aboriginal rights, aboriginal title, Canada, Indian Status, Indigenous Peoples, Non-Status Indian
The device of Indian Status and its creation: Non-Status Indians
The Canadian construct of the “Status Indian,” where in reality there is no such thing but rather human beings who are Cree, Mohawk, Haida, Miq Maq, Ojibway, Tsimpshian, and other nationals, is a sweeping action of racial discrimination undertaken to dehumanize, number, register and administrate criminalization based on race; and as such it is a crime of inflicting mental harm on the members of those groups, or nations.
The Canadian government presently recognizes the Aboriginal rights of Status Indians, or persons with Indian Status, among two other Aboriginal groups: Metis and Inuit. Aboriginal rights, which are defined by Canadian courts constituted to uphold Canadian law (not Indigenous laws), are unequal to the rights of Peoples recognized in the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; and the Declaration on the Rights of Indigenous Peoples.
The British “Indian Department” defined the rights and liabilities of “Indian” or Indigenous persons distinct from any of “Her Majesty’s other Canadian Subjects” from 1757 until 1850. After the transfer of the Indian Department to Canadian administration in 1850, and until 1957, a “person” for Canadian legal purposes was “any individual other than an Indian” (Indian Act, 1886 amendment).
The Canadian imposition of the identity of an “Indian,” to the exclusion of their national identity, and prescription of the rights of a Status Indian was a total reversal of the British policy, which had limited colonial rights against the independence and exclusionary land rights of Indian Tribes. The legislation which accumulated as the 1876 Indian Act was unilateral, without consultation or prior notice, not consensual, and forcibly applied to define the membership and organization of Peoples who had no treaty with Canada – as well as to Peoples who had treaties with the British crown which, arguably, did not provide for this reclassification.
Indian Status was then assigned selectively to divide and diminish Indigenous communities. By randomly and inconsistently awarding the Status, and therefore federal recognition of identity and associated rights and liabilities connected to Indian Status (Indian Band membership, allocation of funds to Indian Bands per capita, and right to residence on Indian Reserves, among other things), the Status and Non-Status individuals within the groups suddenly had different interests.
The state actively promoted enfranchisement by Status Indians (the relinquishment of Indian Status); mis-designated individuals to Indian Bands where they happened to be visiting when the Commissioners arrived with their numbering and registration system to record Status Indians; later refused Indian Status to people who had not been at home when the Commissioners visited; stripped Indian Status from women (and their children) if they married Non-Status men; and presently refuses to recognize the aboriginal or Indigenous rights of Non-Status members of Indigenous communities, no matter how high ranking and honoured in those communities, including refusing Indian Status to those whose ancestors were coerced off the Status Indian list in exchange for fee simple holdings of their ancestral homes or were not at home during initial registration Commissions, and refusing the right to consultation and accommodation (and consent) on their traditional Indigenous title lands, and participation in Indian Band processes.
After changes to the Indian Act in 1985 under Bill-C-31, some people regained Indian Status, and some Indian Band Councils could determine their own membership. Bands cannot confer Indian Status.
The disadvantages of Non-Status Indians continue to increase as the state seeks more and more binding extinguishment of Indigenous Peoples’ rights through its Indian Act constructs of governance, from which decisions Non-Status Indians are excluded.
The British, desperate for military assistance during the final French-British conflict in North America, the Seven Year War, created the Indian Department in 1755 in an effort to better coordinate alliances with the decisively powerful Iroquois Confederacy – as well as attempting to alleviate concerns of colonial fraud and abuses against Indigenous Peoples and their lands along the colonial frontier (to improve the prospects of Indigenous military assistance).
The Iroquois Confederacy aligned itself with the British cause upon promises of freedom, trade and respect for their independence. Britain, or the Indian Department, negotiated some treaties of neutrality with France’s Indigenous allies to win the war against France in “Canada.”
The Articles of Capitulation of Montreal, 1760, following France’s submission to British control, included in Article 40 that the Indian Allies should be maintained in their territories, according to their choice to remain there, and on no account should they be disturbed there.
A smallpox epidemic broke out in the area within a year and killed an estimated 500,000 people. It became clear to Chief Pontiac that the British would honour none of their promises, and Pontiac began a campaign of burning British forts and eradicating British settlements from his and his allies’ territories.
