12 Jul 2012, Posted in Articles,Short FUSE, 0 Comments
Legislative Oppression of Indigenous Women in Canada
By Pamela Palmater
The following text is excerpted from FUSE Magazine 35-3 (July 2012). The accompanying full bibliography is exclusively available online for your reading pleasure. For more, please consider subscribing, or purchase the article below.
Since time immemorial, the Indigenous Nations on Turtle Island (what is now known as Canada), have lived as sovereign Nations, with their own sophisticated governments, political systems, complex legal regimes, trading networks and economies, well-trained militaries, defended territories, rich cultural traditions, customs and practices, as well as unique worldviews and belief systems. Indigenous governance systems were varied across Turtle Island and leadership roles took a variety of forms, including sachems, sagamaws, elders, hereditary leaders, leaders of clans and houses, and councils of elders. These Nations had powerful male and female leaders, negotiators, politicians, strategists and traders. Their traditional Indigenous laws, theories and legal traditions had been refined over time and worked well for thousands of years for their Nations and local communities, clans, houses and districts. These systems were not extinguished upon the assertion of Canadian sovereignty over Indigenous territories and thus remain at the core of Indigenous governance today.
The specific roles of Indigenous women varied depending on the specific Indigenous Nations, whether they be Cree, Mi’kmaq or Maliseet. But in general, “men and women were equal in power and each had autonomy in their own lives.”  In addition to raising children and passing on their cultures and languages, Indigenous women were also involved at the political level. Depending on the specific Nation, Indigenous women not only selected their leaders, but they also helped control access to territories and had equal influence within their Nations’ political affairs. It is therefore no surprise that Indigenous women were central in core creation myths and are represented as equals in traditional teachings.
However, colonization in Canada and the state’s corresponding laws and policies relating to Indigenous peoples, lands and resources have wreaked havoc on Indigenous peoples and Nations—physically, socially, culturally, politically and spiritually. The underlying policy objective was to eliminate Indigenous peoples over time.  This would not only ensure access to Indigenous lands and resources for settlement, but would also reduce the Crown’s financial, treaty and other obligations to the Indigenous peoples. Early laws divided traditional Indigenous Nations into hundreds of tiny reserves, made it illegal for lawyers to assist Indians in their claims against the state, outlawed cultural practices and instituted gender discriminatory rules for determining who was and was not an Indian. 
The Indian Act defined Indigenous peoples as “Indians” with criteria that specifically excluded Indigenous women and their children, as well as the female children of Indian men. Indian and Northern Affairs Canada (INAC) also created a governance system which excluded and oppressed Indigenous women and placed them in an unequal position vis-à-vis their male counterparts. INAC incorporated specific criteria into the Indian Act to decide who is and is not an Indian based on outdated racist notions of blood quantum that originate with the pseudo-science of eugenics. These rules were also combined with gender-specific exclusions that specifically targeted Indigenous women for exclusion. This left many generations of Indigenous women and their children outside of the protection of their communities and Nations. While the Indian Act is the worst example of federally imposed colonial legislation that will lead to the legislative extinction of Indigenous peoples, it is also the federally controlled access point for the necessities of life for many Indigenous peoples.
INAC has tied law, policy and finances to concepts of Indianness, first tying it to male blood and then to resources. Thus, in order to live on one’s home reserve, or access vital housing, education or health programs, one must be registered as an “Indian.” Up until 1985, all Indigenous peoples required Indian status to be members of their band (First Nation) and without it one could not (practically speaking) access elders, language speakers or cultural ceremonies and practices. Genocidal policies and programs such as residential schools, scalping laws and forced sterilization all disproportionately targeted Indigenous women, and INAC’s legislative policies are no exception.
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 See Aboriginal Justice Inquiry of Manitoba, below.
 P. Palmater, Beyond Blood: Rethinking Indigenous Identity and Belonging (Saskatoon: Purich Publishing, 2011).
 See Venne; Wilson; Indian Act, R.S.C.  c.I-5; Indian and Northern Affairs Canada, Mineral Resource Potential of Indian Reserve Lands (1991), below. Reserves comprise only 0.02% of land in Canada, a fraction of the territories held traditionally by Indigenous peoples.
Indian Act, R.S.C. 1985 c.I-5.
Indian Act, 1951, c.149 at s.12(1)(b).
Parliament of Canada, “Bills Before Parliament”, online.
Venne, Sharon, Indian Acts and Amendments 1868-1975: An Indexed Collection (Saskatoon: University of Saskatchewan, 1993).
Wilson, Zandra, ed., The Indian Acts and Amendments 1970 – 1993: An Indexed Collection (Saskatoon: University of Saskatchewan. 1993).
Case Law and Submissions:
Attorney General of Canada v. Lavell,  S.C.R. 1349.
Canadian Bar Association, “Bill S-4 Family Homes on Reserves and Matrimonial Interests or Rights Act” (Ottawa: CBA, 2010) at 9.
McIvor v. Canada (2007) No. A941142 Order of Justice Ross dated June 8th, 2007.
