Court adds to membership case law

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In a landmark decision that could have far-reaching implications for First Nations across Canada, a Federal Court judge has determined that a Saskatchewan Indian band broke the law by denying one of its members the right to cast a ballot in band elections.

Judge Andrew MacKay ruled that the Sakimay First Nation near Grenfell, violated the Indian Act as well as the Canadian Charter of Rights and Freedoms by refusing to extend voting privileges to Sakimay band member Mary Vicky Scrimbitt.

The judge's decision, which was rendered in late October, is being hailed as a victory for so-called Bill C-31 Indians, a group that includes First Nations women who were once denied official Indian status because they married non-Native men.

Bill C-31, which was passed by the House of Commons in 1985, restored Indian status to First Nations women regardless of their spouse's racial origin. Nonetheless, some First Nations leaders have refused to recognize this provision and have balked at restoring voting rights to these band members. According to C-31 opponents, the authority to reinstate full rights and privileges to C-31 members should rest with band councils, not with federal politicians in Ottawa.

Scrimbitt lost her Indian status in the early 1970s when she married a non-Native. After regaining her Indian status in 1985, Scrimbitt said she was treated like any other band member and was even allowed to run in a council election in the early 1990s.

But in 1993, Scrimbitt was told she wasn't eligible to vote in band elections because of her marriage to a non-Indian. She was also denied the right to vote in subsequent band elections in 1995 and 1997.

The Sakimay First Nation acknowledged that Scrimbitt had been granted some rights on the reserve but suggested she was ineligible to vote because band councillors hadn't yet approved her reinstatement as a band member.

The band also claimed it was adhering to policies established by the Federation of Saskatchewan Indian Nations (FSIN) and the Assembly of First Nations (AFN).

But in his ruling, Justice MacKay dismissed those arguments, stating that the provisions of Bill C-31 were indisputable in the Sakimay case.

"The basis claimed for the denial of her (Scrimbitt's) right to vote was that she was a Bill C-31 member of the band," MacKay stated in his ruling. "In my opinion . . . her status as a band member was settled by Bill C-31 and by her subsequent application to DIAND and the department's restoration of her status."

When asked about the judge's ruling, Sakimay Chief Gilbert Panipeksick declined to comment specifically on the case, saying only that the Sakimay First Nation was reviewing its options and seeking legal advice on the matter.

Chief Panipeksick agreed the issue could have far-reaching implications for First Nations across Canada and said FSIN leaders have been consulted.

"We're not really in a position to make a statement right now," he said. "What we're trying to do now is to figure out what's our position with regard to this? Are we going to file an appeal or is this going to open the door to all of our C-31s?"

The Sakimay First Nation is located about 125 km east of Regina.

Fay Blaney, a leading advocate of Native women's rights and vice president of the National Action Committee on the Status of Women (NAC), said the Sakimay ruling could have far reaching implications for other high-profile cases - most notably the Twinn case - that involve the fundamental rights of Native women.

Blaney, the co-author of a comprehensive research project on Bill C-31 and First Nations women, said violations of basic individual rights are alarmingly common on Canada's reserves. The research project is being conducted on behalf of the Aboriginal Women's Action Network (AWAN).

"When our research project became public, it was amazing how many calls we were actually getting," said Blaney. "We received a lot of calls from Native women who said they were being mistreated in their own communiies and a lot were having trouble with reinstatement."

Despite its shortcomings, Bill C-31 confers official Indian status and full membership to all Native women who lost their status via marriage but were later reinstated by DIAND, Blaney said.

She also pointed to a severe lack of support services for Native women whose fundamental rights are being ignored.

"These kinds of violations will continue to occur until there are more resources available," Blaney said. "I think it (the Sakimay Case) illustrates that Native women have the right to vote and the right to access their communities and their culture. What we really require are more services that these women can go to for help."