Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Indigenous Americas) (15 page)

Although First Nations women have always resisted the state’s attempt to dispossess them of their rights to land and community membership, it was not until the late 1960s and early 1970s that their efforts began to gain national coverage, if not success. This period witnessed the establishment of organizations such as Indian Rights for Indian Women (incorporated in 1970) and the Native Women’s Association of Canada (incorporated in 1974), both of which would help advance the fight of Native women against the patriarchal structure of Indian legislation. In particular, these groups were instrumental in organizing enfranchised Native women around questions of gender equality and political empowerment at the local, national, and international levels.
Three foundational legal challenges emerged from this period of Indigenous women’s activism: (1)
Lavell v. Canada
in 1971; (2)
Bédard v. Isaac
in 1972; and (3)
Lovelace v. Canada
in 1981.
20

The first two legal challenges sought to force a repeal of the sexist provisions of the Indian Act by challenging in court their lack of conformity with Canada’s 1960 Bill of Rights. In
Lavell v. Canada
this involved a challenge to Section 12 (1) (b) of the Indian Act—the provision containing the infamous “marrying out” clause. In his decision, Judge Grossberg of the Ontario County Court ruled against Lavell, arguing that in
losing
the limited rights and benefits associated with Indian status Lavell had
acquired
the full and equal rights of Canadian citizenship, thus rendering her charge of discrimination obsolete. In Grossberg’s words: “In my view . . . the equality which should be sought and assured to the appellant upon her marriage is equality with all other Canadian married females. The appellant has such equality. The appellant has [therefore] not been deprived of any human rights or freedoms contemplated by the Canadian
Bill of Rights
.”
21
The second case involved Yvonne Bédard, a Mohawk woman whose band sought to evict her and children from a house bestowed to her by her mother. Bédard argued in court that the only reason the band could legally claim the right to do so was because she had married a nonstatus man and thus lost her status and the associated right to live on reserve, which she claimed contravened the gender equality provisions outlined in the Bill of Rights. In the end, both Lavell and Bédard lost their cases at the federal level but were successful at gaining appeals, and their claims were eventually heard simultaneously by the Supreme Court of Canada.
22

During the period leading up to the Supreme Court’s decision, Lavell and Bédard were subject to ruthless criticism within First Nations communities and by mainstream First Nations political organizations. As Lenape scholar Joanne Barker notes, in making their stand both women were routinely accused of “being complicit and even conspiring” with the kinds of “colonialist, assimilationist, and racist ideologies” propagated by government bureaucrats and Department of Indian Affairs and Northern Development (DIAND) administrators.
23
In particular, the two women’s appeals to baseline feminist norms regarding gender equality rights were often included as evidence of the culturally “inauthentic” character of their concerns. As Barker describes: “Demonizing an ideology of rights perceived to be based on selfish individualism and personal entitlement, and damned for being ‘women’s libbers’ out to force
bands into compliance with this ideology, the women and their concerns and experiences of discriminatory and violent sexist practices within their communities were dismissed as embodying all things not only non- but anti-Indian. Indian women’s experiences, perspectives, and political agendas for reform were perceived as not only irrelevant but dangerous to Indian sovereignty movements.”
24
The perceived culture clash between the individual rights of Native women and the collective rights of First Nations communities to recognition and self-determination led organizations like the National Indian Brotherhood (renamed the Assembly of First Nations in 1982) to intervene against Lavell and Bédard in their cases, arguing with the Attorney General of Canada that the Indian Act ought to supersede subsequent legislation, including the gender equality stipulations outlined in the Canadian Bill of Rights.
25

In March of 1973 the Supreme Court of Canada ruled against Lavell and Bédard in a 5–4 decision, and in doing so upheld the patriarchal criterion for determining Indian status under Section 12 (1) (b) of the Indian Act. Among the numerous points made in his majority decision, Justice Ritchie argued “that equality before the law under the
Bill of Rights
means equality of treatment in the enforcement and application of the laws of Canada before the enforcement authorities and the ordinary Courts of the land,” and that “
no such inequality is necessarily entailed
in the construction and application of s. 12 (1) (b).”
26
On this point, Justice Ritchie concurred with the lower court decision of Judge Grossberg, whom we recall argued that Lavell’s charge of discrimination was unsubstantiated given that in losing her Indian status she had acquired the full and equal benefits of Canadian citizenship. The second significant point made in the decision was that the Bill of Rights should not be allowed to “render inoperative” the federal government’s constitutional authority to legislate with respect to “Indian and lands reserved for Indians” as dictated by Section 91 (24) of the BNA Act of 1867.
27

Sandra Lovelace, a Maliseet woman from the reserve community of Tobique, New Brunswick, mounted the next major legal intervention, but this time at the international level. Lovelace’s efforts initially began in the 1970s as part of a community-wide struggle to address her reserve’s escalating housing and homelessness crisis.
28
At issue during this period were the ways in which the Tobique band council had interpreted Indian Act legislation to exclude community women from acquiring property on reserve.
29
Over time, however, the intolerable living conditions experienced by the women of Tobique
coalesced into a movement to change the Indian Act itself.
30
Because Lovelace had lost her status after marrying a nonstatus man, when she returned to the reserve with her children after her divorce the band was unwilling to provide her with access to housing. Women in the community began to mobilize around the Lovelace case, which in the winter of 1977 was brought to the United Nations Human Rights Committee.
31
In her complaint, Lovelace argued that Section 12 (1) (b) of the Indian Act was noncompliant with Article 27 of the International Covenant on Civil and Political Rights, which stipulates that in “those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right to live in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”
32

