For an interesting look at the effects that s. 12(1)(b) of the Indian Act (women lost Indian status after marrying non-Indian) is still having on aboriginals in Canada, even after being repealed in 1985, here’s Bordeau Santore (Estate) v. Bordeau.
For fear of losing her house after “marrying out,” Theresa Bordeau Santora, a Mohawk woman from Kahnawake, allegedly “gave” her house to her nephew, Lewis Bordeau, in 1974, on the condition that she could live there until her death. Though living in Brooklyn, N.Y. for many years and raising a family there, when she officially regained her Indian status in 1987 (after Bill C-31 was passed in 1985) she attempted to regain the reserve land several times via contact with Indian Affairs. She was not successful. Upon her death in 2001, she had bequeathed the Kahnawake land to her children, which ultimately led to this litigation.
41 Pursuant to the Civil Code of Quebec, and setting aside for a moment the Indian Act, Theresa Santoro would have been a legatee by general title when her mother bequeathed in her will of September 3rd, 1971 the right to possession of the land in question. However, when there are conflicting provisions, the Indian Act prevails over provincial civil law. Section 88 of the Indian Act states that all laws of general application in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with the Indian Act and except to the extent that those provincial laws make provision for any matter for which provision is made by or under the Indian Act. Public law expressed in the Indian Act supersedes private law set out in the Civil Code in case of conflictual provisions.
42 When Mary Bordeau died on September 4th, 1973, Theresa Santoro did not and could not become a legatee by general title of the land, because of the prohibition then in force in the Indian Act: she became a non-Indian following her marriage and thus was barred from acquiring such right of possession by will or descent. The bequest of the two lots is deemed to have lapsed, because that land could not be devolved to her, due to her legal incapacity to accept it. The right of possession remained in the intestate succession of Mary Bordeau. Again, due to her non-Indian status, she could not inherit.
43 The rules of devolution of the Civil Code could have applied, still subject to the same condition: only an Indian may inherit such land in a reserve. Through representation of his late father Angus, Lewis Bordeau was an eligible heir, along with other Indian and eligible heirs in the family. The right to possession of the land could only be transferred to an Indian by the estate. Consequently, such right never entered the patrimony of Theresa Santoro; it did not belong to her. The amendments to the Indian Act in 1985 do not have a retroactive effect; they cannot validate what was not valid twelve years before. The bequest of the land was void. Section 28(1) of the Indian Act provides that any deed, instrument, document by which a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.
44 One cannot give what one does not have. Theresa Santoro did not transfer to Lewis Bordeau a right to possession which belonged to her. Such right, remaining in the estate of Mary Bordeau, was transferred in her capacity as liquidator of the estate to Lewis Bordeau on June 17th, 1975.
45 Similarly, Theresa Santoro could not dispose in her will of August 16th, 1999 of a right not legally belonging to her, still in the patrimony of Lewis Bordeau. That bequest of the land to her children is null and void. She never had a certificate of possession of that land, as required by s.20 of the Indian Act.
46 Lewis Bordeau is the only one entitled to the lawful possession of the land at issue. Theresa Santoro agreed to transfer to him the right owned by Mary Bordeau and her estate. He is still in such lawful possession, as evidenced by the certificate of possession issued under the Indian Act. Simply put, the only question to decide is the following: was that right of possession transferred to him on a permanent and irrevocable basis or was it subject to a condition, similar to a right of redemption, such condition being that the land would be transferred back to Theresa Santoro if and when she would have regained her status as an Indian.
Turtle Talk 