Doris Edwards has always considered herself aboriginal. That’s because she is aboriginal, by every definition. Unlike some Canadians who make dubious claims to indigenous roots and identity – novelist Joseph Boyden is among the recent, most notorious examples – Edwards was born to aboriginal parents. And the 67-year-old remains a member of the Saddle Lake Cree Nation (SLCN), in Alberta.
But she doesn’t feel welcome there any longer. In 2014, she says she was forced out of a band-owned house in which she and other family members had lived for decades. After her older brother Jonas died, the house was “reassigned” to another brother, Raymond, and a younger sister, Wendy, on order of the band’s chief and council. Wendy was to provide care for Raymond, who suffered from a terminal disease.
With no place else to go, Edwards, her older sister Rose Jones, and Jones’s mentally disabled son Bobby Half, moved into a local motel off the reserve, until their savings were depleted. The three eventually wound up in a derelict, heatless trailer on a neighbouring reserve. Jones caught pneumonia in the tumble-down dwelling and died last year.
Edwards claims the callous treatment is the result of gender-based discrimination on the SLCN. She and her sister had each married non-indigenous white men, many years ago.
“The band [leadership] told us to leave,” Edwards says from Vancouver, Washington, where she has been living with her daughter and son-in-law in recent months. “We tried to stay, but there were threats, and someone broke down a door. We got a temporary restraining order for three months but eventually, a judge ordered us to leave, and the RCMP came.”
When Raymond died, the SLCN allowed Wendy to move into the house, with her non-Indigenous partner. As the pair lived common-law, Wendy was not considered “married,” and she was left alone. Edwards, on the other hand, was scorned.
How is this possible? Wasn’t Canada’s Indian Act amended in 1985 to eliminate gender-based discrimination on reserves? Bill C-31 was supposed to make the Act consistent with the Charter of Rights and Freedoms, which says that in Canada, “every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability”.
Once Bill C-31 became law, it returned aboriginal status – and the rights and benefits meant to go with it – to indigenous women like Edwards who had married non-aboriginal men. But C-31 hasn’t been evenly applied across Canada. Bands routinely ignore Charter provisions and deny status Indians such as Edwards full services and benefits, including housing, on their reserves. Why? Because they can.
Canadian courts and the Department of Indigenous and Northern Affairs leave issues of membership, services and residency to hundreds of First Nation communities who have adopted their own membership rules, or “codes.” In effect, Bands determine First Nations membership – and they can take it away. And some are using that power to openly discriminate on the basis of race and gender.
This leaves the broader issue of aboriginal identity open to subjective, case by case interpretation, resulting in ugly local disputes and hardships and curiously arbitrary membership rulings, not to mention quasi-legal challenges filed in places of last resort, such as human rights tribunals.
Consider the Fort William First Nation, next to Thunder Bay, Ontario. Earlier this year, the band decided to accept as full members four people who do not possess Indian status. Among the four is a non-indigenous university professor who lives in Saskatchewan. When he was a baby, Damien Lee’s mother married a Fort Williams band member. Lee was adopted into the First Nation “through traditional customs” and was raised on the reserve.
“[Fort William is] my home,” Lee told the Globe and Mail in March. “Up until earlier this month I have been claimed by the community socially and in a de facto sense, but I never have been able to participate in voting, for example…Now I get to participate in the things that my brothers and sisters get to participate in.”
The same article touched on an equally curious yet contrasting situation that’s been playing out on a reserve near Hope, British Columbia. For reasons all its own, the tiny Peters First Nation (PFN) decided to limit its membership – currently just over 40 – to people of the administration’s own choosing, leaving some blood relations out in the cold.
Three children of PFN members claim they were denied membership despite their indigenous status, adding they were barred from voting in recent band elections. “All of my descendants’ rights are being extinguished as I am forced to watch,” one of their relatives told the Aboriginal Peoples Television Network in March. Other relatives claim the band’s membership count is deliberately being kept low to protect the band chief and councillors from losing their elected positions and the powers that go with them.
Further up the B.C. coast, the adopted son of a Heiltsuk First Nation member was told he could no longer compete in a regional “All Native Basketball Tournament” because he is not of indigenous descent. Josiah Wilson was born in Haiti and identifies himself as “Haitian, Canadian, First Nations, francophone and black.”
He filed a complaint with the B.C. Human Rights Tribunal, claiming tournament organizers had discriminated against him. A hearing was scheduled for earlier this year, but the matter was settled when organizers backed away from their exclusionary stance and issued a formal apology to the young man. “We acknowledge and affirm that Josiah is native under Heiltsuk and Canadian Law,” the apology reads.
Does the law really say that? Maybe, but individual First Nation membership codes can still supersede what has been written and passed in Canada’s parliament with respect to band membership rights.
In Quebec, five Mohawks from the Khanawake First Nation (KFN) say they have been unjustly denied membership by the band’s elected leaders because they live with non-aboriginal spouses or have bi-racial parents, thus putting them in violation of the band’s own controversial membership code.
“I feel alienated…when I go out in the community I feel like I have to put my head down,” one of the complainants, a woman married to a non-indigenous man, told Postmedia News in December. “I just want things to be okay and to be left alone and to live my life…for my husband and I to be with our daughter and grow old.”
There’s been no policy reversal or apology from that band. Because Canadian courts consistently defer to individual First Nations and their own peculiar membership priorities, the five Khanawake Mohawks are now seeking recourse through the Canadian Human Rights Commission and its tribunal.
Doris Edwards tried and failed to find redress through the courts. She sought an order that would have allowed her sister, her nephew and herself to remain in House 402, the family home on the SLCN in Alberta. A Federal Court of Canada judge ordered the parties to come up with a mutually acceptable solution through mediation, but those efforts failed.
A second Federal Court judge, James O’Reilly, weighed in on the matter in late 2015; he decided he lacked the authority to make an order that would allow Edwards, her sister and her nephew to move back into their old house. “I can only order the SLCN Chief and Council to reconsider its decision and, in doing so, to honour the duty of fairness,” O’Reilly’s decision reads.
Edwards claims the band has ignored that order. She says her only path to redress is the human rights route; she has filed a complaint with the CHRC, whose investigators are now examining her claims.
In its response to her complaint, the SLCN denies having discriminated against Edwards on the basis of her previous marriage and her gender and calls the disagreement over House 402 “an interfamily dispute…It is the SLCN’s position that neither the [CHRC] nor the Chief and Council become involved in what is clearly a family dispute.”
Homes are in short supply on their reserve, the SLCN says, hence the squabble over an old wooden house.
Edwards doesn’t buy it. She insists she’s viewed by the band’s leadership as an outsider, that she has been considered as such ever since she married Bill Edwards, a white man, back in the 1960s. The couple have since divorced, but no matter.
“They still call me a C-31 Indian,” Edwards says. That’s the identity her own people have assigned to her. It should affirm all of her aboriginal rights. In practice, she insists, it does not. The band has effectively taken the Indian status out of the woman, leaving her just another Canadian.
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