk identity preservation?
One would assume that a non-Mohawk is a non-Aboriginal person. Many of the reports noted above appear to indicate this is the case. However, if this residency rule is applied "evenly", then it might also apply to Mohawks who don't meet the blood quantum requirement for band membership. But what about Aboriginal people who are not Mohawks? What happens if a Mohawk woman lives with a Mi'kmaq man?
Mi'kmaq people are not Mohawks. They have very different cultures, languages, customs, traditions and territories. Yet, it is my understanding that Mi'kmaq people who are married to Mohawks can apply to transfer their band membership from their Mi'kmaq band to the Kahnawake band. This is the same for any band member across the country. If this is the case, then what Kahnawake is really protecting is a generic "Indian" identity and not a Mohawk one after all.
More than that, the majority of Indian bands in Canada do not explicitly use blood quantum to determine membership. But they do use the Indian Act rules, which since 1985 include a second-generation cut-off rule which amounts to a blood quantum rule of 25% or 1/4 blood. It is quite foreseeable then, that an Aboriginal person who is a band member of some other reserve could transfer their membership to Kahnawake and become a "Mohawk" band member. This would mean that non-Mohawk Aboriginal people of less than 50% blood quantum could become "Mohawk" and have the right to live on Kahnawake, but actual Mohawk people with less than 50% blood quantum would be refused membership and possibly residency. Even worse, Mohawk band members who live with non-Mohawks could be forced to leave the reserve.
Setting aside the interests of non-Aboriginal people for one minute, Kahnawake's residency rules do little to advance Mohawk culture, and instead create situations of pain, heart-ache, division, exclusion, break-up of families, and loss of cultural connection. Not only is the rule an offence to the dignity of Mohawks who have non-Aboriginal partners, it is counter to their own Mohawk history, traditions and customs. The reserve could end up being comprised of "Mohawk" band members who are not Mohawk at all, while actual Mohawks must live off reserve.
In much of the research that I have read about Mohawk people, and especially that of Kahnawake, sources seem to indicate that Mohawks were traditionally very inclusive in terms of citizenship and as a result, have a high degree of mixed ancestries in their community. Gerald Alfred wrote about the identity struggles in Kahnawake in his book "Heeding the Voices of our Ancestors":
Kahnawake as a community had traditionally been extremely receptive to the integration of outsiders. Mission records from the early period of the community’s history confirm that Mohawks at Kahnawake had continued the practice of adopting and assimilating captives, resulting in a diverse racial mixture within the Mohawk community. Even into the modern era, Kahnawake Mohawks accepted many non-Native people through marriage and among those residents who came to enjoy community membership and later formal recognition of this membership through inclusion as status Indians when the Indian Act system was implemented in Kahnawake during the 20th century. (p.163)
Alfred explains that the community assimilated the racist ideas of the Indian Act in terms of what it meant to be an Indian - i.e. a Mohawk , and blended European notions of "race" with their desire to protect their cultural identity. As a result, some members of Kahnawake actually believe that blood quantum is the only way to protect their culture, despite the fact that this concept was completely alien to their traditional ways of viewing their identity and citizenship. Alfred concludes that part of the problem is that the community had not acknowledged the deep extent to which community members have internalized Indian Act ways of thinking and therefore do not realize that instead of rejecting the Indian Act, they are actually perpetuating it!
How can a community expect to protect its culture if they can so easily turn their backs on their own children and grandchildren? In my opinion, some (not all) community members and leaders have been under the dark cloud of colonialism for so long, that it is hard for them to see their identity through any other eye, than that of the federal government - who, as we all know, designed the Indian Act and its policies with a view to assimilating Aboriginal peoples based on racist conceptions of blood purity. Colonial policies were designed to divide communities and families and impose a generic "Indian" identity on all Aboriginal peoples with a legislated formula designed to ensure their eventual disappearance.
How ironic is it then, that the leaders in Kahnawake would adopt policies which accomplish the exact same thing? Kahnawake currently operates under the Indian Band Council governance system set forth under the Indian Act; it limits their territories with which they form an identity to the reserves that were created by Indian Affairs; they label their citizens as "band members" pursuant to the Indian Act, and they assert that the only real Mohawks are those with 50% Mohawk blood or more. In actual fact, Kahnawake's rules speed up the assimilation process much faster than even the Indian Act rules!
No wonder the Chief is worried that the federal government will walk on to their reserve one day and say "You're not Indians anymore". Using blood as the sole indicator of identity guarantees this eventuality. We are Nations within a Nation and our people will continue to live, love and interact with other Aboriginal and non-Aboriginal Nations. Intermarriage is a human right and fact of life. Perhaps it is time to acknowledge the damage done to our Aboriginal identities by Canada and the Indian Act; recognize how much of this racist thinking has been internalized to our ways of thinking about ourselves; and take steps to protect our real identities for the well-being of our present generations, for the benefit of our future generations, and to honour the identities of our ancestors.
Thursday, February 4, 2010
Aboriginal Peoples in NB not Consulted on Proposed Sale of NB Power to Québec
The Premier of New Brunswick (NB) announced in 2009 that NB had signed a Memorandum of Understanding (MOU) with Hydro-Québec that would involve the transfer/sale of NB Power and/or its assets to Québec (or part thereof). Premier Shawn Graham explained that this is necessary for all New Brunswickers: "By entering into this agreement, New Brunswick is securing access to affordable, clean hydroelectricity, which will make the province's economy more competitive and provide a cleaner environment for future generations of New Brunswickers." The obvious question being: do New Brunswickers feel the same way?
It is the province's goal to enter into a legal, binding agreement with Hydro-Québec by March 31, 2010. I fail to see how the Premier could possibly finalize an agreement with Hydro-Québec by March 31, 2010, if he also plans on informing Aboriginal communities about how this deal might impact their Aboriginal and treaty rights, including their land claims and also engaging in proper consultations with them. It is not as if he hasn't been given due notice that there are unresolved land claims in New Brunswick. Both on and off-reserve Mi'kmaq, Maliseet and Passamaquoddy peoples have informed NB about their land claims and that they expect to be consulted on decisions made by NB that could impact those claims and their Aboriginal and treaty rights.
Firstly, NB signed a bilateral agreement with the Mi'kmaq and Maliseet Chiefs that had as its goal (in part) to: "facilitate communication and consultation between First Nations Leaders and their constituents and between the Province and its citizens" on a wide variety of issues. The very first item listed for discussion and consultation is "Land and Resources". Given the reaction of the NB Chiefs in the recent media reports, it does not appear as if NB has lived up to its part of the deal.
