Recent legislation (Bill C-3) passed in the Canadian House of Commons will allow grandchildren of Canadian women who lost their Indian status through marriage to have their own status restored.
Bill C-3 extends the Indian designation to eligible grandchildren of women who lost it by marrying non-Indian men before April 17, 1985 and will become law with Senate passage, expected early next year. It is forecasted that the the law will add up to 45,000 people to the Indian Registry.
The House of Commons passed the bill last week, which will bring the Indian Act into compliance with the Canadian Charter of Rights and Freedoms. The government had to amend the act by Jan. 31 or see part of it struck down by the courts.
The government introduced Bill C-3 after the British Columbia Court of Appeal ruled, in McIvor v. Canada (Registrar, Indian and Northern Affairs), that parts of the Indian Act which cut off status from the grandchildren of the women violate the charter. Grandchildren of Indian men already could pass their status onto children and grandchildren.
This differing treatment for Indian men and women has a long history.
In 1970, Sandra Lovelace, a Maliseet woman from the Tobique reserve in New Brunswick, Canada, married a non-Indian man. They divorced a few years later and she decided to move back home “on the rez.” Unfortunately for her, Canada’s Indian Act revoked her Indian status because of her decision to marry a white man. Inversely, when an Indian man married a non-Indian woman, he did not lose his Indian status. Though Lovelace was allowed to live with family on the reserve, she and her children were still denied education, housing, and health care.
Two Native Women’s groups (Indian Rights for Indian Women and National Native Women’s Association) had already been protesting the odious sections of the Indian Act through sit-ins, marches, and through the courts. They reached a judicial dead end in 1973, when the Supreme Court of Canada, in Lavell v. Canada (Attorney General), held that the unequal treatment was legitimate, regardless of Canada’s Bill of Rights.
There cannot, in my view, be any doubt that whatever may have been achieved by the Bill of Rights, it is not effective to amend or in any way alter the terms of the British North America Act and it is clear from the third recital in the preamble that the Bill was intended to “reflect the respect of Parliament for its constitutional authority …,” so that wherever any question arises as to the effect of any of the provisions of the Bill, it is to be resolved within the framework of the B.N.A. Act.
It follows, in my view, that the effect of the Bill of Rights on the Indian Act can only be considered in light of the provisions of s. 91(24) of the B.N.A. Act whereby the subject of “Indians and lands reserved for Indians” is assigned exclusively to the legislative authority of the Parliament of Canada.
Obviously getting no reprieve from within Canada, Lovelace went international, requesting help from the Human Rights Committee of the United Nations. However, the UN was slow to act and it was not until 1981 that it found that Canada was in breach of the International Covenant on Civil and Political Rights. For those interested, here’s a useful source for the exchanges between Lovelace and the United Nations.
The UN’s decision caused considerable international embarrassment for Canada, compelling the government to amend the Indian Act. Those amendments came in 1985 by way of Bill C-31, which allowed for the reinstatement of status to Indian women and her children. But not her grandchildren.
25 years later, enter, McIvor.
Turtle Talk 