Exploring inequities under the Indian Act.

Author:Simon, Cheryl
Position::Canada
 
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INTRODUCTION

The lives of Aboriginal women have been deeply affected by Government policy. The Indian Act (1) (the Act) was enacted in 1876 and continues to govern the lives of status Indians. The Act has long discriminated against women and eroded cultural values and practices within the Mi'kmaq nation.

In 1982 the Canadian Constitution (2) was repatriated. The new Constitution included the Canadian Charter of Rights and Freedoms (the Charter). As part of the supreme law of Canada, the Charter guarantees the protection of individual rights. For many Canadians, this was a positive step ensuring government could not infringe on their rights. However, in an effort to balance the collective and individual rights of Aboriginal people, the implementation of the Charter not only failed to protect Aboriginal women in our First Nation, it enshrined a system of discrimination where remedy would prove to be extremely elusive.

As Mi'kmaq, the legal history of the Act's membership provisions cannot be viewed in an objective manner. The women in our family live under the Act and are born, married and give birth within the Act's regime. The Act has impacted not only how we view ourselves, but also how we are treated by our extended family and Canadian society. While these issues impact men as well as women, our story will be told through the experiences of Mary Jane Jadis (grandmother), Judy Clark (Mother), Cheryl Simon (daughter) and Declan Simon (grandson).

We are from Abegweit First Nation and our membership is determined by a custom code that was developed under section 10 of the Act. This paper traces the development of our community's Custom Membership Code, the on-going problems with the Code, and our options for seeking justice. Much has been written about the discrimination in the Act, and the recent attempt by Bill C-3 to address the discriminatory provisions. However, the amendments have had little impact on our Membership Code and we feel that we must share our story to help people understand why.

This paper is a search for a safe and effective forum to discuss our membership issues given the love we have for our children and the lessons learned from our ancestors. We have permission to share our family's story with you. As mothers, we are givers of life and teachers and will carry these obligations until we are Grandmothers. (3) Our method of teaching involves telling stories. People must draw lessons from the stories they hear. What is asked in return is that you treat our story with respect.

MI'KMA'KI

We are members of the Mi'kmaq nation. Our territory, Mi'kma'ki, is divided into seven districts located in eastern Canada. The majority of our family live within the Epekwitk aq Piktuk district which includes the island Epekwitk, also known as Prince Edward Island (PEI). Traditionally, family groups made use of specific areas within the district for their livelihood. Each district had a Saqamaw (4) who spoke for the people. The Mi'kmaq Grand Council brought the district Saqamaq's together to decide issues that affected the nation as a whole.

After the French lost the battle for North America, the British annexed the island with the Royal Proclamation of 1763. Upon acquisition, the British had Epekwitk surveyed. The island was divided into lots and a lottery held in London; no consideration was given for the rights of the Mi'kmaq.

Mi'kmaq continued to live on what became known as Lennox Island off the western coast. The Aborigines Protection Society purchased Lennox Island for the Mi'kmaq in 1870. The island became a reserve and a Band under the Indian Act, 1876. (5) Three more reserves would be added, purchased primarily by philanthropists groups: Scotchfort, Morell and Rocky Point.

The people who settled these reserves were Mi'kmaq and membership was determined according to Mi'kmaq law. There is no question that there were non-Native people who were part of these communities, but Mi'kmaq law was inclusive.

On PEI, non-Natives married Mi'kmaq people and were accepted by their family, they were adopted by Mi'kmaq people and brought up according to Mi'kmaq culture, or they moved to the community and lived a life that aligned with Mi'kmaq cultural values and were accepted.

However, the Canadian government viewed people of mixed heritage differently than the Mi'kmaq. Our first Prime Minister, Sir John A McDonald, stated in 1885 that "[if] they are half-breed, they are [considered by the government to be] white." (6) Another big change was that the Mi'kmaq nation had always been matrilineal. However, under the Indian Act, lineage passed through the male line. The government's exclusive view of heritage coupled with the patrilineal system would undermine the role women played in the governance structure of the nation. From the time the first Indian Act was passed, the government approach would create an assimilationist policy with long-lasting effects.

