Native Council of Canada Comment
On June 28, 1985, sections of the Indian Act were declared in violation of the Charter of Rights and Freedoms and Bill C-31 became law.
The bill, which restored Indian status to 118,000 Indians who had lost status for one reason or another was challenged by three Alberta First Nations; the Sawridge First Nation in northern Alberta, led by Chief Walter Twinn, the Tsuu T'ina First Nation located outside Calgary and the Ermineskin First Nation of Hobbema.
A July 6 (1995) decision supporting Bill C-31was brought down by the federal courts, much to the delight of many C-31 Indians. But on July 24 (1995), the plaintiffs announced they would appeal the court's decision. Under the Indian act prior to amendment (Bill C-31), those who lost their Indian status included:
· Native women who married non-Native men (Native men who married non- Indian women did not lose their status and their wives were allowed to live on reserve and became status Indians).
· Indians who took scrip, (which gave them $200 and a quarter section of land in return for their Indian status and the status of their descendants);
· Indians who were "enfranchised," or stripped of their status, for any reason, including wanting to vote, to drink, to own property, to live in another country, or to become a lawyer or clergyman;
· Indian children who were illegitimate;
· Indians who served in the Armed Forces;
Calling Federal Court Justice Francis Muldoon's judgment "insulting, degrading, without legal merit and amounting to a judge's personal statement of political beliefs rather than a reasoned determination of legal issues," Chief Walter Twinn said it was " the most anti-Indian pronouncement of recent judicial history."
The eight-month court case, held in both Edmonton and Ottawa, heard testimony from women who had lost their status, Elders and other witnesses. Twinn and the other plaintiffs insist that the case is not racist or sexist, but is about who controls band membership and is an effort to protect their communities.
"It means that band members who live on or off the reserve have no say in who is or who is not a member," Twinn said. Instead, the decision is left up to bureaucrats in Ottawa or Hull, Que.
"It's not just where do you draw the line, but who draws the line," said Catherine Twinn, Walter's wife and legal counsel for the plaintiffs."Who has the powers" she added.
Accepting people in the communities, people who had perhaps never lived on the reserve, could be dangerous, Catherine Twinn continued. Those band members would have the power to vote and could possibly unite and, if they outnumbered the long-term community members, could vote to liquidate band assets and to sell the land.
For Walter Twinn, whose band assets are worth anywhere from the $14 million the Department of Indian Affairs and Northern Development credits him with, to $100 million, as estimated by other sources, that threat could be a formidable one. Twinn won't disclose his band's financial worth saying it's "not good business" to do so.
Of the more than 600 bands in Canada, a total of 79, or 13 per cent, face a potential population increase of more than 100 per cent. The majority, 379 bands, or 62 per cent, face membership increases of between 10 and 30 per cent.But not all, or even most, of those reinstated band members want to live on the reserves. The Native Council of Canada conducted a random survey of Indians affected by Bill C-31, and less than one-half of those surveyed wanted to return to the band.
Of those, about 70 per cent wanted band membership so they could regain some of their culture, not to go home to live on the reserve.
8/95
Sawridge, Tsuu Tina and Ermineskin First Nations commentEDMONTON
Ed. note: This is the main text of a July 24 joint press release of the Sawridge, Tsuu T'ina and Ermineskin First Nations.
On July 6 (1995), Judge F. Muldoon of the Federal Court trial division dismissed our claim that sections of the Indian Act are unconstitutional as being inconsistent with section 35 of the Constitution of Canada by infringing the Aboriginal and treaty rights of Indian Bands or First Nations to determine their membership.We will appeal this Judgment in the Federal Court of Appeal.
Judge Muldoon's 124-page decision can only be described as the most anti-Indian pronouncement of recent judicial history. The plaintiff bands-Sawridge First Nation, Ermineskin First Nation and Tsuu T'ina First Nation-view this judgment as insulting, degrading, without legal merit and amounting to a judge's personal statement of political beliefs rather than a reasoned determination of legal issues. Of greatest concern is the extinguishment of community rights covering band membership and use, possession, occupation and control over reserve land.
There is a litany of complaints to be heard about the judge's bizarre comments and apparent lack of reasoning, examples of which include:
· Judge Muldoon stated that "membership, use, occupation and benefit of Indian lands was not asserted by the plaintiffs putative ancestors... in the least degree."