In October 1763 King George III of Britain issued a Royal Proclamation as an executive order to discipline the colonies – to disallow settlement in non-treaty territories and affirm the promise of Indian independence in their nations – in order to placate Pontiac and preserve the British interests in Canada which relied meaningfully on him and his cooperation. This Proclamation stemmed Pontiac’s siege, and may have contributed substantially to the advent of the American war of independence, but it was not honoured for long.
The American war certainly preoccupied the British and engaged their former disaffected Allies again as well. In 1812, Pontiac’s last battle ensured the Americans stayed south of the Great Lakes.
In 1846 the British Crown completed the Treaty of Oregon with the United States of America and the USA agreed to the 49th parallel as its northern border. This treaty did not involve the Indigenous Nations whose lands span the 49th parallel.
In 1850 the colonial governments of British North America began to keep records of Indians and Bands entitled to benefits under treaty. At that time, the only Indian-British treaties in British North America were east of the Great Lakes.
In 1857, An Act for the Gradual Civilization of the Indian Tribes was introduced. This provided the mechanism to exempt Status Indians from the new list – by enfranchisement. Males over the age of 21 were offered fifty acres if they were approved, after examination, for enfranchisement by Commissioners, who were to be: “Visiting Superintendent of each Tribe of Indians, the Missionary to such Tribe for the time being, and such other person as the Governor shall appoint from time to time for that purpose.” The commissioners were capable also of recommending the benefits of enfranchisement to men who could not read or write, and completing the paperwork and transformation on their behalf.
By contrast, Status Indian men living on reserve in British Columbia would later be allowed only five or ten acres.
The wife and children of the enfranchised man would cease to be Status Indians, and would have no right to benefits associated with membership in an Indian Band, nor recognition by Canada of their Indigenous identity. These benefits, while dramatically inferior to the benefits of membership with a free Indigenous People, included promises of provision of rations, welfare, education, Christianization, medical service, housing, infrastructure and support to develop agriculture. The fact is that the promised benefits rarely materialized (to this day housing is inadequate for the less-than-half of Status Indians who actually have structures in which to live on reserve), were administered in an abusive way (medical experimentation or total medical neglect (Culhane, 1987; Kelm, 1999)); Indian Residential Schools; abject poverty; hunger; abandonment of agricultural programs (Royal Commission on Aboriginal Peoples, 1996).
On the west side of North America, in the Colony of Vancouver Island (1849), the British Hudson’s Bay Company was endowed with political power. The Chief Factor of the HBC, after being made “Governor” Douglas, forged fourteen highly questionable agreements with fourteen Indigenous tribes. In the Colony of British Columbia (1858), instead of making treaties the Governor made Indian Reserves for Indian Bands which were identified based on the information provided by the Indigenous themselves, at least in those areas accessible to the Governor at the time – which was less than a quarter of the Indigenous land base of the Indigenous Peoples of “British Columbia.”
The Indian Reserves which were demarcated between 1858 and 1862 in the Colony of British Columbia were, according to oral history and a few surviving maps, very large – encompassing, for instance, all the villages in a region and all the riverine and hunting areas used exclusively by that People; and were characterized as settler exclusion zones accompanied by guarantees of peace and mutuality – during a time of rapid (uncontrollable) immigration and settlement during three successive gold rushes.
In 1862 a smallpox epidemic was introduced on the coast of British Columbia by colonial officials of the highest offices (Swanky, 2013). Some 90% of Indigenous people on the coast and inland died of the disease. An uncounted number of villages were wiped out and, when survivors moved together into remaining villages, they were made into a single Indian Band where before there had been dozens of communities. For example, there were historically 30 different Nuxalk villages while today there is one Indian Band; a dozen historical Lil’wat villages while today there is one Lil’wat Band; and perhaps a hundred Nuu-chah-nulth villages while today there are some fifteen Bands. The right to return to, or restore, those ancestral villages has been uniformly denied – as in the exemplary case of the Neskonlith attempt to reoccupy an ancestral village at the present day expansion site of the Resort Municipality of Sun Peaks in 2001.
