Indigenous Women’s Identity

Posted 20 May 2016

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The Context of Colonialism and Identity

In Canada, the Indian status is a juridical identity assigned to people recognized as being Indian by the federal government and it determines accessibility to special services reserved for Indians (tax exemption, land cannot be sold or mortgaged). How does this “identity” impact people’s lives, and in particular the lives of women?

The Evolution of Juridical Identity as defined by the Canadian Government

Beginning in 1850, the government of Canada put in place a set of laws with the stated objective of gradually assimilating Indigenous peoples into the new majority of European settlers. These laws were the first steps toward appropriating Indigenous land and resources by Canada. Indeed, the stated objective was to reduce the number of people with Indian status, especially within the context of treaty “benefits” for Indians and land allocation for reserves that depended on the number of people with status. The fewer the number of Status Indians, the less amount of land would have to be allocated to them.

In 1876, these laws were integrated into a framework law called the “Indian Act” that was adopted by a Parliament from which Indigenous people were excluded without even the right to vote (until 1960).

Canada imposed on Indigenous peoples its patriarchal vision of family and identity:

[…] Until 1985, only an Indian man could pass on “Indian” status to his spouse, even if she was non-Indian, while Indian women automatically lost their legal status upon marriage to a non-Indian. Under the “Indian Act“, a brother and sister both raised by Aboriginal parents found themselves in diametrically opposed situations with respect to their culture and territory, if they married a non-Indian. […] The brother’s children were recognized as Indians whereas the sister’s children became “Whites” under the Act.²

After many years of struggle led in particular by QNW, the Act was changed in 1985 via C-31:

Section 6(1) allows an Indian woman who marries a non-Indian before 1985 to restore her status which she lost through this marriage. Her children, born out of this marriage, also recover their status as Indians, but under Article 6(2). In order for their children to also obtain status as Indians, they must marry someone who has status.³

After Bill C-31 was passed, the status of over 130,000 people was restored between 1995 and 2005.

Despite the changes, under Department of Aboriginal Affairs and Northern Development policy, if a woman, who has a child, does not enter the name of the father and if he does not legally declare his paternity, the department automatically considers the father as non-Indigenous. This practice inevitably impacts the status of the child. In fact, if the mother has status under section 6(2) of the “Indian Act”, her child will not be granted status, and this even if the biological father is a Status Indian. Likewise, if the mother has full status (under section 6(1)), then her child will have partial status (6(2)) limiting his or her legal capacity to transmit status to future offspring. Before 1985, a child born to a single mother was given the mother’s status.
Bill C-3: It was adopted following the judgment of the Court of Appeal for British Columbia in the case of Sharon McIvor, an Indigenous woman from the province. She argued the granting of status was discriminatory between her grandchildren and those of her brother, both of whom had married non-Indigenous spouses. Her brother’s grandchildren had Indian status, even if they married non-Indigenous spouses, while Sharon’s did not have status if they were born before 1985. This argument convinced the Court and it forced the federal government to modify its law.

It is for this reason that Bill C-3, adopted in 2010, gives the right to register with the Indian Register under section 6(2) to any grandson or granddaughter of an Indian whose status was restored under C-31 (meaning women who married non-Indians or men whose mother or grandmother were non-Indian). With status under section 6(2), they can transmit it only if they marry a spouse with status, whether under 6(2) or 6(1). QNW estimates 45,000 people can use this law to restore their status.

“Status Indian” continues to be transmitted administratively according to the criteria set by the Canadian government and has nothing to do with knowledge of Indigenous peoples’ culture, language or land affiliation.

“Juridical identity” was not always defined by the federal government. In fact, at the beginning of colonization: Aboriginal societies were well-organized not only socially, but economically and legally as well, with separate government structures (including hereditary systems, clan systems, military systems, federations and confederations). Aboriginal women enjoyed a level of respect, equality and political power to which European women of the time could not aspire. Many Aboriginal societies were matriarchal, semi-matriarchal and matrilineal. Aboriginal women therefore played a vital role in families and communities alike, as their children’s first teachers, healers and givers of life.¹

Membership Codes

Since 1985, Indian bands have been able to determine their own rules regarding band membership through a majority vote of adult members. This is called a Membership Code: in 1999, 360 of the 610 First Nations determined membership according to the provisions of section 11 of the “Indian Act”.

There are four main types of codes:

One-parent rules, whereby a person is eligible for membership based on membership or eligibility of one parent.
Two-parent descent rules, which declares that to become eligible, both of a person’s parents must be members or eligible for membership.
Blood quantum rules, which base eligibility on the amount of Indian blood a person possesses (typically 50%).
“Indian Act” rules, that base membership on section 6(1) and 6(2) of the “Indian Act”.