Secondly, the New Brunswick Aboriginal Peoples (NBAPC) which represents Mi'kmaq, Maliseet and Passamaquoddy people living off-reserve in NB was not included in the above-mentioned bilateral agreement. However, that does not absolve NB of its legal obligations to inform the off-reserve Aboriginal peoples represented by the NBAPC of the implications of this proposed deal, consult with them and accommodate their interests and concerns. As this was not done, Frank Palmater, a Director of the NBAPC sent a letter to the Premier in November 2009 reminding him of their outstanding land claim and NB's legal obligation to consult with them before any decisions are made with regard to NB Power and its assets. It reads in part:
" As you know, the Mi’kmaq, Maliseet and Passamaquoddy Peoples in New Brunswick have never surrendered or ceded their traditional territories. They did not sign treaties which gave up rights to their lands, nor have they since settled a comprehensive land claim ceding their Aboriginal and treaty rights to their land in exchange for anything. In fact, as you also know, the NBAPC and other Aboriginal groups have received funding in the past to complete land claims research with a view to submitting a formal claim. All that was missing was the province of New Brunswick’s commitment to negotiate.
I refer you to the book, Our Land: The Maritimes: The Basis of the Indian Claim in the Maritime Provinces of Canada, edited by former President of the NBAPC, Gary Gould and his collaborator, Allan Semple. The book publically asserted both a historical and legal basis of Aboriginal title in New Brunswick. The NBAPC has also advocated on behalf of its members with regards to their claims to Aboriginal title in New Brunswick. The fact that the province of New Brunswick has ignored our claims does not mean that we have not made those claims and maintain them.
As you are aware, there are numerous legal cases that have been heard at the Supreme Court of Canada relating to fiduciary duty, the honour of the Crown and the duty to consult and accommodate with regards to Aboriginal peoples and their interests. ...This duty to consult and accommodate applies regardless of whether our Aboriginal title right has been confirmed in court of law. The duty is triggered when the province of New Brunswick has “real or constructive knowledge” of the “potential existence” of the Aboriginal right or title claimed.
Therefore, the province of New Brunswick must not only act honourably in all of its dealings with Aboriginal peoples, which includes the NBAPC, it must also consider both their historical and future relationship with Aboriginal peoples. This relationship has as its base, our treaties and our traditional lands upon which we currently share with the province. ...
Practically speaking, this means that our Aboriginal title to our traditional territories in New Brunswick act as a “burden” to the province’s title and, as such, it cannot be sold, traded and/or otherwise dealt with unless and until our underlying Aboriginal title claims have been addressed. In other words, you do not have the right to even consider the sale of NB Power and/or its assets to another province because NB Power and its assets sit on lands which are claimed by the Mi’kmaq, Maliseet and Passamaquoddy peoples in New Brunswick and the sale, trade or loan of NB Power and/or its assets can and will have a negative impact on our land claim once it is finally addressed. Moreover, it is also our understanding that there are various specific land claims relating to NB Power and/or its assets that have yet to be addressed. ...
Therefore, this letter will:
(1) Re-assert our long-standing claim to Aboriginal title in the lands traditionally used and/or occupied by the Mi’kmaq, Maliseet and Passamaquoddy in New Brunswick, a right which is protected by section 35 of the Constitution Act, 1982;
(2) Remind the Province of New Brunswick of its legal and moral obligations to act honourably and in good faith and to both consult with us and accommodate our interests with regards to the proposed sale of NB Power and/or its assets; and
(3) Request that the Province of New Brunswick meet with us immediately to establish a process to finally address our long-outstanding Aboriginal title claim as well as our treaty and other rights in New Brunswick, before considering the sale of NB Power and/or its assets."
The Premier promptly responded to this letter on December 7, 2009 by indicating that no binding agreement had yet been signed and that NB, would in fact, be meeting with the NBAPC on this issue within the "next few months". When the NBAPC failed to hear from the Premier, Frank Palmater sent another letter reminding him of the looming deadline and the province's legal obligations to consult. Now, the Chiefs of New Brunswick are also pointing out the lack of consultation.
For the benefit of all New Brunswickers: Aboriginal and non-Aboriginal, the Premier ought to slow down this run-away train and avoid a complete disaster (legally and politically) and take time to:
(1) properly inform communities about the specific implications of this proposed deal;
(2) consult in an appropriate manner; and
(3) accommodate the interests, rights and concerns raised during consultations.
Our land and resources are worth at least the time it takes to have this discussion.
It is the province's goal to enter into a legal, binding agreement with Hydro-Québec by March 31, 2010. I fail to see how the Premier could possibly finalize an agreement with Hydro-Québec by March 31, 2010, if he also plans on informing Aboriginal communities about how this deal might impact their Aboriginal and treaty rights, including their land claims and also engaging in proper consultations with them. It is not as if he hasn't been given due notice that there are unresolved land claims in New Brunswick. Both on and off-reserve Mi'kmaq, Maliseet and Passamaquoddy peoples have informed NB about their land claims and that they expect to be consulted on decisions made by NB that could impact those claims and their Aboriginal and treaty rights.
Firstly, NB signed a bilateral agreement with the Mi'kmaq and Maliseet Chiefs that had as its goal (in part) to: "facilitate communication and consultation between First Nations Leaders and their constituents and between the Province and its citizens" on a wide variety of issues. The very first item listed for discussion and consultation is "Land and Resources". Given the reaction of the NB Chiefs in the recent media reports, it does not appear as if NB has lived up to its part of the deal.
Secondly, the New Brunswick Aboriginal Peoples (NBAPC) which represents Mi'kmaq, Maliseet and Passamaquoddy people living off-reserve in NB was not included in the above-mentioned bilateral agreement. However, that does not absolve NB of its legal obligations to inform the off-reserve Aboriginal peoples represented by the NBAPC of the implications of this proposed deal, consult with them and accommodate their interests and concerns. As this was not done, Frank Palmater, a Director of the NBAPC sent a letter to the Premier in November 2009 reminding him of their outstanding land claim and NB's legal obligation to consult with them before any decisions are made with regard to NB Power and its assets. It reads in part:
" As you know, the Mi’kmaq, Maliseet and Passamaquoddy Peoples in New Brunswick have never surrendered or ceded their traditional territories. They did not sign treaties which gave up rights to their lands, nor have they since settled a comprehensive land claim ceding their Aboriginal and treaty rights to their land in exchange for anything. In fact, as you also know, the NBAPC and other Aboriginal groups have received funding in the past to complete land claims research with a view to submitting a formal claim. All that was missing was the province of New Brunswick’s commitment to negotiate.
