Transcript
Speaker: I'm Jane Williams, this is the Red Eye Podcast. In our show today, Lorraine Chisholm talks with Sharon McIver about her decades -long fight for equality for women under the Indian Act.
Speaker: Last month, the Canadian government finally ended discrimination in the Indian Act on the basis of sex. Dr. Sharon McIver is a member of the Lower Nicola Band and a lawyer who fought against this discriminatory legislation for over three decades. In 1985, Canada had amended the Indian Act ostensibly to remove discriminatory treatment of First Nations women who married non -Indians.
Speaker: Yet those amendments continued to withhold Indian status from the descendants of those women who regained status. Sharon McIver launched a landmark case to gain equality and won a sweeping legal victory in 2007. But the Canadian government continued to fight against full equal status for Native women. This was despite equality protections in the Charter as well as international human rights laws to which Canada has agreed to be bound.
Speaker: On September 15th, provisions to end 143 years of sex -based discrimination came into law, and Sharon McIver joins me in the studio. Congratulations, Sharon. It's just mind -blowing how long you've been fighting this case.
Speaker: Thank you. It has been a while. Now, you were a law student in 1985 when the government changed the Indian Act to remove the discriminatory treatment of Native women, or ostensibly did. Tell us about that time and how you got involved.
Speaker: Well, it's been an issue for me my entire life because my family line has suffered from this discrimination. And in 1985, it told us that, okay, all the discrimination's gone. Those have been discriminated against. We'll have their opportunity to have status. And so I applied. And I applied for myself and my three children. And I got a decision that I
Speaker: would only get the status for myself and not my three children, and I would not have the ability to pass on my status to my three children. And so that started, that was in September of 1985, I put in the application. It wasn't until 1989 that I was finally told, because I had appealed back to the registrar, and I was finally told
Speaker: that no, the registrar's decision was final. I could have status. My kids could not. And so in July of 1989, I filed a petition to the court, the legislation provided that if you get the final decision from the registrar, you can take it into the court system. And in July of 89, I did that.
Speaker: Now, just so that to help people understand the meaning of this, what rights do status Indians have that non -status don't? Well, mostly it's recognition, like recognition that you are an Indian and a recognition that you belong to a group of Indians.
Speaker: But there are benefits that the government recognizes they owe to those who they recognize as status. And those include the medical, education, tax exemption, those kinds of things that were treated differently than non -status people.
Speaker: Aside from the benefits, what impact did not having status have on you? Due to 100 -odd years of colonization, I wasn't recognized as an Indian, although you looking at me today would probably think that I should be, because I definitely look like one. But that, I think, was the biggest impact. Not only was the impact with
Speaker: with the people that I encounter because they look at me and they consider me an Indian and I'm treated accordingly. But the people that are in my community or other communities, I do a lot of traveling across the country and around the world. And in Canada, the first thing they would ask me is, which band do I belong to?
Speaker: And I didn't belong to a band. And I had differential treatment than someone who had a number. My sister -in -law, for instance, has a band number. And she has absolutely no Aboriginal heritage. But she would be treated different because she could bring out her little card and show it. So we were really socialized to understand that the only way that we could be recognized as an Indian
Speaker: is to have that card or access to that card. So I think for me that was really a crucial piece and the other piece was belonging to the band that my grandmother belonged to.
Speaker: My grandmother was born on our reserve and lived her entire life there, as did her siblings and all of that. And so I had no access to that band, and that band did not recognize me as one of them. So for me, that was the biggest piece.
Speaker: By the time I got to having status, I was well situated with my work and that, so I didn't need any benefits. I really needed the recognition.
Speaker: that your case finally received a judgment in 2007. That seems like a pretty long time to me. And it was described as a sweeping victory for you legally. What did Judge Ross say or decide? She basically said that what we'd been arguing all along is that our male members are treated better than the female members
Speaker: if we both married out, meaning that the spouse that we have is a non -indigenous person or non -recognized as status. So the men, when they married out, they got basically mostly white wives. The white wives then got a status number. And those who married out, like my mother,
Speaker: her husband was not recognized and she immediately lost her recognition. So her mother, who continued to have full status, and her daughters, because my mom wasn't the only daughter that married out, couldn't partake in eating food that was caught due to
Speaker: being in Indian fishing or the hunting out of seas and that kind of thing that was starting to be recognized more. Well, if my grandmother or my grandmother's family gave my mom
Speaker: five salmon that they'd caught on their usual harvest, what they were able to do right up until she lost her recognition, they could and would be charged with distributing Indian fish to those who were not eligible by virtue of the marriage.