While the United Nations Human Rights Committee was deliberating the case, the women and Tobique and their supporters initiated another strategy to force attention to the issues faced by Native women in Canada. In July of 1979, the women organized a hundred-mile walk from Oka, Quebec, to Parliament Hill in Ottawa. The direct action attracted significant national press coverage, and upon arrival the women staged a major protest and were able to secure a meeting with the prime minister and several cabinet members. The protest resulted in the federal government committing $300,000 toward women’s reserve housing in Tobique, although some have questioned whether the money ever reached those most in need.
33
Finally, on July 30, 1981, the Committee rendered a decision in favour of Lovelace, ruling that Section 12 (1) (b) indeed violated Article 27 on the grounds that it denied Lovelace the right to live in her community of culture.
34

The timing of the United Nations’ decision in
Lovelace v. Canada
did not reflect well on the Canadian state. At the time, Canada was immersed in the process of repatriating its Constitution from England, and the proposed repatriation package was to include a Canadian Charter of Rights and Freedoms that would constitutionally entrench, among other things, gender equality rights. This eventually led the federal government to repeal the provision of the Indian Act dealing with outmarriages in 1985. This legislative initiative, known as Bill C-31, coincided with the three-year grace period within which Canada had to amend all legislation shown to contravene its newly minted charter. Importantly, the Bill C-31 amendment also states that bands have the right to create their own membership codes, although this clause requires that
any membership rules established by a First Nation may not deprive current band members or those eligible to have their band membership reinstated for reasons that occurred before new membership rules were adopted. Following the Bill C-31 amendment, thousands of enfranchised First Nations women and their children applied to have their Indian status reinstated. Since the implementation of Bill C-31, however, several First Nations communities have challenged the right of reinstated women to access to the benefits associated with band citizenship. As political scientist Joyce Green explains:

Similar to the ways in which the efforts of Lavell and Bédard were constructed as traitorous to Indigenous traditions and sovereignty struggles discussed above, here again we see how the gender equality claims and individual rights of reinstated women and children are pitted against the collective right of First Nations to determine their own membership. The result, as Green notes, has been a dismissal of Native women’s concerns as “untraditional and, by extension, as deleterious to indigenous liberation.”
36

The next major cycle of Native women’s struggles occurred during the post-1982 debates regarding the application of gender equality rights to the context of Aboriginal self-government. With the Constitution Act, 1982 came the recognition of “existing aboriginal and treaty rights” under Section 35 (1). Part 37 of the Constitution Act, 1982 further stipulated that within a year a constitutional conference would be held to define the scope of these newly recognized rights, and that Aboriginal peoples as well as representatives of the Northwest Territories and Yukon would officially join provincial leaders as
part of the negotiation process. There ended up being four of these conferences held between 1983 and 1987. The first conference, which took place in March of 1983, resulted in the first amendment to the Constitution Act, 1982. The amendment expanded the definition of “existing aboriginal and treaty rights” to include constitutional recognition to those rights and benefits secured through the negotiation of land claims agreements under Section 35 (3) and to ensure that constitutional recognition of Aboriginal rights applied equally “to male and female persons” under Section 35 (4).

The gender equality provision enshrined in the 1983 amendment did not come about easily. There were two reasons for this. First, the meeting that resulted in the amendment, as well as the three constitutional conferences that followed, formally excluded Aboriginal women’s organizations from participating at the negotiating table.
37
And second, among the four Aboriginal organizations invited to participate in the conference (the Assembly of First Nations, the Métis National Council, the Inuit Tapirisat of Canada, and the Native Council of Canada), the largest and most powerful, the Assembly of First Nations, initially refused to endorse the amendment, arguing that it would unduly infringe on the authority of First Nations to “determine membership criteria in light of their own perceptions of the traditions and needs of Indian people.” By the end of the conference’s second day, however, the AFN modified its position, likely because it did not want to be perceived as promoting another agenda with gender discriminatory implications. Subsequently, on the final day of meetings, the AFN conceded that it would accept the sexual equality clause on the condition that “the issue of citizenship be left for further discussions.”
38

The marginalization of Native women and organizations from the 1983–87 constitutional conferences on Aboriginal rights would continue well into the era of attempted mega-constitutional amendments, particularly those that ended in the failed Charlottetown Accord of 1992.
39
The proposed Charlottetown Accord emerged in the ashes of its 1987 predecessor, the Meech Lake Accord, which was a failed constitutional amendment package negotiated by the then prime minister of Canada, Brian Mulroney, and the ten provincial premiers. As I discuss in the following chapter, the Meech Lake Accord represented the federal government’s attempt to bring Quebec “back in” to the constitutional fold in the wake of the province’s refusal to recognize the legitimacy of the newly repatriated Constitution Act, 1982. First Nations leaders
overwhelmingly opposed the Meech Lake deal because it failed to recognize the political interests of First Nations. The failure to include Aboriginal perspectives on a major constitutional overhaul ultimately helped tank the deal. The Charlottetown Accord picked up where Meech Lake left off, although with an attempt to make the process more inclusive. After a series of lengthy and intense negotiations, a proposed agreement was struck on August 28, 1992, between the federal government, the provincial and territorial governments, and Aboriginal representatives on a proposed series of amendments to the Constitution Act, 1982. Among other things, the amendment sought to address issues concerning the “distinct status” of Quebec within the confederation, the right of Aboriginal peoples to self-government, and parliamentary reform. In order to curb ongoing public concerns regarding the elitist and exclusionary character of negotiating major constitutional changes, the terms of the Charlottetown Accord were put to a national referendum on October 26, 1992, where they were ultimately rejected by a majority of Canadian voters.