Be a squeaky wheel to make Indian Act changes

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PRO BONO

Dear Tuma:

I am trying to help my cousin register her kids to our band, but am having a great deal of difficulty as the band registry says that the kids are non-Native. I believe that this is wrong.

Years ago when a woman married a non-Native she lost her status, but when a Native man married a non-Native women she received full status and their children did also. Then Bill C-31 came in and the Native women got their status back, but yet their children are considered non-status and their children get no status. Why? To me it still seems like the good old double standard issue where as woman we still are not treated equal as men. What about non-Native women who married and divorced Native men and remarried non-Native men? Their children can gain status.

I strongly believe that as Native women, we are still being treated unequal and the double standard is being passed on. I am still trying to help my cousin register her children here at our band, as they deserve to be. There has to be a way to help our people and help get them registered.

Bill C-31 Cousin

Dear Bill C-31 Cousin:

I do not believe that there is an Indigenous family in Canada who has not been affected in one way or another by Bill C-31. The passage of Bill C-31 may have taken away discrimination against women who married non-status men, but has transferred that discrimination to their children and grandchildren.

Simply put, a woman who lost her status due to marriage to a non-status regained it after the passage of Bill C-35, under section 6(1) of the Indian Act. Her children also gained status, but under section 6(2). [One parent has to be a registered status Indian where they are given status, but may not get band membership depending on whether the band has its own membership code.] If the children have children with a non-status person, then they are no longer eligible for status under either 6(1) or 6(2). It is possible that a non-Native woman who gained status before 1985 can marry another non-Native man and their children can gain status under 6(2).

There are a number of ways to help your cousin. Support her in her efforts to register her children. Recognize and treat her children as Native. Appeal the decision of the registrar and ask your band if it has a membership code. Lobby the government to change the Indian Act to eliminate the discrimination against children and grandchildren. Join your local Native organization that fights against this discrimination-the Native Women's Association of Canada comes to mind. Speak up and remember the squeaky wheel gets the grease.

Dear Tuma:

My child attends university and is funded by our tribal organization. This year the government has stated that students have to declare their living allowances so they have received a T4 for the year 2003. It is too bad that they have to declare this money as they attend school full time and are limited to working part-time. This will mean a tax bill at the end of tax season. My question: Is the tribal organization required by law to deduct income tax off the living allowance? If income tax is deducted at source, it will be a lot better for the students especially at tax time.

Taxed Out Momma

Dear Taxed Out Momma:

Scholarships and bursaries are considered taxable income and educational living allowances can be considered taxable income. However, personal property of a status Indian is considered tax-exempt under section 87 of the Indian Act. The living allowance from the tribal organization would be considered non-taxable as it is paid by a First Nations organization to a status person. Your child does not have to declare the income as taxable because it may be considered exempt so long as the income is located on a reserve (where the tribal organization is located).

There are other facts you should consider. Your child can use the moving expenses as deductions from the living allowance and the tuition credits even if the tribal rganization paid for the tuition. Only the student can claim the tuition credit and if the student cannot use it then it can be transferred (up to $5,000) to either a parent or a spouse who then can use it to reduce their taxes.

This column is not intended to provide legal advice, but rather highlight situations where you should consult with a lawyer. Tuma Young is currently studying for a PhD in Law at the University of British Columbia and questions can be sent to him via email at: puoin@telus.net or care of the Windspeaker editor at edwind@ammsa.com.