I refer you to the book, Our Land: The Maritimes: The Basis of the Indian Claim in the Maritime Provinces of Canada, edited by former President of the NBAPC, Gary Gould and his collaborator, Allan Semple. The book publically asserted both a historical and legal basis of Aboriginal title in New Brunswick. The NBAPC has also advocated on behalf of its members with regards to their claims to Aboriginal title in New Brunswick. The fact that the province of New Brunswick has ignored our claims does not mean that we have not made those claims and maintain them.
As you are aware, there are numerous legal cases that have been heard at the Supreme Court of Canada relating to fiduciary duty, the honour of the Crown and the duty to consult and accommodate with regards to Aboriginal peoples and their interests. ...This duty to consult and accommodate applies regardless of whether our Aboriginal title right has been confirmed in court of law. The duty is triggered when the province of New Brunswick has “real or constructive knowledge” of the “potential existence” of the Aboriginal right or title claimed.
Therefore, the province of New Brunswick must not only act honourably in all of its dealings with Aboriginal peoples, which includes the NBAPC, it must also consider both their historical and future relationship with Aboriginal peoples. This relationship has as its base, our treaties and our traditional lands upon which we currently share with the province. ...
Practically speaking, this means that our Aboriginal title to our traditional territories in New Brunswick act as a “burden” to the province’s title and, as such, it cannot be sold, traded and/or otherwise dealt with unless and until our underlying Aboriginal title claims have been addressed. In other words, you do not have the right to even consider the sale of NB Power and/or its assets to another province because NB Power and its assets sit on lands which are claimed by the Mi’kmaq, Maliseet and Passamaquoddy peoples in New Brunswick and the sale, trade or loan of NB Power and/or its assets can and will have a negative impact on our land claim once it is finally addressed. Moreover, it is also our understanding that there are various specific land claims relating to NB Power and/or its assets that have yet to be addressed. ...
Therefore, this letter will:
(1) Re-assert our long-standing claim to Aboriginal title in the lands traditionally used and/or occupied by the Mi’kmaq, Maliseet and Passamaquoddy in New Brunswick, a right which is protected by section 35 of the Constitution Act, 1982;
(2) Remind the Province of New Brunswick of its legal and moral obligations to act honourably and in good faith and to both consult with us and accommodate our interests with regards to the proposed sale of NB Power and/or its assets; and
(3) Request that the Province of New Brunswick meet with us immediately to establish a process to finally address our long-outstanding Aboriginal title claim as well as our treaty and other rights in New Brunswick, before considering the sale of NB Power and/or its assets."
The Premier promptly responded to this letter on December 7, 2009 by indicating that no binding agreement had yet been signed and that NB, would in fact, be meeting with the NBAPC on this issue within the "next few months". When the NBAPC failed to hear from the Premier, Frank Palmater sent another letter reminding him of the looming deadline and the province's legal obligations to consult. Now, the Chiefs of New Brunswick are also pointing out the lack of consultation.
For the benefit of all New Brunswickers: Aboriginal and non-Aboriginal, the Premier ought to slow down this run-away train and avoid a complete disaster (legally and politically) and take time to:
(1) properly inform communities about the specific implications of this proposed deal;
(2) consult in an appropriate manner; and
(3) accommodate the interests, rights and concerns raised during consultations.
Our land and resources are worth at least the time it takes to have this discussion.
Friday, January 22, 2010
What is Aboriginal Identity?
That is both an easy question and a tough one all at the same time. It is an easy question because identity is generally about self-identification - i.e., you are who you say you are. It is also a tough question because one's identity can also be reinforced or damaged by whether one's identity is also legally and/or politically recognized. That is to say, if one identifies as Mi'kmaq, but the Mi'kmaq Nation does not recognize that person, this makes the continued assertion of one's identity more difficult. Similarly, the Indian Act's status provisions have been imposed on Aboriginal peoples for so long that even some Aboriginal people question an individual's Aboriginal identity "credentials", if they don't hold a status card.
Yet, it is important to remember that legal recognition as a status Indian has absolutely nothing to do with Aboriginal culture, heritage, traditions, customs, or practices. It is an administrative tool used by Canada to determine who can have access to their programs and services. It was originally designed to eliminate the "Indian problem" and ensure the eventual assimilation of all Indians. But, if status was only about programs and services, it would not be as significant as it actually is. Because status as an Indian also determines, for the majority of bands in Canada, who can be a member of a band and therefore who can live on reserves; access band programs and services and sometimes cultural activities, then status carries more weight than the government is willing to acknowledge. It is for this reason, that status has such significance in determining Aboriginal identity.
In my opinion, Aboriginal identity should be first and foremost about self-identification. There can be no greater sign of loyalty and pride in one's Aboriginal Nation than to publicly proclaim to the world one's identity as Mohawk, Cayuga, Mi'kmaq, Maliseet and so on. There are a great many people who never give a thought to their identity or who take their identity for granted because it is not threatened in any way. Part of rebuilding our Aboriginal Nations is to rebuild pride in who we are and that includes celebrating those who embrace their Aboriginal identities.
We should also be mindful of the fact that not everyone has the same basis for asserting their Aboriginal identity.
For example, some Aboriginal people who live on reserve are secure in their identity as Aboriginal peoples because they live on the same land as their large extended families and friends who share a common history and culture. These on-reserve Aboriginal may not know how to speak their traditional language, participate in their traditional practices and customs or even know much about their common history. Their connection to their reserve land can be enough for some to be secure in their identity.
There are other Aboriginal people who do not live on a reserve, but who live on their traditional territories. They may also hunt and fish and know a great deal about the history of their vast territories. Their connection to their traditional territory is not limited by reserve boundaries and can be passed on to their families and others who also live on their traditional territories. That connection to their traditional lands that were shared with their ancestors can be all it takes to secure their Aboriginal identities.
There are still other Aboriginal people who, for school, work or otherwise no longer live on a reserve or on their traditional territories. But they may know their culture, can speak their traditional language, partake in traditional practices and ceremonies and honour traditional values. That cultural connection gives supports their identity security despite being off a land-base. They may also contribute to their community through employment or advocacy activities for example. This sense of loyalty and pride in who they are and their community may also add to their identity.
Aboriginal children who were taken away from their parents at a young age and adopted out of the family and even out of their communities may have no ties to their community. They may not know their birth parents, their culture, treaties, land, language or traditions. But they know where they came from and may be determined to learn more and re-establish a connection with their community. They may only have a familial connection to their identity, but for them that might be enough to sustain their identity as an Aboriginal person until they can learn more.