In 1867 the Dominion of Canada was constituted by the British North America Act. The BNA Act included two essential components with regard to Indigenous Peoples. Section 109 of the BNA Act stated that lands and resources would belong to the provinces “in fee,” except where “Other Interests” existed. The “Other Interests” were the Indigenous interests, which were obviously extensive if not complete to the exclusion of any provincial lands in fee whatsoever (St. Catharine’s Milling, 1898; Clark, 1990, McGill Queen’s University Press). The second component which protected Indigenous Peoples from invasion by colonial governments, or provinces, was the affirmation of the Royal Proclamation of 1763 in the Act, forbidding settlement or incursion ahead of agreement by treaty.
In 1871 British Columbia joined Canada by referendum in the elected assembly, which was elected by non-Indigenous people. Still neither British Columbia nor Canada attempted to complete treaties, as was constitutionally required before settlement or possessive actions. The Terms of Union of BC’s entry into Confederation stipulated in Article 13 that responsibility for “the Indians” and lands reserved for them would lie with the federal government, and that “tracts of land of such extent as it has hitherto been the practice of the British Columbia Government to appropriate for that purpose, shall from time to time be conveyed by the Local Government to the Dominion Government in trust for the use and benefit of the Indians on application of the Dominion Government.” But British Columbia actually set about reducing the already demarcated Indian Reserves to a fraction of the size.
The new creation in British Columbia of “Indian Bands” on these Indian Reserves was not a reflection of Indigenous governance and organization and often created a group where before there hadn’t been one – often planting or transplanting an Indian Reserve just outside a colonial resettlement of a traditional, developed Indigenous village which was preferred by the settlers for its development, proximity to water, geographical convenience, etcetera – and the new Band lists were populated according to the registration as Status Indians of whomever was present at the time of the Commissioner’s visit. In many cases the Bands were actual Indigenous villages populated by an existing community, and in many cases those Reserves and Bands were later forcibly relocated to make way for colonial settlement preference. In many cases, after 1871, Indian Reserves were established proximal to colonial industrial hubs, ensuring a captive population that worked for lower wages than white, Japanese or South Asian settlers.
During the massive reduction of the Indian Reserves demarcated by Governor James Douglas, and the creation of new reserves among Indigenous Peoples who had hitherto not been visited by Commissioners, and the relocation of Indian Reserves which had become inconvenient to settlement, a great number of Indigenous people found themselves living on lands they had owned and developed for generations – but outside of Indian Reserves. At this time many Indigenous individuals refused to move to Indian Reserves, then being excluded from the list of Status Indians, and often losing their lands to pre-emption by settlers anyway. Occasionally these people accepted the colonial registration of their lands in fee simple title, sometimes as pre-emptions, in exchange for relinquishing their Indian Status.
In 1876, the Dominion of Canada compiled its statutes regarding Indians (the Indigenous) into a single piece of legislation: the Indian Act. British Columbia had entered confederation in 1871 with no land treaties at all, only fourteen promises to 14 Indigenous communities on Vancouver Island that they could “fish and hunt as formerly,” as of 1854. The Indian Act was unquestionably used to obscure British Columbia’s outstanding failures to achieve legitimacy and responsible government under the Canadian Constitution, or BNA Act, such as by fulfilling the obligation to make treaty before proceeding on lands otherwise reserved to the Indians. The strategic and economic importance of British Columbia to Canada cannot be overstated – then or now – and it seems apparent that Canada wished to facilitate British Columbia’s joining Confederation by engineering an alternative to treaty making. The British government had refused funds to purchase lands, as requested by Governor Douglas. The Indian Act also was applied to Indigenous Peoples with treaties with the British crown, and used by the Canadian government to obscure its treaty obligations as the successor state to those treaties.
From 1851 to 1951, individual Indian agents made lists of members who belonged to each Band.
In 1951, the current Indian Register was established by amendment of the Indian Act, and the many Band lists were combined into one.
This current Indian Register was established two years after Status Indians were entitled to vote in British Columbia, where Status Indians still formed a near majority of the population in many electoral districts. It was nine years before Status Indians were allowed to vote in Canada’s federal elections, and four years after Status Indians were unilaterally designated Canadian citizens following their extensive and vital participation in World War II.
By the early 20th century Indigenous family heads and individuals generally were well aware of the problems that came with Indian Status: confinement to an Indian Reserve; constant surveillance by Game Wardens and Indian Agents and Christian Missionary Priests; and the enforced Indian Residential School for their children. In British Columbia, if not elsewhere in Canada, a great number of Indigenous families simply evaded the Indian Agency altogether by not registering as Status Indians – in the Interior of British Columbia, where there were no treaty rights, these families simply lived away from the reserve and off “the beaten track” and were never bothered by Agents who were often unmotivated and also not fluent in the geography. Some Indian families crossed into the United States to live their lives and raise their families free of the imposition of Indian Status, sometimes returning once their children were over school age.
