Persons Day, October 18th, is a day when many women’s groups celebrate the efforts of The Famous Five for their role in gaining women’s rights in Canada. In 1927, Emily Murphy, Nellie McClung, Irene Parlby, Louise McKinney, and Henrietta Muir Edwards challenged section 24 of the British North American (BNA) Act’s definition of person. They wanted it expanded to include female persons. The Supreme Court of Canada (SCC) ruled that the definition of person in the BNA did not include women. The Famous Five then took their case to the Judicial Committee of the Privy Council of Great Britain, Canada’s highest court of appeal, where on October 18, 1929, the Council announced “the exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word ‘person’ should include females, the obvious answer is, why should it not?” As a result of their efforts they won the right for women to serve in the Senate and they also helped pave the way for women to participate equally in all other aspects of life in Canada. In honour of the Persons Case the annual Governor General’s Awards were created in 1979 whereby on October 18th five deserving women are recognized for their work.
While many Canadians are aware of the Famous Five and their efforts, many are not aware of the long-time efforts of the Indigenous Famous Five: Mary Two-Axe Early, Jeannette Corbiere Lavell, Yvonne Bedard, Sandra Lovelace, and Sharon Donna McIvor (see poster above). The Indigenous Famous Five, as I have opted to call them, have been working for decades to eliminate the sex discrimination that Indigenous women and First Nations have had to, and continue to have to, endure at the hands of Canada’s racist and sexist oppressive colonial laws that determine who is, and who is not, an Indian as defined by the Indian Act and as such who is, or better said who is not, entitled to their treaty rights as established in 1764 during the Treaty at Niagara where the 1763 Royal Proclamation was ratified.
It was through the process of Indian status registration that Indigenous people became, and for that matter continue to be, entitled to their treaty rights. These treaty rights which include an equitable right to land and resources were negotiated in exchange for allowing settlers to reside in and benefit from our landscapes. The initial criteria of Indian followed an Indigenous model, meaning it was based on a broad definition of Indigenous citizenship and thus included all people who were adopted and who resided with the Indians. Despite this inclusivity, eventually Canada began limiting the number of people entitled to Indian status registration through a process called enfranchisement. Through this process of enfranchising Indians Canada was eliminating the Indian problem and thus their treaty responsibilities.
When it was determined that the process of enfranchising Indians was proceeding at too slow a pace, Indian women and their children became the targets of Canada’s racist, and clearly now sexist, regime. Through a series of legislative Acts dating back to the 1857 Gradual Civilization Act, Indian women and their children were enfranchised when their husband or father was enfranchised. Next, it was through the 1869 Gradual Enfranchisement Act where Indian women, along with their children, who married non-Indian men, were enfranchised where the right to live in one’s community, the right to inherit property, and for that matter the right to be buried in the community cemetery was lost. The process of eliminating Indians as defined by Canada was eventually codified in section 12(1)(b) of the 1951 Indian Act.
It would be an understatement to say Indigenous women have worked tirelessly to eliminate section 12(1)(b) and its intergenerational effects. In 1966, Mary Two-Axe Early began to speak out publicly, and in 1971, Jeannette Corbiere-Lavell took the matter of section 12(1)(b) to court arguing it violated the Canadian Bill of Rights. Yvonne Bedard joined Corbiere-Lavell’s effort, where in 1973 both cases were heard together at the SCC. Relying on a racist and sexist line of reasoning the court compared Indian women to settler Canadian women ruling that they had equality and as such there was no sex discrimination. Regardless of this set-back, it was in 1981 when now Senator Sandra Lovelace appealed to the United Nations Human Rights Committee (UNHRC) but because her marriage and loss of Indian status registration occurred prior to the International Covenant on Civil and Political Rights the Committee declined to rule on the matter of sex discrimination.
When Canada’s constitution was patriated in 1982, it included the Charter of Rights and Freedoms where section 15 guarantees the right to live free from sex discrimination. In 1985, the Indian Act was amended through Bill C-31, purportedly to bring it in line with the Charter, whereby many Indigenous women and their descendants, once involuntarily enfranchised for marrying non-Indian men, were re-instated as status Indians, and their children were registered for the first time. With registration, they also became entitled to their treaty rights. Despite this so-called legal remedy offered by Canada, through the creation of what is commonly referred to as the second-generation cut-off rule, the grandchildren of the Indian women once enfranchised for marrying out continued to be denied status registration and consequently their treaty rights.
Because Sharon Donna McIvor’s status entitlement moved through her mother line rather than her father line, she was prevented from passing on status registration and treaty rights to her son because of the second-generation cut-off rule. Sharon took this matter to court arguing this violated section 15 of the Charter where once again the so-called legal remedy offered by Canada failed to resolve all of the remaining sex discrimination. For example, Canada does not recognize common law marriages, and further there is a cut-off date imposed as defined by an old colonial and sexist law section of the Indian Act known as the double-mother clause.
Not only did the legal remedies fail to resolve the sex discrimination, they also created new forms of sex discrimination. There is the matter of unknown and unstated paternity. This is where my work comes in to the discussion. Prior to the legislative amendment in 1985, children of Indian women, and whose father’s signature was lacking on the child’s birth certificate, were that of the mother, meaning a registered status Indian, and therefore entitled to their treaty rights. In 1985 Canada removed this protective provision where, and through an internal policy, now the Registrar assumes all situations where a father’s signature is lacking is a non-Indian person as defined by the Indian Act. As a result, through this policy assumption many Indigenous children are losing their right to Indian status registration and their treaty rights. Disturbingly this policy applies in situations of sexual violence such as incest, rape, sexual slavery, and prostitution. I personally have a section 15 Charter challenge regarding this very matter and Aboriginal Legal Services of Toronto are my legal representative against Canada. So far, I have been working on this challenge for 28 years.
In 1979, Mary Two-Axe Early received the Persons Day Award; in 1992 Sandra Lovelace did; in 2009 Jeannette Corbiere-Lavell did; and in 2011 Sharon Donna McIvor also received the Person day Award. To this date, Yvonne Bedard has not as yet been recognized.
To this end, despite the efforts of the Indigenous Famous Five – Mary Two-Axe Early, Jeannette Corbiere-Lavell, Yvonne Bedard, Sandra Lovelace, and more recently Sharon Donna McIvor — the 156 year (as of 2013) history of blatant sex discrimination in the Indian Act continues. This is in part why I paint my face black, a traditional Anishinaabe method of mourning loss. Indeed I am both exhausted and saddened by Canada’s treatment of Indigenous women and children, and the denied right to our land and resources that will assure our sovereignty.
Dr. Lynn Gehl is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. She has a section 15 Charter challenge regarding the continued sex discrimination in The Indian Act, is an outspoken critic of the Ontario Algonquin land claims and self-government process, and recently published a book titled Anishinaabeg Stories: Featuring Petroglyphs, Petrographs, and Wampum Belts. You can reach her at [email protected] and see more of her work at www.lynngehl.com