Who is to say that any one of these individuals is "more" Aboriginal than the next? Why can't identification as a Mohawk, Cayuga, Mi'kmaq or Maliseet include any combination of the factors noted above? I would think that given our Nations' need to rebuild, that welcoming all those who are proud to publicly assert their identity and proclaim some degree of loyalty for their Nation is a great deal more valuable than what is offered by those who take their identity and their community for granted. Instead of reducing Aboriginal communities to clubs based on blood quantum or status; we should allow the possibility that our communities are something more than races waiting for inevitable extinction.
If that is the case, and we, as communities of Aboriginal peoples assert our Nationhood and even our right to be self-determining or sovereign nations, don't we also require legal and political recognition as such? If we deny legal and political recognition to our own citizens because they do not fulfill blood quantum levels or they don't have status cards, how can we expect Canada or any other country to see our people as the Nations? Not only does exclusion of our rightful citizens speed up our own legal extinction, we will be excluding the very citizenship base which has shown pride and loyalty in our Nations.
We need proud, loyal, passionate citizens to dedicate their time and energy toward rebuilding our Nations and maintaining our collective identities for our future generations. If we rely on those who take their identity for granted, we create an uncertain future for our children. Perhaps we need to think more objectively about what it means to identify as an Aboriginal person and not be so quick to exclude our own. We may be excluding our future leaders.
Yet, it is important to remember that legal recognition as a status Indian has absolutely nothing to do with Aboriginal culture, heritage, traditions, customs, or practices. It is an administrative tool used by Canada to determine who can have access to their programs and services. It was originally designed to eliminate the "Indian problem" and ensure the eventual assimilation of all Indians. But, if status was only about programs and services, it would not be as significant as it actually is. Because status as an Indian also determines, for the majority of bands in Canada, who can be a member of a band and therefore who can live on reserves; access band programs and services and sometimes cultural activities, then status carries more weight than the government is willing to acknowledge. It is for this reason, that status has such significance in determining Aboriginal identity.
In my opinion, Aboriginal identity should be first and foremost about self-identification. There can be no greater sign of loyalty and pride in one's Aboriginal Nation than to publicly proclaim to the world one's identity as Mohawk, Cayuga, Mi'kmaq, Maliseet and so on. There are a great many people who never give a thought to their identity or who take their identity for granted because it is not threatened in any way. Part of rebuilding our Aboriginal Nations is to rebuild pride in who we are and that includes celebrating those who embrace their Aboriginal identities.
We should also be mindful of the fact that not everyone has the same basis for asserting their Aboriginal identity.
For example, some Aboriginal people who live on reserve are secure in their identity as Aboriginal peoples because they live on the same land as their large extended families and friends who share a common history and culture. These on-reserve Aboriginal may not know how to speak their traditional language, participate in their traditional practices and customs or even know much about their common history. Their connection to their reserve land can be enough for some to be secure in their identity.
There are other Aboriginal people who do not live on a reserve, but who live on their traditional territories. They may also hunt and fish and know a great deal about the history of their vast territories. Their connection to their traditional territory is not limited by reserve boundaries and can be passed on to their families and others who also live on their traditional territories. That connection to their traditional lands that were shared with their ancestors can be all it takes to secure their Aboriginal identities.
There are still other Aboriginal people who, for school, work or otherwise no longer live on a reserve or on their traditional territories. But they may know their culture, can speak their traditional language, partake in traditional practices and ceremonies and honour traditional values. That cultural connection gives supports their identity security despite being off a land-base. They may also contribute to their community through employment or advocacy activities for example. This sense of loyalty and pride in who they are and their community may also add to their identity.
Aboriginal children who were taken away from their parents at a young age and adopted out of the family and even out of their communities may have no ties to their community. They may not know their birth parents, their culture, treaties, land, language or traditions. But they know where they came from and may be determined to learn more and re-establish a connection with their community. They may only have a familial connection to their identity, but for them that might be enough to sustain their identity as an Aboriginal person until they can learn more.
Who is to say that any one of these individuals is "more" Aboriginal than the next? Why can't identification as a Mohawk, Cayuga, Mi'kmaq or Maliseet include any combination of the factors noted above? I would think that given our Nations' need to rebuild, that welcoming all those who are proud to publicly assert their identity and proclaim some degree of loyalty for their Nation is a great deal more valuable than what is offered by those who take their identity and their community for granted. Instead of reducing Aboriginal communities to clubs based on blood quantum or status; we should allow the possibility that our communities are something more than races waiting for inevitable extinction.
If that is the case, and we, as communities of Aboriginal peoples assert our Nationhood and even our right to be self-determining or sovereign nations, don't we also require legal and political recognition as such? If we deny legal and political recognition to our own citizens because they do not fulfill blood quantum levels or they don't have status cards, how can we expect Canada or any other country to see our people as the Nations? Not only does exclusion of our rightful citizens speed up our own legal extinction, we will be excluding the very citizenship base which has shown pride and loyalty in our Nations.
We need proud, loyal, passionate citizens to dedicate their time and energy toward rebuilding our Nations and maintaining our collective identities for our future generations. If we rely on those who take their identity for granted, we create an uncertain future for our children. Perhaps we need to think more objectively about what it means to identify as an Aboriginal person and not be so quick to exclude our own. We may be excluding our future leaders.
Wednesday, January 20, 2010
From Frustration to Hope - Balancing Traditional Aboriginal Values with Pressing Social Needs
On Tuesday, January 19, 2010, I attended a breakfast event at the Toronto Board of Trade (BOT). The purpose of the event was to hear Assembly of First Nations (AFN) National Chief Shawn A-in-chut Atleo speak about how we can partner to improve First Nation economies. The event was hosted by the BOT and emceed by Clint Davis, the President and CEO of the Canadian Centre for Aboriginal Business (CCAB). Clint Davis is from Nunatsiavut (Newfoundland and Labrador) and Chief Atleo is from Ahousaht (British Columbia).
Chief Atleo gave a moving speech that one would not expect given the topic of Aboriginal business. He referred to the many life lessons he received from his family growing up and especially those of his late grandmother. Listening to Chief Atleo make the connections between the traditions, teachings and current issues faced by First Nations, reinforced in my mind the need for Aboriginal communities to not be so quick to abandon traditional values, ethics and lessons for the lure of economic development and quick settlements.
Economic development is important for most, if not all Aboriginal communities, but its importance cannot be seen in isolation from other goals which are important to Aboriginal peoples like: climate change, conservation, protection of traditional territories, community healing and wellness, education, maintaining the integrity of families, the education and security of our children, self-determination, and respect for our treaty relationships, for example. If a singular focus is made on economic development, then there would be no issue with the environmental destruction that comes with oil sand projects, hydro dams, gas lines, and diamond mining because the local Aboriginal people would be employed and this generation might enjoy some financial benefits.