Importantly, these people did not take the added step of enfranchisement. They simply refused to comply with the state and went and lived their own way, keeping their children home and often maintaining their family connections and roles with their People. And sometimes not maintaining those connections, as the decision to live on reserve or not was a matter of contention which divided families.
Prior to 1955, Status Indians lost their Indian Status in a number of ways. A few chose enfranchisement – voluntarily giving up status, usually for a minimal cash payment; by obtaining a college degree; or by becoming an ordained minister.
Since 1956 the Canadian federal government has issued an identity document to individuals who have Indian Status under the Indian Act. This document has been used by Status Indians to cross the border between Canada and the United States under the provisions of the Jay Treaty (1794), to purchase goods without paying taxes, to receive welfare payments from Indian Bands, to apply for on-reserve housing, to vote in Band elections and referendums, to receive subsidies for education, and to take advantage of affirmative action employment and training schemes. Obviously Non-Status Indians could not avail themselves of these opportunities.
In 1982 the Canadian Constitution was enacted. For the first time “Aboriginal and treaty rights” – as opposed to the restriction on colonial rights by British orders – were guaranteed constitutionally by Canada to Status Indians, Metis and Innu people.
In 1985, the Indian Act was amended to restore Indian Status to individuals and their children who had lost it: to women who had married a man who was not a Status Indian; enfranchisement; having a mother and paternal grandmother who did not have status before marriage; being born out of wedlock of a mother with Indian Status and a father without it. Over 100,000 people who had lost their Indian Status in these ways were added to the Register. This was the result of litigation by Sharon McIvor, a woman who had not been able to get Indian Status because of her matrilineal heritage.
Canada recognizes the Aboriginal rights of Status Indians, Metis and Inuit individuals, and occasionally recognizes certain rights to a collective, usually based on the construct of the Indian Band, such as aboriginal rights or the right to be consulted about developments and accommodated for infringements of interests related to aboriginal rights.
The list of Status Indians is maintained by the Department of Aboriginal Affairs and Northern Development Canada. Sole authority for determining who will be registered is vested in the Canadian post of Registrar.
The government of Canada does not recognize any aboriginal rights of Non-Status Indians.
III. Challenges created by Non-Status
Non-Status Indians cannot vote in the elections and referendums held by the Indian Band, or First Nation, of their People. Canada has a forked policy of imposing Indian Act Band Councils on Indian Reserves and delegating to that Council the administration of the federal obligations concerning distribution of welfare, management of infrastructure and so on, on reserve land only.
From time to time the state then proposes to the Band Council developments on lands which are outside the reserves and within the Indigenous title areas of those peoples, and holds the decisions or referendums conducted by the Council as binding, while the Indian Act Band governance is not the proper authority concerning Indigenous Title lands.
Band Councils have been constituted and funded by Canada to administer on reserve activities, but this is an unconstitutional and illegal imposition, seriously undermining the International Bill of Rights Article 1 right of peoples to self-determination. Canada is not capable of unilaterally constituting an authentic Indigenous governance structure which has decision making powers over Indigenous title lands and which concern Indigenous Peoples’ rights. Still, when expedient for Canadian socioeconomic mores, Canada forces and funds decision making processes and then recognizes the resulting decisions over Indigenous titles made by Band Councils. Canada does not recognize decisions over Indigenous lands made freely by Band Councils or traditional governance mechanisms when those decisions are not conducive to industrial development, unless those decisions are supported by a Supreme Court ruling – and sometimes not even then.
While Non-Status Indians may be recognized as members by their own people through their traditional systems, they are excluded from participation in the Indian Band decisions which Canada constructs to create the appearance of legitimate disposal of traditional territories and social development for aboriginal peoples.
Until the last quarter of the 20th century, people with Indian Status could not own land. To own land a man would have to be enfranchised – give up Indian Status. Owning land – such that eviction was made unlikely – was an attraction. There are hundreds of cases of lands along the lower Fraser River in British Columbia, and in areas throughout the province – particularly those proximal to white settlements, being developed by Status and Non-Status Indians and then pre-empted by settlers without compensation or any type of recognition.