Despite the fact that Indian nations were the original inhabitants of this land, which they agreed to share by treaty with others, they are now being told, by an exercise in judicial revisionist history, that they never controlled their societies or their territories;
· Judge Muldoon found that Indians "lost" their societies upon the coming of Europeans, and experienced "false, puppet chiefs and social granulation."
He says that this caused the Indians themselves to request "the government to assert control, for and on their behalf, as in the statutes, so in the treaties". So he finds that any Aboriginal or treaty right to control Indian reserve community membership or the use and occupation of reserve land are forever extinguished in law;
· Judge Muldoon's focus is on the statutory return to Indian status and band membership of the women who lost their status under the old section of the Indian Act.
He incorrectly treats Indian status and band membership as synonymous, even though he was aware that the plaintiffs never challenged a return to Indian status of anyone, and only challenged returns to band membership to the extent that the government rather than the bands made the decision to grant membership. Moreover, the judge totally ignored the fact that the women returning to membership represent only a tiny fraction of the total new membership population of 118,000, being forced into the bands by the government.
· He went on to refer to Indian peoples as "more primitive" and adolescent" compared with the others (non-Indian) "adult" states;
· According to Judge Muldoon, the ancient oral history of Indian peoples and their tradition of handing down to each generation the stories of their cultures and histories provides information which is "so unreliable," amounting to what he sees as "skewed propaganda, without objective verity";
He described the oral history evidence given at the trial by Elders as "ancestor advocacy or ancestor worship," which he sees as "one of the most counter-productive, racist, hateful and backward-looking of all human characteristics," and at odds with government-created documents alone which he calls the "authentic historical record";
· His expressed opinions insultingly deny the obvious truth that Indian peoples had their own distinct organized societies before European contact, and that each had a clear cultural identity and internal rules of membership and organization;
· He denounces the legal concept of the "honor of the Crown" in dealings with Indian communities, stating it to be "nothing more than a transparent semantic membrane for wrapping together Indian reserve apartheid and perpetual dependence on Canadian taxpayers";
We believe the very existence of Indian bands in Canada is threatened by the Federal Court's ruling. It cannot go unchallenged.
8/95
OPINIONS"It's bad enough that we were stripped of our rights because our mothers married out of our band - married non-Aboriginals- the children were discriminated against. The whites didn't want us because we had Indian in us. Indians didn't want us because we had white in us. We didn't belong anywhere.
"Now that we finally have our God-given right to be part of our band again, they have no right to tell us 'Sorry, we don't want you'. Who are they to discriminate against their own people, only when it's to line their own pockets."
Yvonne Studley,
member of the Kitamaat First Nation in B.C.,
now living in Thompson, Man.
"I am myself a C-31 and I'm lucky because of it. I'm glad that we have Bill C-31, because if the government didn't take me back, then I wouldn't be able to pass on my Indian heritage to my children.
"If it were up to the bands, I think they would be a bit more discriminatory and I don't think I would have got my status if my band had the choice of choosing who would be a member.
James Delorme
of the Cowesses First Nation, Sask.
now living in the Coast Salish Territories.
"Those people who were stripped of Indian status never should have been stripped. It was a mistake that the Government of Canada made and I think that we should start laying the blame with the Government of Canada and stop fighting amongst ourselves.
"I walked to Ottawa to change the Indian Act. I walked from Oka, Que. to Ottawa in 1978 to change the Indian Act and to stop the discrimination, but I still believe bands should have the right to decide for themselves who their own members are. This is why we recommended that the women be reinstated and her children and that the rest of the main membership should be left up to the band. But we also recommended an appeal process for the band. We knew there would be some bands that would not be willing to take the women back and we recommended an appeal process that the government didn't put in.
Caroline Ennis of Nagootkook, N.B.
"I feel Bill C-31 Indians should be accepted as members of the band that they so rightly belong to. The Indian Act controls us from the very signing until the end. Those who fight Bill C-31 are wasting their energies on the lost battles. My people, let's be positive and work towards unity and help increase the level of living among the First Nations of Canada."
Heather Poitras
of the Sawridge Band, living in Edmonton.
"I think that bands should accept Bill C-31, because these are our people. These people are Aboriginal. They are our brothers, our sisters. They are all family. I feel that Aboriginals who discriminate and laugh at Bill C-31s do not even realize that the Government of Canada is laughing along with them and at them."
Bruce McGregor
of the Sagamok Anishnawbek First Nation, Ont.