However, given that economic development is only part of a bigger picture for self-determining Aboriginal Nations which are healthy, vibrant and thriving, a proper balance must be made. In my opinion, Chief Atleo is not only aware of these other issues, but he ensures to include those in his priorities which are reflected in his speeches. It is his ability to turn a negative into a positive or to tackle politically sticky issues and offer hope for the future that he makes him a unique leader. When Chief Atleo spoke at the BOT, he didn't focus solely on economic development, he explained that concern and action on the crisis of climate change is also necessary. Similarly, he argued that while education was used in the past to disempower and assimilate our people, we can now use education to empower our people, relearn our languages and traditions, and build capacity within our communities to revitalize our Nations.
In so doing, Chief Atleo was also cognizant of the other pressing social issues that we have to address related to housing, health, treaties, land, murdered and missing women and so on. Overlaid on top of all this are the hurtful divisions which we: both Aboriginal and non-Aboriginal peoples alike, have inherited. He told the audience that none of us enacted the Indian Act, but we are left with very real divisions like Status and Non-Status Indians and on and off-reserve people. He acknowledged that these divisions were imposed upon us and that we have to find a way to address these inequities as we move forward. At the same time, he also said that some of things we consider divisions, could actually be considered strengths. For example, having Aboriginal people living, working and succeeding both on and off-reserve can be a significant strength for Aboriginal communities and we should be looking for ways to work together on that basis.
I was at the United Nations headquarters in New York last week at an Indigenous Experts meeting of the Permanent Forum on Indigenous Issues. The topic was how state development impacts indigenous identity and culture, what the key issues are and how to resolve some of them. Indigenous peoples from around the world were generally of the mind that economic development can proceed so long as we remember that it is not our sole focus: i.e., increasing our salaries or our bank accounts for this generation can never be more important than protecting our wildlife, our rivers and water sources, and the integrity of of the land within our territories. Chief Atleo appears to be in sync with international indigenous objectives as he balances our social needs (economic development, relations with Canada) with our core values as Aboriginal peoples (protecting the land and natural resources).
Perhaps by refocusing on the traditional values that made us Mi'kmaq, Cree, Nuu-chah-nulth, or Mohawk Nations, and aligning our priorities with rebuilding and revitalizing those Nations, we will have respected what our ancestors fought so hard to protect and leave a strong legacy for our future generations that they will be proud to carry forward. I think Chief Atleo offers just that kind of hope for all Aboriginal peoples - on and off-reserve, and status and non-status alike - and I, for one, will be watching his progress in the coming months/years.
Chief Atleo gave a moving speech that one would not expect given the topic of Aboriginal business. He referred to the many life lessons he received from his family growing up and especially those of his late grandmother. Listening to Chief Atleo make the connections between the traditions, teachings and current issues faced by First Nations, reinforced in my mind the need for Aboriginal communities to not be so quick to abandon traditional values, ethics and lessons for the lure of economic development and quick settlements.
Economic development is important for most, if not all Aboriginal communities, but its importance cannot be seen in isolation from other goals which are important to Aboriginal peoples like: climate change, conservation, protection of traditional territories, community healing and wellness, education, maintaining the integrity of families, the education and security of our children, self-determination, and respect for our treaty relationships, for example. If a singular focus is made on economic development, then there would be no issue with the environmental destruction that comes with oil sand projects, hydro dams, gas lines, and diamond mining because the local Aboriginal people would be employed and this generation might enjoy some financial benefits.
However, given that economic development is only part of a bigger picture for self-determining Aboriginal Nations which are healthy, vibrant and thriving, a proper balance must be made. In my opinion, Chief Atleo is not only aware of these other issues, but he ensures to include those in his priorities which are reflected in his speeches. It is his ability to turn a negative into a positive or to tackle politically sticky issues and offer hope for the future that he makes him a unique leader. When Chief Atleo spoke at the BOT, he didn't focus solely on economic development, he explained that concern and action on the crisis of climate change is also necessary. Similarly, he argued that while education was used in the past to disempower and assimilate our people, we can now use education to empower our people, relearn our languages and traditions, and build capacity within our communities to revitalize our Nations.
In so doing, Chief Atleo was also cognizant of the other pressing social issues that we have to address related to housing, health, treaties, land, murdered and missing women and so on. Overlaid on top of all this are the hurtful divisions which we: both Aboriginal and non-Aboriginal peoples alike, have inherited. He told the audience that none of us enacted the Indian Act, but we are left with very real divisions like Status and Non-Status Indians and on and off-reserve people. He acknowledged that these divisions were imposed upon us and that we have to find a way to address these inequities as we move forward. At the same time, he also said that some of things we consider divisions, could actually be considered strengths. For example, having Aboriginal people living, working and succeeding both on and off-reserve can be a significant strength for Aboriginal communities and we should be looking for ways to work together on that basis.
I was at the United Nations headquarters in New York last week at an Indigenous Experts meeting of the Permanent Forum on Indigenous Issues. The topic was how state development impacts indigenous identity and culture, what the key issues are and how to resolve some of them. Indigenous peoples from around the world were generally of the mind that economic development can proceed so long as we remember that it is not our sole focus: i.e., increasing our salaries or our bank accounts for this generation can never be more important than protecting our wildlife, our rivers and water sources, and the integrity of of the land within our territories. Chief Atleo appears to be in sync with international indigenous objectives as he balances our social needs (economic development, relations with Canada) with our core values as Aboriginal peoples (protecting the land and natural resources).
Perhaps by refocusing on the traditional values that made us Mi'kmaq, Cree, Nuu-chah-nulth, or Mohawk Nations, and aligning our priorities with rebuilding and revitalizing those Nations, we will have respected what our ancestors fought so hard to protect and leave a strong legacy for our future generations that they will be proud to carry forward. I think Chief Atleo offers just that kind of hope for all Aboriginal peoples - on and off-reserve, and status and non-status alike - and I, for one, will be watching his progress in the coming months/years.
Wednesday, January 6, 2010
What is a Non-Status Indian?
What is a Non-Status Indian? People ask me this question nearly everyday. Some people think Non-Status Indians are really just Métis people - those with mixed Aboriginal and non-Aboriginal ancestry. Others think that a Non-Status Indian is any person who is not registered under the Indian Act as an "Indian" - i.e. they are not Aboriginal people. I have even had government officials query whether we can ever know what a Non-Status Indian is as there is no legislative definition for them.