The certificates of possession which were and are used to document family land holdings on reserve cannot be held by Non-Status Indians. This has the effect of displacing members of the group.
Had Indigenous individuals in British Columbia, and elsewhere in Canada, been able to vote in the early 20th century, and if they had organized to take advantage of that, there is no chance that any of their candidates would have lost – as the overwhelming majority of voters would have been Indigenous. Had Indigenous people voted in the referendum concerning joining the Dominion of Canada, the present legal status of British Columbia would be very different.
But Status Indians were not allowed to vote until 1949 in British Columbia, and not until 1960 in federal elections.
At various times Indigenous communities have had the opportunity to control provincial and federal ridings and elect their own candidate, owing to the majority Indigenous demographic of the electoral area. In 1949 British Columbia, Indigenous individuals registered to vote and elected Frank Calder, Nisga’a, to office in the Skeena Bulkley riding. In 1969 in British Columbia, Indigenous individuals voted in the federal election and put Leonard Marchand in parliament for the Kamloops area.
The only time an Indigenous issue has ever been a stake in a provincial British Columbia election was in 2001. The provincial government had just completed a Final Agreement with the Nisga’a people under Canada’s Comprehensive Claims Policy. The sitting New Democratic Party spent $5 million on advertising the Nisga’a Final Agreement as an achievement of the government. Even though this Agreement had the effect of extinguishing 92% of Nisga’a land title and re-constituting the Nisga’a government within Canadian parameters, the BC electorate was opposed to it on the basis of some financial compensation and the advent of some municipal-type powers which would be, without precedent, enjoyed by the Nisga’a. A new party was voted into office in BC in 2001.
Dispossession and Relocation; Consultation and Accommodation
The award of Indian Status and subsequent release of that Status in various circumstances was a tool of dispossession, in that enfranchised, previously Status Indian men, would be recognized as owners of their Indian title lands as fee-simple land owners. Their lands, and themselves, were then seen to be part of Canada.
In all cases in British Columbia, the Indigenous traditional family head systems have resisted, and, in some cases, withstood colonization, and in many cases individuals who do not have Indian Status are recognized by their own people, and so is their ownership of their ancestral lands. In many cases Non-Status individuals continue to hold and actively uphold hereditary and traditional social and political titles and the lands those titles come from.
However, Status Indians living on reserve have lately had many opportunities to lay different measures of claim to lands belonging to Non-Status Indians, in the absence of the Non-Status persons who cannot live on reserve or vote in Band Council elections and referendums, and who do not have the right to be consulted about developments on their lands, as Status Indians, or Aboriginal people, or Indigenous people, do.
While some Indigenous individuals were able to maintain their hereditary titles while living off-reserve, they did not have the federally recognized aboriginal right to hunt and fish. This makes participation in the feast hall and potlatch systems difficult, as a key part of that participation is providing the feast. Provision of food to needy families, elders or single parents is often a necessary aspect of holding, or keeping, social and political titles. Holding the office (title) of a county or region of the tribe or nation involves being on that land and maintaining it, essentially maintaining the environment, which entails hunting and fishing during those activities.
The dispossession of the Non-Status individuals has been a cumulative blow to the civil, political, economic, social and cultural feasibility of the peoples, even while their over-arching right to self-determination and to dispose of their natural wealth has been violently suppressed.
Education and Health Care
Non-Status Indians cannot use the medical travel subsidies, dental services, educational grants and awards, or medical programmes available to Status Indians. These subsidies are available to Status Indians in tacit recognition of treaty rights, and, in non-treaty areas, in lieu of treaties.
While Barbara Cunningham in Alberta was resident on the Peavine Metis Settlement, she applied for Indian Status because she needed the medical support available to Status Indians. After being registered as a Status Indian, she discovered she was no longer allowed to live at the Peavine Settlement. In the Supreme Court of Canada, Alberta v. Cunningham, 2011, her case for return to Peavine was rejected on the grounds that the Alberta Metis Settlement Act was an ameliorative program aimed at assisting disadvantaged groups, and now that Cunningham had Indian Status she could no longer be considered part of the disadvantaged group which that ameliorative program was aimed at.
