Sharon McIvor’s Response to Indian and Northern Affairs Canada's 2009 Proposal to Amend 1995 Indian Act

On April 6, 2009, the B.C. Court of Appeal upheld Judge Ross’s ruling that the Indian Act continues to discriminate against Aboriginal women on the basis of sex with respect to Indian status registration. However, the Court of Appeal narrowed the ruling on the remedy. Because of this, Sharon McIvor sought leave to appeal to the Supreme Court of Canada in June 2009.

In August 2009, Indian and Northern Affairs Canada issued a proposal to amend the Indian Act in light of the Court of Appeal’s ruling. If implemented, this INAC proposal would not remedy the full scope of the sex discrimination. In October 2009, Sharon McIvor issued a response to the INAC proposal, which points out its deficiencies.

A decision is expected from the Supreme Court of Canada soon.

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Background

In August 2009, Indian and Northern Affairs Canada issued a discussion paper, proposing changes to the 1985 Indian Act, to which it invited responses. This is the official response of Sharon McIvor to the federal government’s proposed amendments.

The McIvor Case

Sharon McIvor and Sharon’s son Jacob Grismer have challenged the sex based registration scheme in the 1985 Indian Act.

The McIvor case arises in the context of longstanding sex discrimination in the criteria for determining registration status under the Indian Act. Since the late 1880s, federal law has defined who can be a status Indian based on a patriarchal definition: a male Indian, the child of a male Indian, or the wife of a male Indian. Under successive versions of the Indian Act from 1906 onwards, status exclusively followed the paternal line, transmitted by male Indians as fathers and husbands, not by female Indians as mothers and wives.

Indian women were permitted to have status but for the most part could not transmit their status. There was a one-parent rule for transmitting status to children and under that rule, the transmitting parent was male.

This patriarchal scheme extended to identity upon marriage. When an Indian woman married a non-status man her status was revoked, and her children were not entitled to status. This was known as the “marrying out” rule. By contrast, when an Indian man married a non-status woman, both his wife and his children were entitled to status.

The bias in favour of male descent was also manifest in the preferential treatment of the male descendents of male Indians. Under the law in force immediately prior to April 17, 1985, the illegitimate sons of male Indians would always be Indian, whereas the illegitimate children of female Indians were subject to disqualification on the grounds of non-Indian paternity.