Speaker: and not being able to go and stay on the reserve with her mom and ultimately not being able to be buried on reserve with her family. My mom is in the city cemetery because when she died in 1973, she didn't have status yet. So in a sense, just a cutting off of your heritage, your cultural heritage.
Speaker: Well, they could cut off the physical piece, like we went fishing every year.
Speaker: when all the other Indians were fishing we would go fish just because we needed it and on principle and it wouldn't be unusual for my family to be reported and the fish wardens to come down and take all of our fish and all of our equipment and yet my mom's brother next door fishing beside us
Speaker: He was fine. They had exactly the same parents. But what happened was my mom's brother was an Indian by virtue of birth and he married a non -Indian, but he still could fish and feed his family and my mom could not fish and feed her family.
Speaker: Now, the government had used a lot of different tactics to undermine and delay that case for 17 years, but unbelievably you had to fight an appeal to that case. What was the Canadian government's stance? Well, they changed their tactic at that point.
Speaker: What they first said is that me, my mom's children, didn't have two Indian parents. They had one Indian parent and then no Indian parent when they were born, and then when they gave them status, they only had one Indian parent. All of the others, all of the men who married non -Indian women, their wives were given status, so they had two Indian parents. And so that's what they had been fighting all along.
Speaker: And then when it got to the Court of Appeal, they said, well, in 1951, September the 4th, 1951, they made legislation that was set to determine
Speaker: a child born of a mother who did not have status, he got status through marriage, and a grandmother who had got status through marriage. It's called the double white mother rule. Then at 21 they would lose their status. And so they compared then our situation to that. So they said that we shouldn't
Speaker: as the granddaughter of an Indian woman.
Speaker: I couldn't pass my status on to my children. And that started in 1951. So that's what they argued, and that's what the BC Court of Appeal agreed with. And so they didn't know what to do with it, because 21 years later, so on September the 4th, 1972, that's when the first children that were born after the legislation
Speaker: would start losing their status and they got about 200 of them and the Chiefs went to the government and asked for a moratorium. The BC Supreme Court ruled in 2009 that Canada had until 2010 to make the necessary amendments to the Indian Act. Why did these amendments not fully recognize your descendants until now? It's 2019.
Speaker: Well, they actually narrowed that decision of the BC's Court of Appeal. They should have given
Speaker: All of us, according to Madam Justice Ross, they put some parameters around it, but they just didn't do it. When we lobbied them to say, you know what's wrong, and you have a fiduciary duty to make sure that there's no discrimination left, they acknowledged that. And it was the Harper government at the time, but they chose to do it that way anyway. We had a fight, and they didn't clean it up, and we had been fighting for them to clean it up.
Speaker: And there's a small group of us. We got the senators on side, and the senators changed it to take all of the discriminatory legislation out and make it equal at law. And they sent it back to the House of Commons, and the House of Commons changed it back. And the Senate said, okay, if you send it back to us, which you have to, we will change it back. And then in September,
Speaker: told the Senate, okay, we'll do this. And they put two sections in that would clean up the discrimination, but they didn't declare them law. That was in December 2017. So finally you took it to the UN, and finally there has been at least a legal formal cleanup of the act. Well, I did. We filed our petition with the UN in November of 2010.
Speaker: We did not get a decision from the UN, mostly because Canada kept telling them that they're doing it, it will get done. And finally, in January of 2019, the Human Rights Committee of the UN said, okay, we're making a decision and told Canada, do it. You're in violation of your international covenant.
Speaker: What kind of impact could the provisions to completely end discrimination for all the generations and all the permutations have for the descendants of First Nations women who lost status?