The Indian Act is the federal legislative source of a gross number of human rights violations. Since 1876 this Act has legislated the removal of children from their own People’s homeland to Indian Residential schools; confinement of Status Indians to Indian Reserves; arbitrary relocation of Indian Reserves; the criminalization of up to 200 acts of Indigenous civil, political, economic, social and cultural life; failure to provide medical services; and has effected general racial prejudice within Canadian society.
Indian Status is not an enviable designation, and yet the withholding of that Status to Indigenous individuals who qualify for it – who qualify to live on the reserve of their people and vote in matters concerning them, has been a further source of violations to the self-determination of the Peoples, or at least the physical ability to take action to regain that self-determination as a group. Non-Status Indians bring no financial allocation per-person to the Indian Band, and therefore no resources to build housing, infrastructure, educational or medical facilities. On the other hand, the government awards Indian Status and membership in an Indian Band to individuals without any notice or discussion with the Band in question.
The Indian Act has been used to divide the groups (by making some Status Indians and some not) and then force relocation of Non-Status members of the groups owing to lack of reserve lands and lack of on-reserve housing and lack of service to Non-Status Indians on-reserve; to remove children from the groups; to impose conditions of life which have demonstrably effected the physical destruction of the groups, in part; to legislate a category of non-persons, i.e. Status Indians, which has incited racial prejudice resulting in a centuries-long epidemic of Canadian violence against Indigenous Peoples including killing members of the Indigenous groups; and, having made Status Indians not persons but wards of the state, members of the groups were sterilized in medical institutions, particularly children who were hospitalized during their detention at Indian Residential Schools.
So many Indigenous individuals were denied Indian Status that in 1969 the British Columbia Association of Non-Status Indians (BCANSI) was formed. This organization had two parallel purposes: to advocate for the health, education and housing of Non-Status Indians who, naturally, lived off-reserve; and to pursue the designation of Status Indian for the people it represented.
BCANSI became the United Native Nations, which is active today. This organization advocates for Non-Status Indians, and for Status Indians who live off-reserve and are prohibited by lack of proximity to their Indian Band from availing themselves of the various health, housing and education subsidies they are allowed under federal law through their Indian Band. Those subsidies are inadequate to serve the Status Indian population by at least 50%, so there is a general need aside from the Status / Non-Status eligibility problem.
By 2014, when the Daniels v. Canada decision against a federal fiduciary obligation to Non-Status Indians was made, on the basis of the “unrecognizable” character of Non-Status Indian people, organizations with memberships of Non-Status Indians had been around for half a century. The Supreme Court of Canada decided that those individuals who had a right to Indian Status should simply apply for it and have their cases decided on individual bases. The Non-Status Indian organizations continue to exist precisely because there is a large block of people who cannot win those individual cases, in spite of their eligibility and the support of their Indigenous People of origin, because of the lack of accommodation in the criteria for Indian Status eligibility in the Canadian process.
The Congress of Aboriginal Peoples (CAP) is one of five Aboriginal Representative Organizations recognized by the Government of Canada. Founded in 1971 as the Native Council of Canada (NCC), the organization was originally established to represent the interests of Métis and Non-Status Indians. Reorganized and renamed in 1993, CAP has extended its constituency to include all off-reserve Status Indians and Non-Status Indians, Métis and Southern Inuit Aboriginal Peoples, and serves as the national voice for its provincial and territorial affiliate organizations. CAP also holds consultative status with the United Nations Economic and Social Council (ECOSOC), which facilitates its participation on international issues of importance to Indigenous Peoples.
The device of Indian Status enabled state control over the Indigenous identity. A “Status Indian” in Canada has constitutionally recognized rights, is owed federal fiduciary obligations. The imposition of the state-organized and geographically static “Indian Band” with an “Indian Reserve” – to the exclusion of recognition of Indigenous Peoples as Peoples who form their own political status and determine their own membership – allowed the state to reorganize and redefine membership in the groups according to Indian Status. It thereby enabled the reduction of the registered population of the groups by refusing Status to eligible individuals on mean and arbitrary bases.
The militaristic enforcement of restrictions on location and federal subsidy of individuals with Indian Status physically divided Indigenous Peoples by refusing inclusion of Non-Status individuals within the geographic and economic corrals of Indian Bands.
