Indigenous identity has been a hot topic in the news of late. It is controversial, complicated and something hard for a room full of people to agree on. The difficulty of achieving consensus poses issues for Indigenous people to exercise the inherent right to self-determination.
Everybody seems to be talking about how complicated Indigenous identity is. People seem less keen to discuss why it's so complicated (Spoiler alert: it's colonialism!). Today’s post will trace the history of Canada’s harmful approach to defining Indigenous identity to try to understand how things have ended up where they are.
We only need to accept the fact that Indigenous people were and sometimes still are called Indian even though we are very far from India to understand that colonial authorities have distorted views of Indigenous people. We prefer the term Indigenous (or better still, Nehiyaw, Blackfoot, Anishinabek, etc). The term “Indian” is used to refer to legislation that uses the term.
Excessive fraught issues around Indigenous identity stem from colonial harms by the Federal government. These harms are carried out through the exercise of federal jurisdiction under section 91(24) of the Constitution: Indians and lands reserved for Indians. [1] The Supreme Court of Canada held that defining who is and who is not a status Indian is “at the core of s. 91(24)’s legislative jurisdiction.”
The government of Canada’s first attempt to legislate who was and was not considered to be “Indian” was in the Act for the better protection of the Lands and Property of the Indians in Lower Canada, a predecessor of the Indian Act. The definition of “status” in this act is broad relative to how status is defined today. Under this predecessor act, eligibility for Indian status include people who are “of Indian blood,” who “have a parent of Indian blood”, who “intermarried into the community and reside there,” and those “who were adopted as infants and lived in the community.” [2]
This approach was adopted partly in response to how Indigenous communities organized themselves with respect to identity and belonging. Bands registered under the Indian Act were entitled to funding on a per capita basis, calculated sometimes with very loose reference to the number of registered band members.
By 1857, the government of Canada must have realized that an inclusive definition of who is and who isn’t Indigenous would be very expensive. So they tried to lure people into giving up their Indian status in exchange for land and the right to vote. Only one person voluntarily enfranchised, so the government narrowed the criteria for status and in doing so created inequities, especially for Indigenous women and their descendants through a policy of enfranchisement.
Enfranchisement then became a legal process through which Indigenous women were stripped of Indian Act status when they married a non-Indigenous man. When these women lost status, Indian Act bands lost out on per capita funding. Bands were consequently unable to meet the needs of their communities and the women stripped of status at the same time. Many Indigenous women were turned away from their communities. When we look past the surface of gender-based violence, we can see that this was also a harm to governance in Indigenous societies that are often matrilineal.
Meanwhile, Non-Indigenous women who married Indigenous men were registered as status Indians and entitled to live in communities. Today this feels like colonialism, that a non-Indigenous person can claim the benefits of being Indigenous. However, with the origins of Indian status in mind, the colonial harm is much more insidious.
Traditionally, most Indigenous communities accepted people who married in and lived among them as members of the community. The enfranchisement policy drove a wedge between Indigenous women and non-Indigenous women who married Indigenous men. The harmful effects of excluding Indigenous women distorted community practices of accepting intermarriages to be seen as only a vehicle for colonial harm. This resulted in many Indigenous communities turning their backs on how they defined themselves to placate a violent federal government.
Courts have been clear that the federal government owes a fiduciary duty to Indigenous people when making decisions that will affect them. [3] This means that the federal government must consider the interests of Indigenous people above their own interests. Unfortunately, it was often reasoned that it would be in the best interests of Indigenous people to fully assimilate into “mainstream” society.
This approach to considering the “best interests” of Indigenous people has landed us in a dark morass of Indigenous identity, where the federal government sits as the de facto arbiter of who is Indigenous. Check back in with us on Friday for a discussion on Indigenous identity fraud.
Until next time,
The reconciliACTIONyeg team
Citations
[1] Constitution Act, 1867
[2] Act for the better protection of the Lands and Property of the Indians in Lower Canada, 1850
[3] R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 SCR 723