Speaker: Well, we had estimated when the McIver case was decided, we understood there would be 350 ,000 that would be eligible. And the McIver decision added about 45 ,000. And they tell us anywhere between 270 ,000 and 450 ,000 people that will be caught. This is a closed group. It's people that are already born. And so it's a closed group.
Speaker: And then what about reparations? Can the loss of status and benefits that should have been conferred on women and their descendants, can it be rectified? Well, the United Nations Committee said that the reparations have to be done according to their decision. And I haven't even put my mind to it to tell you the truth, because the recognition was what I wanted.
Speaker: And I think if we're going to do anything about this whole colonization and have pushed the people to where they are, we've got to know who we are. And we've been told who we are for 143 years now. And so we've still got a lot of work to do.
Speaker: I mean, we're talking about the Indian Act, which I think we should acknowledge is a colonial project. And 30 years seems to be a long time to be fighting the federal government on such a basic issue as women's equality. So as a First Nations woman, as a lawyer, why do you think the government put up so many roadblocks to try to obstruct your rights for so long?
Speaker: Well, first and foremost, the Indian Act is a tool of assimilation. And they knew that if they took us out, the children that would remain, many of whom have non -indigenous mothers and the residential school survivor mentality, they knew that we would be so busy trying to survive that
Speaker: the issue around land and resources, or you know, in B .C. for the most part, have not been resolved. But that was it. You know, it is, as the missing, murdered, indigenous women and girls inquiry found that it was a tool of genocide. They wanted to get rid of us. And, you know, 150 years later, we're still here, how
Speaker: how well we're functioning is questionable. But there are a whole lot of us that know who we are, where we belong. And I've got a beautiful 19 -year -old granddaughter who's ready to step in and take up the fight. There's some pretty impressive.
Speaker: Young activist, First Nations women out there for sure. Oh yeah. Are there dots that we should be connecting between this decades -long foot dragging on the part of the Canadian government and other issues facing Native women in particular?
Speaker: Well, absolutely, the Missing and Murdered Inquiry found that the key piece to the place where Indigenous women are in their murder and disappearances is that ongoing discrimination in the Indian Act. And it hasn't changed. You know, we've got the inquiry, we've got law now that says that the lawmakers were not doing what they should be doing, but we have women
Speaker: disappearing or being murdered, indigenous women, on the average of three a day. At the last count, I haven't looked at the count for maybe two or three months, but it was about three a day that have been missing or murdered. And we've got big targets on our back about, you can kill, rape, hurt these women, and nobody will care.
Speaker: It seems like this legal fight for equal status for women is finally over, at least in the formal sense. And your unbelievable persistence in the face of this has paid off in that sense. What are your reflections on the struggles ahead for Indigenous Canadians as activists and those of us who want to be allies to work to decolonize Canada's relations with First Nations people? What we brought to the table when the Europeans came in was
Speaker: It was a world view that didn't have anything to do with economy and resource extraction. What we brought to the table and many of us still have is that born obligation to protect.
Speaker: our environment, protect our land, and, you know, our relationship with everybody, everything is one of mutual respect. And we've got to go there. We actually have to talk about it and go there. That's what we can bring if we could get out of the harness of the Capitalistic Society.
Speaker: And I was just doing some research up in Haida Gwaii on the Gwaii Highness and just just reignited that obligation that we have and that's to look after each other.
Speaker: when they said, well, the decision actually doesn't affect me directly because all of my descendants that were born before 1985 have what they had their status in that. So it didn't affect any of them.
Speaker: or any of my family. And they said, well, why did you keep doing it? I said, because we're responsible for those that come behind us. And whether we're directly related to them by blood is totally irrelevant. And I guess the other piece is we are responsible for all of the next generations, including those non -indigenous ones too.
Speaker: Well, I really appreciate your joining me today. It's inspiring to hear your story and to know what a courageous fight that you fought and will take strength from you in the fight ahead.
Speaker: Thank you. I've been speaking with Dr. Sharon McIver. She has fought a three decades long battle for equal status for First Nations women and their descendants under the Indian Act. This past August, the Canadian government finally changed the act to recognize all status Indians and their descendants equally. The Red Eye podcast is produced at the studios of Vancouver Co -op Radio. You can support us by supporting Co -op Radio.
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