The refusal of Non-Status Indians’ participation in the political life of the groups’ only state-recognized decision making mechanism, the Indian Band, ensured an incomplete and unbalanced representation of the interests of the groups – at least the limited, on reserve interests.
The refusal of economic subsidy to Non-Status members of the group, combined with the total impoverishment of Status Indians on reserve, created a situation where families were forced to abandon the care of their Non-Status members in a protracted time of desperate need. Non-Status Indians had very few resources in the colonial world, where racism against them is rampant.
The denial of Non-Status Indians’ state-recognized rights, within the illegal occupation and police administration of the Indigenous Peoples’ nations, including the Aboriginal rights to hunt and fish, created a social and cultural gulf between individuals of the same group.
The particular vulnerability of women to losing Indian Status through marriage created sexist discrimination within the groups.
The forcible imposition of the Indian Act criminalized most expressions of Indigenous civil, political, social, economic and cultural life since its inception, with greater and less severity at different times since 1876. The rights of Status Indians were grossly impoverished in comparison to Canadian citizens.
The Indian Act set out an undesirable, punitive regime over Status Indians and rewarded relinquishment of that status, at least in terms of providing an escape from the Indian Act and recognizing basic human rights of a person. This created a very great, but unknown, number of today’s Non-Status Indians.
The ultimatum provided by the choice to relinquish Indian Status was cruel and unusual, asking individuals to give up identity, Aboriginal rights, tax-free status, increased educational subsidies, the right to live on reserve or “at home,” and medical and dental subsidies in exchange for freedom of movement, the right to vote in provincial and federal elections and the right to own land.
The Indian Act is unconstitutional. It is also internationally repugnant, violating every human rights treaty to which Canada is a party.
The response of the Indigenous Peoples to identify those of their members who had been deprived federal recognition as “Non-Status Indian” was a measure that correctly relegated the “Status Indian” designation to a corner of the collective mind which recognized Canadian interference in the formation of Indigenous identity, and countered it by formally recognizing that an ‘Indian” was a person over whom the state did not have the definitive hold. A person without “Status” (i.e. government recognition) may still be an “Indian” (i.e. a member of the group). This is an expression of self-determination which, even within the imposed realm of the Indian Act, demonstrates an exercise in the right to identity and nationality and a rejection of the state practice of defining membership.
The invention of the Indian Act and its application of Indian Status to exclude Indigenous persons from protection under the Canadian Charter of Rights and Freedoms was a crime that was not remedied until 2010. The application of this legislation to independent Indigenous Peoples with whom neither the British crown nor the crown in right of Canada have formal, explicit treaties, and to Peoples with treaties that provide otherwise, is an invasion and forms the basis of an ongoing illegal occupation.
Indigenous individuals have long since self-identified as “Indians,” a testament to the ruthless and complete assault on their own nationalities. The theft of those national identities, by punishment, torture, extravagant and humiliating denial, and the provision for the occasional entitlement or most basic exercise of survival for sufferance of the imposed identity, such as hunting or fishing rights, must be considered a crime against humanity. Indigenous nations, however long they have been denied, have by no means been destroyed and the rights of those Peoples to remedy and repair are incontestable.
The state-serving unilateral decision to withhold or award Indian Status has allowed Canada to meaningfully reduce the number of people to whom it recognizes fiduciary obligations and constitutional rights, as well as to meaningfully and forcibly dislocate, dispossess and alienate members of the groups. The harms caused by that practice are by now largely historical, meaning that the harmful results have been entrenched over generations and the intended damage caused by division and denial of identity is done (IACHR, Missing and Murdered Indigenous Women in British Columbia, Canada, 2015) – even while Non-Status individuals today seek the right to belong with their people under whatever inhuman regime overbears that right.
Indigenous Peoples deny Canada’s right to define their membership or their rights (IACHR #12-929, Edmonds v. Canada; Myers, Network for Native Futures, 2015).
The best way to restore the right to identity and the right to nationality of Status and Non-Status Indians is to effect the internationally overseen decolonization of Indigenous Peoples throughout Canada (Martinez, 1999; deZayas 2013); to protect all the rights of Peoples – firstly the rights to self-determination, to freely dispose of natural wealth and to in no case be deprived of their own means of subsistence (114th CCPR, the Committee’s Concluding Observations for Canada); and to hear the complaints of the Indigenous Peoples against Canada in a binding, third party independent and impartial tribunal.