McIvor v. Canada,  S.C.C.A. No. 234,  2 C.N.L.R. 236,  2 C.N.L.R. 72.
Palmater, Pamela, “Presentation to Standing Senate Committee on Human Rights Re: Bill S-4 – An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves” (7 June 2010).
Sandra Lovelace v. Canada, Communication No. R.6/24 (29 December 1977), U.N. Doc. Supp. No.40 (A/36/40) at 166 (1981) at paras. 15-19.
Sharon McIvor and Jacob Grismer v. Canada, (24 November 2010) Communication submitted for consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights to the United Nations Human Rights Committee.
Alfred, Taiaiake, Wasase: Indigenous Pathways of Action and Freedom (Toronto: University of Toronto Press, 2009).
Borrows, John, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010).
Neu, Dan, Therrien, Richard, Accounting for Genocide: Canada’s Bureaucratic Assault on Aboriginal People (Blackpoint, NS: Fernwood Publishing, 2003).
Palmater, Pamela, Beyond Blood: Rethinking Indigenous Identity and Belonging (Saskatoon: Purich Publishing, 2011).
Blair, Peggy, “Rights of Aboriginal Women On- and Off-Reserve” (Vancouver: Scow Institute, 2005) at 3.
Boyer, Yvonne, National Aboriginal Health Organization, “Discussion Paper Series in Aboriginal Health: Legal Issues” (Saskatoon: University of Saskatchewan & NAHO, 2006) at 14-16.
Isaac, Thomas, Maloughney, Mary Sue, “Dually Disadvantaged and Historically Forgotten?: Aboriginal Women and the Inherent Rights of Aboriginal Self-Government” (1991-92) 21 Man. L.J. 453.
Ladner, Kiera, “Indigenous Governance: Questioning the Status and the Possibilities for Reconciliation with Canada’s Commitment to Aboriginal and Treaty Rights” (Vancouver: National Centre for First Nations Governance, 2006).
Palmater, Pamela, “Stretched Beyond Human Limits: Death by Poverty in First Nations” (2011) Can. Rev. Social Policy 65/66.
Palmater, Pamela, “When Legislators Make Bad Law: Bill C-3’s Assault on Democracy” (2011) vol.15, no.2 Aboriginal Law – Ontario Bar Association.
Aboriginal Affairs and Northern Development Canada, “Benefits and Rights”, online.
Aboriginal Justice Inquiry of Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba (Manitoba: Manitoba Government, 1999), online: at Chapter 13 “Aboriginal Women”.
Clatworthy, Stewart, “Factors Contributing to Unstated Paternity” (Winnipeg: Four Directions Project Consultants, 2003).
Hull, Jeremy, “Aboriginal Single Mothers in Canada, 1996: A Statistical Profile” (Winnipeg: Prologica Research Inc, 2001).
Indian and Northern Affairs Canada, “Mineral Resource Potential of Indian Reserve Lands” (Ottawa: INAC, 1991), online: AANDC.
Native Women’s Association of Canada, “What Their Stories Tell Us: Research findings from their Sisters in Spirit Initiative” (Ottawa: NWAC, 2010).
Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Minister of Supply and Services Canada, 1996).
Sayers, Judith, et al., “First Nations Women, Governance and the Indian Act: A Collection of Policy Research Reports” (Ottawa: Status of Women Canada, 2001) at 9.
Media, ATIPs & Miscellaneous:
Barrera, Jorge, “Sisters in Spirit program used by feds to ‘squeeze’ Native Women’s Association of Canada” (4 November 2010), online.
Custom Election Codes, (copies of custom election codes obtained via Access to Information and Privacy Request to INAC).
Groves, Robert, “First Nation Identities: Options for the Determination of Indian Status and Band Membership (Draft)” (and other documents received via Access to Information and Privacy request dated Oct.28, 2011).
National Post, “Assembly of First Nations withdraws from Pickton Inquiry” (11 October 2011), online.
Palmater, Pamela, “Murdered, Missing and Still Excluded: Indigenous Women Fight for Equality” (Toronto: Indigenous Nationhood, 2011), online.
Rabson, Mia, Winnipeg Free Press, “Feds misleading on election rules: chief” (Winnipeg, March 2, 2012), online.
Senate of Canada, Proceedings of the Standing Senate Committee on Aboriginal Peoples (29 February 2012) at page 41-43.
Senate of Canada, Proceedings of the Standing Senate Committee on Human Rights (7 June 2010) at 54.
Pamela Palmater is a Mi’kmaw citizen and member of the Eel River Bar First Nation in northern New Brunswick. She is the mother of two boys, Mitchell and Jeremy, and has been a practicing lawyer for 14 years, specializing in laws impacting Indigenous peoples. She is currently the Chair in Indigenous Governance and heads the Centre for Indigenous Governance at Ryerson University. She holds four university degrees, her most recent being a Doctorate of Law (JSD) from Dalhousie University. She was recently awarded the 2012 YWCA Woman of Distinction Award in Social Justice for her advocacy in Indigenous women’s issues.