MARY JANE

Mary Jane Thomas was born on January 26, 1921 in a campsite in Tyne Valley, which is located on the mainland, across from Lennox Island. Her mother passed away when she was 5 years old and she lived with various family members until her father remarried.

Mary Jane was only able to obtain 2 years of education in Lennox Island. As a teenager she was sent to Shubenacadie, Nova Scotia with her sister, but did not attend the residential school because they were at full capacity and not accepting students. She returned to Lennox Island when she was sixteen. (7)

Mary Jane met Francis Frederick Jadis (Frank) when she was 17 years old. Frank was born in Kentville, NS and his family was from Sipekne'katik district and had been put on the Shubenacadie Band List. As a young man, Frank had joined the Merchant Marine in the United States (US) during World War II. By serving in the US, he avoided becoming an "enfranchised Indian", a legal status which serving in the Canadian army would have granted. Enfranchisement would have caused him to lose his Indian status. Compared to others at the time, Frank was considered to be an educated man because he had obtained a grade ten education.

Frank and Mary Jane were married on March J, 1938 when she was 17 and he was 30. It was an arranged marriage, but Mary Jane was happy because she thought he was a good man whom she could grow to love. Because Frank had avoided enfranchisement, they both remained status Indians upon their marriage.

It was customary for Mi'kmaq men to move to the woman's community when they were planning on getting married. They would live there for a year and if the family approved, they would marry and remain with her family. While we do not know the extent this custom would have had an effect on them, we do know that Frank and Mary Jane moved to Nova Scotia but returned shortly thereafter because Mary Jane missed the island and her family.

This practice was in contrast to the patrilineal system established by the Act. In addition, the governance structure was a patriarchy and politics was a male arena, one which Frank soon entered. Frank was Chief of Lennox Island Band on Sept 4, 1951 when new amendments to the Act came into force. (8)

The amendments were troublesome. A central registry was created to list those registered as Indians. These people would be entitled to live on the reserves and receive other benefits. The amendments did not change earlier Act provisions that defined "Indian" in a manner that treated men and women differently. Now, Section 12(1)(b) provided that a women who married a non-Indian was not entitled to be registered. In contrast, section 11(1)(f) stated that the wife or widow of any registered Indian man was entitled to status. (9) These provisions emphasized the male lineage. An Indian woman lost her status once she was married. Any adopted children had to be registered.

The effect was immediate. The Lennox Island Band Council in 1951 was comprised of five members. One of the councillors was James Tuplin. James was not born Mi'kmaq, but had been given up at three months and raised on Lennox Island (10). He was the adopted child of his Mi'kmaq family and spoke Mi'kmaq as a first language. He married a Mi'kmaq woman and they had children. However, he was not registered as an Indian. In 1951, the Indian Agent. (11) informed him that as non-Indians he and his family would have to leave the reserve.

Mary Jane's younger sister, Aunt Josephine, married a non-Indian. She lost her status and was not entitled to live on the reserve. Unfortunately, her marriage did not last. Although she was no longer married, she was still a non-Indian and not entitled to come home. Judy remembers how Aunt Josephine and her children could only come back to visit for two weeks at a time. She could not even be buried with her family because the cemetery was on reserve. Aunt Josephine's loss was poignant because family ties are an extremely important element of Mi'kmaq culture.

Mary Jane would have 14 pregnancies with 7 surviving children. (12) Judith (Judy) Jadis was born in 1955 and was the eldest of two daughters. They continued to live on Lennox Island but would move to Maine for blueberry and potato harvesting seasons. Frank taught his children about the Indian Act, the Peace and Friendship Treaties and the Jay Treaty; it was the Jay Treaty that enabled them to work across the border.

Mary Jane and Frank worked hard to provide for their growing family. They were gifted basket makers and taught their children how to fish and live off the land. They were surrounded by a large extended family and Mi'kmaq was the language spoken at home. While family life continued to follow the natural cycles in Lennox Island and Maine, Canada was entering very tumultuous times politically.

As Chief, Frank was a member of the National Indian Brotherhood (NIB) and was often in Ottawa. The organization was a result of the growing Aboriginal identity that grew out of the resistance to the 1969 White Paper. The White...

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