For many years, some Aboriginal political organisations that represent Aboriginal peoples living off-reserve also represented Métis peoples. For example, the New Brunswick Aboriginal Peoples Council (NBAPC) used to be called the New Brunswick Association of Métis and Non-Status Indians. Although the Minister of Indian and Northern Affairs Canada (INAC) now has responsibility for Status Indians, Non-Status and Métis people, it wasn't always that way. The Minister of INAC used to be responsible for status Indians and there was a Federal Interlocutor who was specifically responsible for Métis and Non-Status Indians. The terms Métis and Non-Status Indian have been used together for so long that there is understandable confusion about the two.
In the most simplest terms - Métis people are those people who have descended from Métis groups across the country. These Métis groups were originally born from unions between Aboriginal peoples (Cree, Ojibway etc) and non-Aboriginal peoples and went on to identify not with their Aboriginal ancestors, nor did they identify with their non-Aboriginal ancestors. Métis peoples saw themselves as distinct from both groups and went on to develop their own practices, customs, traditions, languages and so forth. It is a common misunderstanding to refer to someone with mixed Aboriginal/non-Aboriginal ancestry as Métis, at least without knowing more.
What about Non-Status Indians? Are they not Aboriginal people with mixed ancestries? Sometimes yes and sometimes no. Many Non-Status Indians have no more of a mixed ancestral heritage than do status Indians. So, then what is a Non-Status Indian? INAC's website defines the term Non-Status Indian as follows:
"...commonly refers to people who identify themselves as Indians but who are not entitled to registration on the Indian Registrar pursuant to the Indian Act."
The University of Saskatchewan's Online Encyclopedia defines Non-Status Indians as follows:
"People who are identified as Non-Status Indians in Canada are individuals who are not considered as Registered Indians because either they or their ancestors were refused or lost their Indian status through the mechanisms of the Indian Act, and who do not identify as being Métis. The mechanism by which people lost their status was “enfranchisement.” The most common method of enfranchisement was through intermarriage, whereby a Status Indian woman marrying a non-Indian man lost her Indian status—as did her children; this law existed until the Indian Act was amended in 1985. Other ways in which individuals could be enfranchised was by obtaining the federal right to vote (until 1960), feeing simple title to land, or receiving a university degree (until 1951). "
Professor and lawyer, Joseph Magnet had this to say about Non-Status Indians in his article "Who are the Aboriginal Peoples of Canada?":
"The consistent narrowing of the definition of ‘Indian’ in various amendments to the Indian Act created a large population of Aboriginal people without Indian status, or the rights and entitlements that attach to it – the non-status Indians... The population of non-status Indians is larger than is discerned by considering the legal exceptions in the various Indian Acts, however. It also includes people of Aboriginal ancestry and culture who were never entitled to register in 1876, as well as Aboriginal people entitled to register who chose not to submit themselves to the Department’s control....The non-status population includes the historical Indians and their descendants."
While all of these definitions are accurate, it may be simpler to say that Non-Status Indians are those people who identify as Indian (i.e. Mohawk, Mi'kmaq, Cree, Maliseet, etc) but who by choice or legislative exclusion are not registered under the Indian Act as Indians (i.e. they do not have "status"). For many, the term Non-Status Indian is not so much an identity, but a state of being. For example, I am a Mi'kmaq person and have always identified as such. My larger extended family is Mi'kmaq and we have worked our whole lives towards improving the lives of Mi'kmaq and other Aboriginal peoples who live off-reserve and who are treated differently because they lack a residence on reserve and/or because they do not have status under the Indian Act. I was raised to know the community from which my family originated, the traditions and practices of my Nation as well as the people who share the same Mi'kmaq history.
While I identify as Mi'kmaq, I am also aware that due to gender discrimination in the Indian Act, I am not currently entitled to be a registered (status) Indian, despite the fact that my father was a status Indian and band member at Eel River Bar First Nation in New Brunswick. Therefore, I am a non-status Indian, i.e. a Mi'kmaq who is not registered under the Indian Act. That is my state of being as so decided by a government official at INAC. Some people have asked why I would continue to refer to myself or my situation with such a negative label as Non-Status Indian. My only answer is this: so long as there is a discriminatory federal process that tells me I am a Non-Status Indian, then I have an obligation to use the term, educate people about the term and work towards finally getting rid of the need to even have the term.
Other terms such as First Nations or off-reserve Aboriginal peoples may include both status and Non-Status Indians. However, the saying "out of sight - out of mind" applies especially to this situation. In my opinion, generic terms tend to hide the fact that Non-Status Indians exist and this creates a lack of awareness about their issues. Non-Status Indians are being discriminated against on the basis of their gender, birth/blood status, and/or marital/family status. Some are denied band membership simply because they do not have status. Many do not qualify for federal programs and services because they lack status. Some are even denied the right to call themselves Cree, Mi'kmaq or Mohawk because some Aboriginal communities have come to associate their identities with federal recognition - i.e. status. These issues affect the quality of life of thousands of us across the country. We need to acknowledge the problem and find solutions.
There are Non-Status Indians who live on and off-reserve, who do and don't have band membership, who are and are not welcome in their home communities and those who associate with off-reserve political groups and those who don't. One cannot easily generalize when it comes to Non-Status Indians, but certain demographic facts should be highlighted: Aboriginal women and their children are disproportionately affected by the discrimination of the Indian Act's status provisions and comprise a higher number of Non-Status Indians. Non-Status Indians also suffer from the same poor socio-economic conditions as their status Indian brothers and sisters. Most live off-reserve and receive little assistance from federal and provincial governments or their own Aboriginal communities.
It is time that all Aboriginal people started talking about this situation and included Non-Status Indians of all backgrounds in the discussion. That includes ensuring that Non-Status Indians are at the table when treaties, land claims, self-government and other issues of importance are discussed. As with most issues involving Aboriginal peoples, identity is a complex political, social, historical. cultural and legal issue that requires a deeper conversation amongst ourselves. First and foremost however, it requires a rejection of Canada's presumed jurisdiction over our identity and the discriminatory tools it has used to label and divide us (status). There can be no right more inherent or more integral to one's culture than the right of Aboriginal Nations to be self-defining.
Hopefully, this has helped to answer the questions you have all e-mailed me recently about Non-Status Indians. There is a great deal more information out there regarding Non-Status Indians and I encourage you all to look for it and come up with your own thoughts and ideas about the issues we face and join the discussion. For those who are interested, you can get more information on my website at http://www.nonstatusindian.com/. You can also follow me on Facebook under the name Non Statusindian or on Twitter as Pam_Palmater. At any time, please feel free to e-mail me at palmater@nonstatusindian.com
Pam
For many years, some Aboriginal political organisations that represent Aboriginal peoples living off-reserve also represented Métis peoples. For example, the New Brunswick Aboriginal Peoples Council (NBAPC) used to be called the New Brunswick Association of Métis and Non-Status Indians. Although the Minister of Indian and Northern Affairs Canada (INAC) now has responsibility for Status Indians, Non-Status and Métis people, it wasn't always that way. The Minister of INAC used to be responsible for status Indians and there was a Federal Interlocutor who was specifically responsible for Métis and Non-Status Indians. The terms Métis and Non-Status Indian have been used together for so long that there is understandable confusion about the two.
