Proposed status legislation an ambitious attempt to right Indian Act’s historical wrongs

Opinion

Imagine if the United States had the power to determine Canadian citizenship.

It would mean American lawmakers, American judges and American voters would be able to dictate who is and who is not a Canadian.

If Americans didn’t like a decision made by Canadians, for example, they could just simply announce whose opinions, perspectives and votes matter and whose don’t.

Sounds absurd, really.

Any nation that gives up the right to independently determine who makes up its citizenry — and decide who is entitled to the rights, responsibilities and privileges of living in that society — essentially gives up the power to determine what it is and where it is going.

Welcome to First Nations life.

Since Day 1 of Canada’s existence, First Nations have never had the legal ability to determine who is and who is not a “status” Indian — an individual recognized under Canadian law as a First Nation person with recognized Indigenous and treaty rights.

This power is located in the hands of bureaucrats in the federal government, who use a mixture of often-incomplete archival and genealogical records, mostly sexist marriage formulas and always-draconian political interests to make decisions about who is a “legal” Indian and who is not.

This has resulted in messy situations and serious human-rights violations throughout Canadian society, such as when First Nations women who married non-Indian men immediately lost their status, non-Indian women who married status Indian men gained status and generations of First Nations children — even with the same blood quantum — fall under different identity categories in the Indian Act.

The most brutal of this is the infamous “second generation cut-off” rule under Section 6 of the Indian Act, which states that status Indians with only one parent can pass on Indigenous and treaty rights only if they have children with another status Indian.

There are two types of status under Section 6: those who have two status parents are 6(1) and those with only one status parent are 6(2).

6(2) status Indians, like me, therefore have a difficult decision to make when choosing a partner to make a family with, as choosing anyone other than a 6(1) or 6(2) as a co-parent means your children’s and all of your future descendants’ rights will be lost forever.

Try explaining that on a first date.

To cover all of this historically would take up the rest of the column. I’ll just say that since Confederation and Section 91(24) of the Canadian Constitution, the federal government has been dead-set on controlling “Indians and lands reserved for Indians.”

And, more nefariously, on creating processes to eliminate legal responsibilities to working with Indigenous peoples, altogether.

Recent years have brought some changes, with human-rights legislation and the rise and recognition of Indigenous and treaty rights.

For instance, some First Nations have now devised and — ironically — have received federal approval for their band “membership codes,” which allow chiefs and councils to devise parameters for access to community programs, resources and funding.

That, however, is much different than access to legal Indigenous and treaty rights.

This has given a small measure of self-determining power back to First Nations but also led to some deep confusion about First Nations identity.

An approved band member, in some cases, may not be a status Indian.

Or, a status Indian listed with a First Nation band (through choice or force, such as some First Nation women, through marriage) may not be a member of that community.

Try to figure out those head-scratchers.

These are some of the many complicated problems the federal government has created over the last century-and-a-half of trying to control the legal identities of First Nations peoples.

Now, a new federal government-backed bill proposes to reinstate First Nations women and children who lost status unjustly, allow individuals to be listed with their “natal” (birth) communities and hand over control of First Nations citizenry and status to First Nations governments.

Introduced into the Senate last May, Bill S-2 is an ambitious attempt to right many historical wrongs, particularly as governments don’t tend to propose bills first in Canada’s upper house.

If it’s passed, status could be restored for nearly 6,000 people — including Sen. Michelle Audette, whose own mother experienced disenfranchisement.

And there could be more.

If senators respond to wide-scale calls this week and introduce an amendment to get rid of the “second generation cut-off” rule, something bigger will happen. Nearly 225,000 First Nations people could gain their status and rights back with the passage of the amended S-2.

And First Nations citizens won’t have to worry about bureaucrats and laws controlling who we choose to make our families with.

One thing the bill is lacking, though, is the legal right for First Nations to determine their own criteria for status.

The federal government doesn’t want to give up that much control yet.

Despite the absurdity.

niigaan.sinclair@freepress.mb.ca