Ottawa plans to restore First Nation status for families that lost it to obtain citizenship
Constitutional challenge on hold as plaintiffs work with federal government on new legislation
The federal government is proposing legislation to restore status to thousands of First Nations families that lost it to obtain Canadian citizenship and protect their children from residential schools.
The move comes after 16 plaintiffs filed a constitutional challenge last year in the Supreme Court of British Columbia to end discrimination based on gender and the process of "enfranchisement" — of giving up First Nation status under the Indian Act.
The plaintiffs made a deal with Ottawa to put their litigation on hold while they provide input on the proposed legislation.
"For so many of my almost 70 years, I have not ever thought that this kind of change could come about, could be made to happen without lots of resistance and pushback from Canada," plaintiff Kathryn Fournier said.
"I'm more honoured than I can say to be part of what might be a historical change in the Indian Act."
WATCH | Regaining status
Indigenous Services Minister Patty Hajdu promised to introduce legislation in the House of Commons before the summer to make the necessary changes.
"We would be looking at legislation that would very quickly allow for people to apply and have a very expedited approach to regaining that status," Hajdu said.
Plaintiffs argue families coerced into enfranchisement
Enfranchisement was a process through which First Nations people renounced their Indian status and treaty rights in exchange for Canadian citizenship and the right to vote and own property, and to keep their children out of residential schools.
The process was considered voluntary by the federal government — but the plaintiffs argue their families were coerced into enfranchisement.
Fournier's grandfather Maurice Sanderson, a residential school survivor from Pinaymootang First Nation in Manitoba, wasn't able to vote or own property unless he was enfranchised. He applied in 1922.
"It's a strange and difficult choice that he had to make," Fournier said.
The enfranchisement policy was adopted in the Province of Canada in 1857 under the Gradual Civilization Act and continued after Confederation under the Indian Act of 1876.
Enfranchisement remained in place until amendments were made to the Indian Act in 1985 to bring it in line with the Canadian Charter of Rights and Freedoms.
This change allowed Fournier and her mother to regain their status — but did not extend status to Fournier's three children because of registration provisions which are still in place today.
WATCH | The case explained
Fournier said she wants to see the changes through for her mother Edith, who was a plaintiff in the case. She died late last year at the age of 96.
"She would be extremely pleased to know now how well this is developed and how far we've come. For my children to say, 'Actually, we're proud of this. This is an important part of who we are,'" Fournier said.
Ending gender-based discrimination
The Indian Act contains different levels of status. Since the parents of Fournier's mother were enfranchised, she could not pass her status onto her children.
Under the old Indian Act, when a status Indian woman married, she lost the right to decide what happened to her status.
If she married a non-status man, she automatically lost her status. If she married a status Indian man and her husband was enfranchised, she and any unmarried children were automatically stripped of their Indian status as well.
Through a series of legislative changes, Ottawa gradually allowed women and their descendants to regain status lost by marriage. But the descendants of women who lost status because their status Indian husbands were enfranchised are still barred from reclaiming status.
Even though Nadia Salmaniw has Haida citizenship under the laws of the Haida Nation and is a citizen of the Central Council of the Tlingit and Haida Tribes of Alaska, she was rejected multiple times when she applied for status.
"You think you're stuck," Salmaniw said.
"If we were successful, I would be joyful because actively, I would've been part, a small part, of being the change I wish to see in the world and for the generations to come, and raising my daughter as a proud Haida girl."
Salmaniw's great-grandfather Wilfred Laurier Bennett gave up his status in 1944 to avoid sending his children to residential school, which was mandatory.
"It's said in stories that he returned from residential school a broken man ... I can only imagine what he experienced there and he wanted to protect his children from it," Salmaniw said.
"I know in a heartbeat, I would do that for my young girl."
Seventy-eight years later, Salmaniw and her daughter Sage might soon be able to regain their status.
"Never in my wildest dreams did I think that we would be getting to this point," Salmaniw said. "It's been really inspiring and healing so far."
The plaintiffs are not seeking damages, said Ryan Beaton, a Vancouver-based lawyer for the plaintiffs from the firm Juristes Power Law.
He said they want to negotiate ways to resolve the issue and would only consider starting up legal action again if they run into roadblocks or extensive delays.
"I have to say that since Minister Hajdu has been appointed to Indigenous Services, there has been a clear change in the pace and tone of discussions," Beaton said. "I am cautiously optimistic."
Hajdu said the agreement is about honouring a commitment she made when she was appointed to Indigenous Services last fall — to look for ways to remove the federal government from a position of litigation and find negotiated solutions.
"That's the best-case scenario," Hajdu said.
"These are, I think, paths forward that will rebuild a trust between the government of Canada and Indigenous people."
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