Signed contract puts assistance in jeopardy

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Pro Bona

Dear Tuma:

I have a question for you. Can you help me with it? A couple years ago the chief gave out a bunch of loans through the fisheries. So, anyways, now they are saying they are going to start taking deductions off my welfare cheque. Can they do that to me?

Need All My Ration

Dear Need:

No, the band cannot seize or garnish your welfare cheque in order to pay off the loan. Each province has legislation prohibiting the seizure of social assistance benefits (and the band has to follow provincial standards, even though the program is administered through DIAND). Welfare is the minimum amount of assistance that you require in order to live. If they seize it or start withholding any amount, you can appeal the decision to Indian Affairs or take them to court (with the help of Legal Aid).

The band will be hard pressed to find a judge that will let them seize welfare payments, but they can obtain a court order seizing other assets, such as money left in a bank account or your furniture.

P.S. Since you sent me this email, I have found out that you have signed a contract stating that you authorize the band to deduct the loan payments from your social assistance. This is not a good idea for both the band and you. The band will have a difficult time collecting a loan from someone who is on social assistance and you may be left with no money to live on.

Dear Tuma:

Can anyone, government included, seize an Indian's bank account from a bank or credit union located on a First Nation?

Protecting My Assets

Dear Protecting:

A non-Indian cannot seize the bank accounts of an Indian if those bank accounts are located on reserve. The actual accounts have to be on reserve land. It is not enough that the head office of a particular financial institution is situated on reserve or that a bank machine is on reserve.

Dear Tuma:

I was wondering if you could explain how a person with treaty status is able to work and live in the U.S. How would health care be covered?

My husband and I have been married for 25 years, which gave me and our children treaty status. There seems to be some confusion between this and Bill C-31. The government considers me status, but when I talked to U.S. Immigration they were not clear on what the procedure is.

Stopped By U.S. Immigration

Dear Stopped:

The Jay Treaty is a treaty between the United States and Great Britain signed in 1794. Article 3 of the treaty allows Indians on both sides of the border to cross freely. The U.S. Immigration service interprets this section as applying to Indians who have at least 50 per cent blood quantum. The status cards issued by DIAND are not recognized by U.S. Immigration, because they can be issued to folks who do not have at least 50 per cent Indian blood and who are not eligible for the Jay Treaty rights and privileges.

Before crossing, you should ask your membership clerk or officer to draft up a letter stating that you have at least 50 per cent Indian blood and then you can cross the border under the Jay Treaty.

Health care for Canadian Indians is covered under your provincial plan, plus under Health and Welfare Canada through the non-insured health benefits program. You should contact both of them to see about your health coverage before you head south.

Dear Tuma:

I have a custody question: three children involved in a family with separated parents. One parent has sole custody of two of the children; the other had sole custody of the remaining child.

Reasonable access to the children is granted to both parents and no financial contribution from either party is given. Each parent is responsible for the children in their care.

Circumstances have changed. The parent with custody of two children is now on welfare. The other child has died. There is a step-parent in the picture. Can one parent ask that this step-parent not be present when the children are visiting? Is the original custody agreement still in place or can it be changed? We are fighting over oney, custody and visits.

Strung Out By Born-Again Super Parent

Dear Strung Out:

The original custody and financial agreement may no longer be relevant and needs to be updated. What you need to do is to go see a lawyer and ask that the court revisit the original custody/child support order to reflect the current financial and visitation circumstances.

This column is not intended to provide legal analysis or opinion of your situation. Rather this column is meant to stimulate discussion and create awareness of various situations in which you should contact a lawyer. If you have a question you would like to see addressed in this column, please email me at tumayoung@hotmail.com