Membership issues illustrate cultural differences

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A weary collection of Manitobans, and one Alberta chief, arrived in Vancouver in time to catch the last couple of days of the Assembly of First Nations annual meeting last July.

They walked almost 2,000 km from The Pas to Vancouver to raise awareness of the fight that many Indigenous people are waging to secure status and/or band membership in the curious, bureaucrat-created, post-Bill C-31 world.

Bill C-31, as most Native people know, was the 1985 amendment to the Indian Act that the Government of Canada, under then-prime minister Brian Mulroney, enacted in the face of several Supreme Court of Canada decisions and international pressure to remove discrimination against Native women from the Indian Act. Before the law was changed, a Native woman who married a non-Native man lost her status but a Native man who married a non-Native woman did not. In fact, the non-Native wife of a Native man actually gained status under Canadian law. There are still many women who acquired status solely by marriage before 1985 who remain status Indians.

That bothers some Native people, especially those who have significant Native bloodlines but still can't secure status for themselves or their children. Native leaders say the bureaucracy has turned the whole process of deciding who is an Indian and who isn't into an exercise that has no foundation in common sense.

Nathan MacGillvary organized the walk from The Pas to Vancouver. He's desperate for help in a Federal Court of Canada case that could decide the heritage of his granddaughter, Dakota. Dakota's mom, MacGillvary's daughter, was an unwed mother who chose not to disclose the name of the father to the federal government. Non-Native women in that predicament aren't even asked the question. But Native women who are asked the question - and refuse to answer - find that the government workers assume that the father is non-Aboriginal (whether that's the case or not). That arbitrary policy decision affects the status of the children and their children, increasing the chance that future generations will lose their status.

MacGillvary believes the regulations the Department of Indian Affairs has created to deal with deciding who is an Indian and who isn't are designed to eliminate Native people and the cost that Native entitlements impose on the federal treasury. He gives it about 50 years if something isn't done soon.

"A lot of people think they have a treaty number and they're safe. But that treaty number isn't good enough," he said. "All these regulations are designed to eliminate First Nations and treaties and within 50 or 60 years, that's what they'll do if we don't wake up."

Chief Richard Davis of the northern Alberta Swan River First Nation joined MacGillvary's long march because he feels his community's membership is threatened by the department of Indian Affairs' membership regulations.

"My grandchildren could be affected," he said. "Bill C-31 is the most aggressively genocidal assimilation project the government has ever introduced. We've never been consulted about any of these government regulations and that's wrong. Our legacy is ours to determine. You can't determine culture through legislation and you can't extinguish culture through legislation but that's what's going on."

Another Alberta band located not too far from Swan River was in the national spotlight a few years ago when it tried to fight for the right to decide who belongs on the membership roll and who doesn't. The Sawridge band was widely portrayed as an oil-rich band whose small number of members wanted to make it impossible for others to join the band because they didn't want to share the wealth. Lawyer Catherine Twinn, a Sawridge member, went on the attack telling reporters that the real issue, the more important issue, is who decides membership. She argued that the band should have the right to decide who is a member of its community, not the federal government. The case is scheduled to return to cort in the near future; examinations are scheduled for next month. But Chief Davis said it doesn't matter whether you think the Sawridge members are being greedy and exclusionary or not because they're right about the importance of controlling their own membership list.

"They knew C-31 was about extinguishment long before anybody else," he said of his neighboring band.

Viola Thomas, the president of the United Native Nations in British Columbia, represents the interests of the off-reserve residents in that province. Since First Nation leaders believe that government funding has not kept up with the jump in membership that C-31 caused when it restored status to women and their children who had lost their status when they married non-Natives, the band council leadership has not been in a position to actively provide services to their off-reserve members. In many cases, reserve residents resent the newcomers who add more strain to already limited budgets. Thomas said that's one aspect of the issue that the women who fought for the Indian Act change didn't anticipate.

"Sandra Lovelace and the Native Women's Association of Canada never anticipated that the change in the discriminatory provision would create a bigger headache than the provision itself," she said. "They never, ever anticipated that when Bill C-31 kicked in, it would have these 27 legal categories. That's what has to be challenged - the right to self identify. I always use the analogy of immigrants who come to Canada. They agree to learn English and give up their identity, their right to self define. But for Aboriginal people that was imposed. The definition that eroded our right to self define was imposed. That process also destroys our matrilineal forms of identities. Historically, culturally, all first peoples were always recognized through their ancestors. With the erosion of that evolved a patrilineal definition that totally destroyed those rights to self definition. I think it's part of the White Paer policy. They still want to assimilate and disband their fiduciary obligation for Aboriginal people."

A recent decision in a British Columbia court case has Thomas excited. She called the Wilson decision a "fabulous decision" saying the court recognized that the Indian registrar's insistence on documented proof of Native heritage was an unfair burden on many Aboriginal people.

"That was a very, very interesting case because it really affects a lot of our people, particularly Aboriginal people who, at the time the Indian Act kicked in and the registrar came on stream, were excluded from the list because of their traditional activities like trapping or being a veteran. What that decision basically reaffirms was that, for those individuals who don't have the adequate paper documentation for application for membership, the registrar now has to factor the oral history. It's a very interesting case because quite often the paper stuff is used against our people who are wanting to register," she said.

And while Harry Daniels, president of the Congress of Aboriginal Peoples, the national organization that lobbies on behalf of off-reserve residents, angrily points out that there's no way to challenge a decision of the Indian registrar in court, Thomas warns that at least there's an internal appeal process within the Department of Indian Affairs.

"If you don't apply to the department for your application and you only apply direct to the band, you have no recourse for appeal if you appeal to the band unless the band has an appeal component within their band membership code and many of them don't," she said. "We always tell people, 'Don't go to your band, go through the registrar, because then at least you have that recourse for appeal.'"

Thomas sees all the problems caused by Bill C-31 to be the result of the government not keeping its promises to not impose greater hardships on First Nations by enacting the bill.

"The other thing that's got to be exposed is the broken romise from the Red Book that promised to enhance resources to deal with the needs of persons becoming reinstated. There's no doubt that part of the systemic attitudes that's been inherited by the some of the bands is that it's Bill C-31 or the urban Indians that's causing all the problems with our budgets, when in essence the problem rests with the federal government itself in underestimating the projections on reinstatement and secondly, capping resources to First Nations.

"By doing that, what you're effectively doing is cultivating a polarization amongst the Aboriginal community where you then get Indians blaming Indians when it isn't Indians that are the enemy here. It's how the federal government has chosen to prioritize their budget allocations."

Gerald Taiaiake Alfred, a Mohawk academic who teaches Indigenous governance at the University of Victoria, said there are a lot of very difficult issues involved in the question of who decides who is an Indian. He worked on the controversial membership code of his home community of Kahnawake and he believes tough measures are required to take back control of who decides status and membership. The new membership code in Kahnawake states that at least half of your family has to come from the community if you are to be welcomed as a member.

"It's easy to talk about things in the theoretical sense but when you are last representatives of your nation on earth and you are last of your blood line and you are last people holding onto last little bit of land you have, I don't think it's out of all reason to get a little defensive," he said. "If people want us to be entirely welcoming and entirely inclusive, it would need to be a welcoming and inclusive world where we would be allowed to live without persecution and we would have a land base where we could be who we truly are. We're like a trapped animal."

He points out that the first Indian Act, enacted in 1851, contained no discrimination against women marrying outside th