In the most simplest terms - Métis people are those people who have descended from Métis groups across the country. These Métis groups were originally born from unions between Aboriginal peoples (Cree, Ojibway etc) and non-Aboriginal peoples and went on to identify not with their Aboriginal ancestors, nor did they identify with their non-Aboriginal ancestors. Métis peoples saw themselves as distinct from both groups and went on to develop their own practices, customs, traditions, languages and so forth. It is a common misunderstanding to refer to someone with mixed Aboriginal/non-Aboriginal ancestry as Métis, at least without knowing more.
What about Non-Status Indians? Are they not Aboriginal people with mixed ancestries? Sometimes yes and sometimes no. Many Non-Status Indians have no more of a mixed ancestral heritage than do status Indians. So, then what is a Non-Status Indian? INAC's website defines the term Non-Status Indian as follows:
"...commonly refers to people who identify themselves as Indians but who are not entitled to registration on the Indian Registrar pursuant to the Indian Act."
The University of Saskatchewan's Online Encyclopedia defines Non-Status Indians as follows:
"People who are identified as Non-Status Indians in Canada are individuals who are not considered as Registered Indians because either they or their ancestors were refused or lost their Indian status through the mechanisms of the Indian Act, and who do not identify as being Métis. The mechanism by which people lost their status was “enfranchisement.” The most common method of enfranchisement was through intermarriage, whereby a Status Indian woman marrying a non-Indian man lost her Indian status—as did her children; this law existed until the Indian Act was amended in 1985. Other ways in which individuals could be enfranchised was by obtaining the federal right to vote (until 1960), feeing simple title to land, or receiving a university degree (until 1951). "
Professor and lawyer, Joseph Magnet had this to say about Non-Status Indians in his article "Who are the Aboriginal Peoples of Canada?":
"The consistent narrowing of the definition of ‘Indian’ in various amendments to the Indian Act created a large population of Aboriginal people without Indian status, or the rights and entitlements that attach to it – the non-status Indians... The population of non-status Indians is larger than is discerned by considering the legal exceptions in the various Indian Acts, however. It also includes people of Aboriginal ancestry and culture who were never entitled to register in 1876, as well as Aboriginal people entitled to register who chose not to submit themselves to the Department’s control....The non-status population includes the historical Indians and their descendants."
While all of these definitions are accurate, it may be simpler to say that Non-Status Indians are those people who identify as Indian (i.e. Mohawk, Mi'kmaq, Cree, Maliseet, etc) but who by choice or legislative exclusion are not registered under the Indian Act as Indians (i.e. they do not have "status"). For many, the term Non-Status Indian is not so much an identity, but a state of being. For example, I am a Mi'kmaq person and have always identified as such. My larger extended family is Mi'kmaq and we have worked our whole lives towards improving the lives of Mi'kmaq and other Aboriginal peoples who live off-reserve and who are treated differently because they lack a residence on reserve and/or because they do not have status under the Indian Act. I was raised to know the community from which my family originated, the traditions and practices of my Nation as well as the people who share the same Mi'kmaq history.
While I identify as Mi'kmaq, I am also aware that due to gender discrimination in the Indian Act, I am not currently entitled to be a registered (status) Indian, despite the fact that my father was a status Indian and band member at Eel River Bar First Nation in New Brunswick. Therefore, I am a non-status Indian, i.e. a Mi'kmaq who is not registered under the Indian Act. That is my state of being as so decided by a government official at INAC. Some people have asked why I would continue to refer to myself or my situation with such a negative label as Non-Status Indian. My only answer is this: so long as there is a discriminatory federal process that tells me I am a Non-Status Indian, then I have an obligation to use the term, educate people about the term and work towards finally getting rid of the need to even have the term.
Other terms such as First Nations or off-reserve Aboriginal peoples may include both status and Non-Status Indians. However, the saying "out of sight - out of mind" applies especially to this situation. In my opinion, generic terms tend to hide the fact that Non-Status Indians exist and this creates a lack of awareness about their issues. Non-Status Indians are being discriminated against on the basis of their gender, birth/blood status, and/or marital/family status. Some are denied band membership simply because they do not have status. Many do not qualify for federal programs and services because they lack status. Some are even denied the right to call themselves Cree, Mi'kmaq or Mohawk because some Aboriginal communities have come to associate their identities with federal recognition - i.e. status. These issues affect the quality of life of thousands of us across the country. We need to acknowledge the problem and find solutions.
There are Non-Status Indians who live on and off-reserve, who do and don't have band membership, who are and are not welcome in their home communities and those who associate with off-reserve political groups and those who don't. One cannot easily generalize when it comes to Non-Status Indians, but certain demographic facts should be highlighted: Aboriginal women and their children are disproportionately affected by the discrimination of the Indian Act's status provisions and comprise a higher number of Non-Status Indians. Non-Status Indians also suffer from the same poor socio-economic conditions as their status Indian brothers and sisters. Most live off-reserve and receive little assistance from federal and provincial governments or their own Aboriginal communities.
It is time that all Aboriginal people started talking about this situation and included Non-Status Indians of all backgrounds in the discussion. That includes ensuring that Non-Status Indians are at the table when treaties, land claims, self-government and other issues of importance are discussed. As with most issues involving Aboriginal peoples, identity is a complex political, social, historical. cultural and legal issue that requires a deeper conversation amongst ourselves. First and foremost however, it requires a rejection of Canada's presumed jurisdiction over our identity and the discriminatory tools it has used to label and divide us (status). There can be no right more inherent or more integral to one's culture than the right of Aboriginal Nations to be self-defining.
Hopefully, this has helped to answer the questions you have all e-mailed me recently about Non-Status Indians. There is a great deal more information out there regarding Non-Status Indians and I encourage you all to look for it and come up with your own thoughts and ideas about the issues we face and join the discussion. For those who are interested, you can get more information on my website at http://www.nonstatusindian.com/. You can also follow me on Facebook under the name Non Statusindian or on Twitter as Pam_Palmater. At any time, please feel free to e-mail me at palmater@nonstatusindian.com
Pam
Monday, December 14, 2009
Aboriginal Citizenship or Membership in Bands?
