Exploring Inequities under the Indian Act

By Simon, Cheryl; Clark, Judy | University of New Brunswick Law Journal, January 2013 | Go to article overview

Exploring Inequities under the Indian Act


Simon, Cheryl, Clark, Judy, University of New Brunswick Law Journal


INTRODUCTION

The lives of Aboriginal women have been deeply affected by Government policy. The Indian Act (1) (the Act) was enacted in 1876 and continues to govern the lives of status Indians. The Act has long discriminated against women and eroded cultural values and practices within the Mi'kmaq nation.

In 1982 the Canadian Constitution (2) was repatriated. The new Constitution included the Canadian Charter of Rights and Freedoms (the Charter). As part of the supreme law of Canada, the Charter guarantees the protection of individual rights. For many Canadians, this was a positive step ensuring government could not infringe on their rights. However, in an effort to balance the collective and individual rights of Aboriginal people, the implementation of the Charter not only failed to protect Aboriginal women in our First Nation, it enshrined a system of discrimination where remedy would prove to be extremely elusive.

As Mi'kmaq, the legal history of the Act's membership provisions cannot be viewed in an objective manner. The women in our family live under the Act and are born, married and give birth within the Act's regime. The Act has impacted not only how we view ourselves, but also how we are treated by our extended family and Canadian society. While these issues impact men as well as women, our story will be told through the experiences of Mary Jane Jadis (grandmother), Judy Clark (Mother), Cheryl Simon (daughter) and Declan Simon (grandson).

We are from Abegweit First Nation and our membership is determined by a custom code that was developed under section 10 of the Act. This paper traces the development of our community's Custom Membership Code, the on-going problems with the Code, and our options for seeking justice. Much has been written about the discrimination in the Act, and the recent attempt by Bill C-3 to address the discriminatory provisions. However, the amendments have had little impact on our Membership Code and we feel that we must share our story to help people understand why.

This paper is a search for a safe and effective forum to discuss our membership issues given the love we have for our children and the lessons learned from our ancestors. We have permission to share our family's story with you. As mothers, we are givers of life and teachers and will carry these obligations until we are Grandmothers. (3) Our method of teaching involves telling stories. People must draw lessons from the stories they hear. What is asked in return is that you treat our story with respect.

MI'KMA'KI

We are members of the Mi'kmaq nation. Our territory, Mi'kma'ki, is divided into seven districts located in eastern Canada. The majority of our family live within the Epekwitk aq Piktuk district which includes the island Epekwitk, also known as Prince Edward Island (PEI). Traditionally, family groups made use of specific areas within the district for their livelihood. Each district had a Saqamaw (4) who spoke for the people. The Mi'kmaq Grand Council brought the district Saqamaq's together to decide issues that affected the nation as a whole.

After the French lost the battle for North America, the British annexed the island with the Royal Proclamation of 1763. Upon acquisition, the British had Epekwitk surveyed. The island was divided into lots and a lottery held in London; no consideration was given for the rights of the Mi'kmaq.

Mi'kmaq continued to live on what became known as Lennox Island off the western coast. The Aborigines Protection Society purchased Lennox Island for the Mi'kmaq in 1870. The island became a reserve and a Band under the Indian Act, 1876. (5) Three more reserves would be added, purchased primarily by philanthropists groups: Scotchfort, Morell and Rocky Point.

The people who settled these reserves were Mi'kmaq and membership was determined according to Mi'kmaq law. There is no question that there were non-Native people who were part of these communities, but Mi'kmaq law was inclusive. …

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