38% used the one-parent rule, 28% had a two-parent requirement, 13% had a blood quantum criteria, and 21% relied on the “Indian Act”.⁴

In some cases, membership codes are more restrictive than the “Indian Act”. For example, in Kahnawake there are 9,531 people with Indian status: 6,154 are members, 72 are resident non-members, 4 are suspended members and 3,301 are non-members.

In some cases, codes are less restrictive than the “Indian Act”. Nevertheless, barring exceptions, subsidies and transfers granted to bands by the federal government are calculated based on the number of Status Indian individuals in the community.

An example of a less restrictive code is found in the Nunavut agreements of 1993: “An admissible person ‘is an Inuk as determined in accordance with Inuit customs and usages,’ who ‘identifies himself or herself as an Inuk,’ and who is associated with the Nunavut Settlement Area. However, historically, the Inuit have not been subject to the “Indian Act”.⁵

Status, Identity and Citizenship: Is there a Difference?

“ The legal status conferred by the Canadian government and the Aboriginal identity felt by each individual […] are two very different things. Yet, legal status and membership in a band are two determining factors when it comes to enjoying certain rights within the community. In fact, both provide the possibility of living on a reserve and obtaining housing, attending bilingual school or participating in cultural and spiritual life. When this is denied, people are forced to live in cities where it is more difficult to transmit their culture to their children and where Aboriginal identity is even more fragile.”⁶

Terms: Status; Identity; Citizenship. What are the differences between them?

Status: a term used in Canadian legislation to designate a person who is listed in the Indian Register, who has a right to services intended for the people listed and who must conform to the obligations prescribed by law.
Identity: a broader term that refers to the way individuals or peoples define themselves. This includes personal identity, but also national identity or group identity.
Citizenship: a term linked to the capacity to exercise mainly political rights, as a member of a community. For example, Canadian citizenship gives a person the right to vote. The membership codes of certain bands list the criteria required for band membership and to have the right to vote, to services, to land and to a house.

Identity according to International Instruments

Article 9 of the United Nations Declaration on the Rights of Indigenous Peoples discusses identity in the following manner: “Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.”

Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (No. 169) (Convention 169) from the International Labour Organization stipulates in Article 1 “2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.”

The position of Quebec Native Women on Identity

“QNW thus urges the Canadian Government to eliminate the categorization of status by recognizing the inherent right of Aboriginal peoples to define who can be a citizen of their nation and what obligations and rights are entailed within their definition. However, this must be done in accordance with international human rights law. Indigenous peoples have the right to govern themselves, to reinforce their own forms of government and citizenship – not as a grant from the Government of Canada, but as an inherent right as peoples who have occupied these lands from time immemorial.”⁷

Factors to Consider:

How are people without “Indian status” treated in your community? Do they have a right to services? Can a person be Indigenous without having status? Can a person be a member without having status?

Is there a membership code that defines who is or is not a member in the community? If so, what does it state with regards to a woman married or living with a Non-Indigenous spouse? How are people from the community who live in cities treated? And their children?

Identity from our Perspective

Judicial identity was defined by people other than Indigenous people themselves. And this identity has had consequences on the people affected by it. How, then, can an Indigenous woman define herself from lived experience and culture?

To do so, the following question must be answered: “What does it mean to me to be an Indigenous Woman? An Innu or Abenaki woman?”

What are the different facets of Identity: Land? Language? The community? Family? If living in a city, what determines Indigenousness? If a person has only one Indigenous parent, is that person Indigenous? Can a person become Indigenous even without Indigenous parents? Who decides? Does one have to live in the bush to be Indigenous? Know the history, speak the language? Are there many ways to be an Innu or Abenaki woman? Who do communities recognize as being members of their nations?

[1] Quebec Native Women, Defining Aboriginal Identity and Citizenship: Issues and Avenues for Reflection, Kahnawake, 2012
[2] “Canadian Aboriginal Women: Legal Discrimination.” Indigenous Women of the Americas, Sheet 6. Rights and Democracy, 2006.
[3] Rights and Democracy.
[4] Membership Codes from Indian Status and Band Membership Issues, Megan Furi, Jill Wherrett, Library of Parliament, Political and Social Affairs Division
[5] Nunavut agreement cited by Sébastien Grammond in “L’identité autochtone saisie par le droit” in Pierre Noreau and Louise Rolland (dir.), Mélanges Andrée Lajoie, Éditions Thémis, 2008, p. 285-329.
[6] Rights and Democracy.
[7] Quebec Native Women, Position Paper on Bill C-3, presented to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, House of Commons, Kahnawake, 2010.