Sharon McIvor has been engaged in an epic 33-year battle against the federal government to prove that she, her children and her grandchildren are entitled to be recognized as Indians the same way her male relatives and their descendants are under the Indian Act. Earlier this month, McIvor, who is from Lower Nicola Band in BC, won yet another landmark legal victory. The United Nations Human Rights Committee released a decision in her favour and directed Canada to end the sex discrimination.

But while Canada has lost every court case since the 1980s on this issue, the federal government refuses to stop discriminating. This not only advances the government’s goal of legislative extinction of Indians, but it limits the number of voices who might oppose its resource extraction agenda on First Nations lands.

For many years, McIvor and her children were excluded from registration as “Indians” because of the Indian Act’s discriminatory registration (status) provisions that have treated Indigenous women differently if they marry a non-Indigenous person. She went to court to challenge this sex discrimination and won at both the trial and court of appeal levels in Canada. However, over the years the federal government has chosen to enact very limited amendments in response to those court decisions. This resulted in the exclusion of thousands of rightfully entitled Indians – mostly the descendants of Indian women. Eight years ago, McIvor decided she needed to take the case to the UN.

The Indian Act is federal legislation that is subject to section 15 of the Charter of Rights and Freedoms, which prohibits discrimination on the basis of sex. Even section 35(4) of the Constitution Act, 1982, which protects Aboriginal and treaty rights, guarantees equal enjoyment of those rights by male and female Aboriginal peoples. In both domestic and international law, sex discrimination in federal legislation, including the Indian Act, is illegal.

If sex equality is a constitutional guarantee, and the Constitution Act, 1982 trumps all other federal laws in Canada – why were McIvor and others forced to spend time and money fighting for the same rights Canadian women get to take for granted? The answer lies in our colonial history.

Canada has always targeted First Nations women for exclusion from the Indian Act as part of its overall Indian policy geared towards the elimination and assimilation of Indians. When colonial governments could no longer murder Indians or starve them or infect their blankets with smallpox, they tried residential schools to torture the Indian out of them. When that didn’t work, they stole their children and had them adopted into white families. When Indigenous people kept making babies, the government engaged in the forced sterilization of Indian women and girls – often without their knowledge or consent.

Knowing they could not eliminate Indians by force, the government designed the Indian Act to eventually legislate Indians out of existence. To speed up this process, they targeted Indian women and children for exclusion from both registration as Indians, and membership in their communities in a variety of ways. Indian women who married non-Indians lost their Indian status, as did their children. Daughters born to Indian men out of wedlock were excluded from registration. Indian agents, the government’s representatives on reserves, could also protest the registration of children born to Indian women out of wedlock. In fact, the success of assimilation depended in part on targeting Indian women. In the words of the department in 1920: “It is in the interests of the Department… to sever her connection wholly with the reserve.” At every turn, Indian women and their children were treated as lesser or non-Indians.

First Nations women were effectively denied the political voice to protest their exclusion, and, most importantly, their right to say no to the abuse that followed as a result.

The Indian Act had the effect of denying First Nations women their political voice. Unable to run in elections for chief and council, to live in their First Nations, to vote in referendums related to their reserve lands, to benefit from treaties, to access elders and other community supports or even have a seat at the negotiating tables between First Nations and Canada, First Nations women were effectively denied the political voice to protest their exclusion and the abuse that followed as a result.

The denial of our political right to say no as First Nations women includes our right to say no to hydro-fracking and the pollution of our water sources. It denies our right to say no to pipelines and the environmental destruction they bring to our lands and waters. It denies us our right to say no mining on our lands, which kills our insect, bird, animal and fish relations. It denies us the right to say no to toxic poisoning of our people from chemical plants on our lands. It denies us our right to say no to the invasion of our sovereign territories and the violent oppression of our peaceful land and water defenders by state actors like the police and military.

Canada knows all too well that were our Nations restored to their original balance – both in terms of population numbers and First Nations women’s positions of power – that everything would change. The Idle No More movement was just a taste of the power of First Nations women to educate, empower and mobilize the grassroots to defend our lands, peoples and sovereignty.

Canada knows that First Nations power could and would shift to its original balance if thousands of First Nations women and children were registered equally with their male relations – and it is this power shift that Canada fears the most. In this way, McIvor’s battle is about far more than inclusion in a colonial piece of legislation. Her battle is about preserving the sovereignty and power of our First Nations for the bigger battle ahead – the battle to protect our lands and waters from irreparable destruction.

The law requires that Canada end sex discrimination against First Nations women and children. The question is whether Canada will choose to be an outlaw or put action behind its alleged commitment to reconciliation.

Photo: Sabina Dennis, front left, and her sister Kumbayaz Dennis, back right, Dakelh women from the Lheidli T’enneh First Nation, carry wood on their backs that Sabina collected while walking through towns between Prince George and Smithers, BC. Dennis plans to burn a sacred fire to show support for the Wet’suwet’en Nation. January 16, 2019. THE CANADIAN PRESS/Darryl Dyck

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Pamela Palmater
Dr. Pamela Palmater is a Mi’kmaw lawyer from Eel River Bar First Nation. She is an author, activist and currently serves as Professor and Chair in Indigenous Governance at Ryerson University in Toronto.

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