Jeanette Lavell is an Anishinaabe woman who married a non-Native and lost her treaty rights under a provision of the Indian Act. She and a co-defendant took their case to the Supreme Court of Canada in 1970, on whether on not the Act discriminates against women.Rudy Platiel/The Globe and Mail
Jeannette Corbiere Lavell is a strong, Anishinaabe-kwe from Wikwemikong First Nation, on Manitoulin Island. She’s spent her life fighting to end gender-based discrimination in the Indian Act, a race-based piece of legislation that has been law in Canada for the last 150 years. As if to underline her Indigeneity, she turned 84 on June 21 – National Indigenous Peoples Day.
Yet, when Ms. Lavell married a white man, David Lavell, in 1970, she automatically lost her Indian status. She was no longer an “Indian” under the eyes of the law – even though this wouldn’t have happened if it was an Indian man marrying a non-Indigenous woman.
In 1876, when the Indian Act was passed into law, an Indian woman marrying a non-Indigenous man was seen as a bizarre promotion of sorts. Doing so meant you were suddenly Canadian – no longer an “Indian.” But of course, you can’t marry out of who you are, what colour your skin is, and what you are born into.
Taking away an Indigenous woman’s status and inherent rights meant disconnecting them from their communities. Some were banished from their nations, and barred from living on reserve with their families. Lateral violence often set in, leading to discrimination by their own people.
Calls grow for Ottawa to change Indian Act
Ms. Lavell took Canada to court in 1970, fighting to have her status reinstated. But while her lawsuit initially failed, she was part of an unstoppable force of First Nations women, including Mary Two-Axe Earley, who pushed for changes to the Indian Act to protect the inherent rights of all Indigenous women. And eventually, in 1985, Canada passed Bill C-31, which brought some gender equality to the Act, and reinstated women who had been tossed out of their communities.
But when that change was made, it created a complicated new issue called the “second-generation cut-off.” Under C-31’s amendments, if two Status Indians marry and have a child, their child is automatically a Status Indian (under the law, a 6.1 Status Indian), but if a Status Indian marries a non-Status Indian, that child becomes a second class of Status Indian, known as a 6.2 Indian. Both 6.1 and 6.2 Status Indians have the exact same treaty rights, but there is one exception: if a 6.2 Indian has a child with a non-Status Indian, that child is no longer considered First Nation under the Indian Act.
The 1985 amendments to the Indian Act gave the more than 600 First Nations in Canada the ability to grant their own membership, separate from Indian Status. However, the federal government only provides its structural funding to bands according to the number of members who are Status Indians. Politely put, that is hardly an improvement.
Now, Jeanette’s daughter is carrying on the fight. Dr. Dawn Lavell Harvard, the director of Trent University’s First Peoples House of Learning, has joined with many others to abolish the second-generation cut-off. Bill S-2 (An Act to Amend the Indian Act), which was introduced to the Senate last year and is now being studied by the Standing Committee on Indigenous and Northern Affairs for a potential vote this fall, would do just that.
“There is no other nation in the world that looks at their own children, birthed from women, and says, ‘No, those aren’t our people’,” Dr. Lavell Harvard said in an interview. “It is an extinction clause. It was put in place to make sure that in one generation or two, status is gone.”
Ottawa can easily fix sex discrimination in the Indian Act – but we’re still waiting
Indigenous Services Minister Mandy Gull-Masty’s office acknowledges that Bill S-2 is a “critical step toward addressing long-standing inequities under the registration provisions of the Indian Act that have deeply affected First Nations individuals and families.” They said Bill S-2 will restore status to 3,500 people and their descendants.
But Ms. Gull-Masty has not thrown her full support behind the bill. Instead, she has accelerated a “collaborative process” that she said was co-developed with 17 representative Indigenous organizations, and which calls for more consultations.
Dr. Lavell Harvard is among those who feel the time for more study has passed. She notes that there are children of 6.2 Indians living on First Nations reserves right now, and if they aren’t legally Indians, they won’t have the ability to participate in any programming, land education or language initiatives. They’ll have to live with the stigma of not belonging – of not being seen as Indian enough. This is erasure, at a time when legal treaty rights are essential bulwarks in the face of efforts to fast-track critical mineral projects on First Nations territories.
Legally removing people from their cultural base harms them and their descendants. It cuts them out, makes them feel as though they don’t belong. And that is exactly what the Indian Act was meant to do.