There are many Aboriginal leaders and community members from all over Canada who are fighting on our behalf to protect our culture and identity for the future. There is never just one person dedicating their time, effort and "free" time to these issues. It is impossible to list them all in one blog. However, there are always those who stand out above the rest because of their selfless dedication to their people. This blog will highlight one of those people who are working hard to make changes to how we define ourselves for the benefit of our future generations.
Chief William K. Montour, Six Nations of the Grand River Territory in Ontario.
Chief Montour is an inspiration to those who truly know him. He has decades of experience working on behalf of his people both inside and outside of the Canadian government and the Six Nations government. It wasn't Chief Montour that enacted the Indian Act and he certainly did not impose the assimilatory rules, regulations, and policies which have divided Nations and imported anger and distrust into our communities. He no more believes in Indian Act administration than I do. But he also seems to be aware of the present legal realities and has taken up those challenges with a view to making positive changes for the future.
At the AFN AGM which was recently held in Ottawa on December 9-11th, 2009, the assembly had to address a resolution to regarding Indian and Northern Affairs Canada's (INAC's) plan to amend the registration provisions of the Indian Act in a very minimalistic way, that will not address all of the gender discrimination raised in the McIvor case. The debate centered around membership and how it could be impacted by this legislation and disintegrated into a debate about how "band resources" would be at risk if additional members were added to the band lists. It was at this point that Chief Montour addressed the entire assembly and said that he was "confused". He asked them whether the discussion was one of citizenship or one of registration. He explained that by continually pursuing issues of registration, we are involving ourselves in our own assimilation.
He told the assembly that leaving our future to the legislators ensured that we would have no future. He referred to the AFN commissioned-study in 1992 which found that the registration system provides for decreasing numbers of Indians and that his own community of Six Nations which is over 26,000 members strong, would not have any registered or status Indians within 100 years. Under section 91(24) of the Constitution Act, 1867, the federal government has jurisdiction with regards to Indians and lands reserved for Indians. All reserve lands are therefore held by the federal crown for the use and benefit of Indian bands. In order for a band to hold land, there must be band members. Chief Montour then highlighted what I would refer to as the "5 steps to extinction":
(1) In order for a person to be a band member, they must be a status Indian.
(2) If there are no status Indians left in 100 years, then there are no band members.
(3) No band members means no band.
(4) No band means no legal entity left to hold reserve land.
(5) Crown lands without any legally recognized title holders escheats (reverts) back to the Crown.
In Chief Montour's words: "It's the biggest land grab of the century!" He went on to say that we all thought that residential schools were bad because they took away our language and culture. "This is worse: it takes away our identity." Chief Montour told the assembly that he is a Mohawk from the Mohawk Nation and he is proud to be Mohawk. He also explained that no one has the right to tell him that his grandchild is not Mohawk. He then concluded by asking the assembly whether they were working towards citizenship in their Nations or membership codes in their bands.
There is no doubt that gender discrimination or any kind of discrimination within the Indian Act has to be addressed in the interim. However, if we do not also have a bigger plan for our Aboriginal Nations in relation to citizenship; if we do not start acting as the Nations we are; and if we don't start asserting our jurisdiction with regards to citizenship (with or without the cooperation of Canada), then we are already well down the path towards legislated extinction and all the oil royalties in the world will not be able to save our future generations.
As Chief Montour said: "The choice is yours."
Please see my website at www.nonstatusindian.com and follow me on Twitter.
I can be contacted via e-mail at palmater@nonstatusindian.com
Chief William K. Montour, Six Nations of the Grand River Territory in Ontario.
Chief Montour is an inspiration to those who truly know him. He has decades of experience working on behalf of his people both inside and outside of the Canadian government and the Six Nations government. It wasn't Chief Montour that enacted the Indian Act and he certainly did not impose the assimilatory rules, regulations, and policies which have divided Nations and imported anger and distrust into our communities. He no more believes in Indian Act administration than I do. But he also seems to be aware of the present legal realities and has taken up those challenges with a view to making positive changes for the future.
At the AFN AGM which was recently held in Ottawa on December 9-11th, 2009, the assembly had to address a resolution to regarding Indian and Northern Affairs Canada's (INAC's) plan to amend the registration provisions of the Indian Act in a very minimalistic way, that will not address all of the gender discrimination raised in the McIvor case. The debate centered around membership and how it could be impacted by this legislation and disintegrated into a debate about how "band resources" would be at risk if additional members were added to the band lists. It was at this point that Chief Montour addressed the entire assembly and said that he was "confused". He asked them whether the discussion was one of citizenship or one of registration. He explained that by continually pursuing issues of registration, we are involving ourselves in our own assimilation.
He told the assembly that leaving our future to the legislators ensured that we would have no future. He referred to the AFN commissioned-study in 1992 which found that the registration system provides for decreasing numbers of Indians and that his own community of Six Nations which is over 26,000 members strong, would not have any registered or status Indians within 100 years. Under section 91(24) of the Constitution Act, 1867, the federal government has jurisdiction with regards to Indians and lands reserved for Indians. All reserve lands are therefore held by the federal crown for the use and benefit of Indian bands. In order for a band to hold land, there must be band members. Chief Montour then highlighted what I would refer to as the "5 steps to extinction":
(1) In order for a person to be a band member, they must be a status Indian.
(2) If there are no status Indians left in 100 years, then there are no band members.
(3) No band members means no band.
(4) No band means no legal entity left to hold reserve land.
(5) Crown lands without any legally recognized title holders escheats (reverts) back to the Crown.
In Chief Montour's words: "It's the biggest land grab of the century!" He went on to say that we all thought that residential schools were bad because they took away our language and culture. "This is worse: it takes away our identity." Chief Montour told the assembly that he is a Mohawk from the Mohawk Nation and he is proud to be Mohawk. He also explained that no one has the right to tell him that his grandchild is not Mohawk. He then concluded by asking the assembly whether they were working towards citizenship in their Nations or membership codes in their bands.
There is no doubt that gender discrimination or any kind of discrimination within the Indian Act has to be addressed in the interim. However, if we do not also have a bigger plan for our Aboriginal Nations in relation to citizenship; if we do not start acting as the Nations we are; and if we don't start asserting our jurisdiction with regards to citizenship (with or without the cooperation of Canada), then we are already well down the path towards legislated extinction and all the oil royalties in the world will not be able to save our future generations.
As Chief Montour said: "The choice is yours."
Please see my website at www.nonstatusindian.com and follow me on Twitter.
I can be contacted via e-mail at palmater@nonstatusindian.com
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