Lynn Gehl v. Canada: Unstated Paternity and Indian Status
Dr. Lynn Gehl is a First Nations woman who is grounded in the traditional Indigenous knowledge of her Algonquin Anishinaabe culture and tradition. Gehl’s family originates from the Algonquins of Pikwakanagan (formerly Golden Lake Band) in Ontario. Yet, despite her connection to her culture, her Algonquin upbringing, and her ancestral ties to her First Nation, Gehl is denied legal recognition as an “Indian” by the federal government.
But just like Mary Two-Axe Early, Jeanette Corbiere-Lavell, Yvonne Bédard, Sandra Lovelace and Sharon McIvor before her, Gehl is not taking no for an answer. After more than twenty years of applications, protests and appeals, Gehl is headed to court.
Mary Two-Axe was a well-known advocate who challenged Canada’s discriminatory Indian Act which took Indian status away from Indian women if they married a non-Indian. Jeanette-Corbiere Lavell and Yvonne Bédard took Canada all the way to the Supreme Court of Canada to challenge these marrying-out provisions and lost. This gave Sandra Lovelace the opportunity to go straight to the United Nations and argue her case and win. The United Nations decided that Canada cannot enact legislation that denies Indian women and their children the right to enjoy their culture together with their communities.
However, the Bill C-31 amendments, while reinstating some Indian women, still discriminated against many others. Sharon McIvor dedicated 25 years to the court system to challenge this residual discrimination. She also won, but the court left it up to Canada to amend the Act. This resulted in Bill C-3, which remedied some of the discrimination for Indian women, but added more discriminatory provisions to the Act, which forced McIvor to take her case to the United Nations as well. While we wait for the decision in that case, Lynn Gehl has put in over 20 years trying to seek justice for Indian women and their children in terms of unstated paternity.
Today (Monday, October 20th) Gehl and her legal counsel, Christa Big Canoe from Aboriginal Legal Services Toronto, will appear before the Ontario Superior Court to argue that the Indian Act rules around who is an “Indian” are discriminatory on the basis of race, marital status and/or gender. The Indian Act, and the means by which the federal government applies the act to Indian children whose fathers are unknown, results in them receiving a lesser form of Indian status, or no status at all.
Gehl’s case focuses on what is known as unknown or unstated paternity – Aboriginal Affairs and Northern Development Canada’s (AANDC) policy to automatically presume that an unknown or unstated father is a non-Indian – even if the father is, in fact, an Indian. Unstated or unknown paternity manifests in a variety of ways. For example, AANDC will unilaterally determine that the father is non-Indian if:
– an Indian mother does not know the name of the father;
– the father refuses to acknowledge paternity of the child;
– the father refuses to sign the birth certificate and/or Indian registration form;
– the mother does not have the money to complete and file all vital statistics forms; there may be difficulty meeting time-lines for remote First Nations women who must fly into hospitals to have children;
– the underage mothers may have privacy concerns related to paternity in smaller communities; and/or
– an Indian mother refuses to name the father (due to incest, rape, domestic violence).
AANDC is not legally required to process applications with the presumption that an unstated father is a non-Indian. This is a clear policy choice made by AANDC to reduce the number of Indians over time. Prior to 1985, there was a legal presumption of Indian paternity for unwed mothers – there was no mad dash to try to scam the system and register non-entitled children. Thus, there is no reason why AANDC cannot presume Indian paternity in the absence of documentation. At the end of the day, the child is born to, will live with and be raised by his/her Indian mother, family and community.
However, such a policy does not correspond to Canada’s ultimate objective regarding Indians. AANDC’s policy objective has always been “the final solution of the Indian problem” i.e., to ensure “there is not a single Indian in Canada”. In fact, Canada is the last remaining country to determine who is an Indigenous person based on racial characteristics (descent through male blood). It is a racist formulation based on outdated views about biological characteristics of “races” and debunk sciences like eugenics and phrenology which sought to eliminate “undesirable” human populations.
AANDC is the federal government department which created the rules to determine who can be registered as an Indian (status). Indian status confers not only program benefits like education and health care, but also determines who can be a band member; live on the reserve; vote or run for office in a First Nation; and often who is and is not a treaty beneficiary. Just like Canadian citizenship determines whether or not a Canadian can access education and health services from their province, Indian status determines eligibility on the federal side. So, its not that Indians get anything “more” from status in terms of programs, its just the source of the benefits.
AANDC has done an incredible job of misinforming Canadians about the impacts of registering Indians. They often make comments about “floodgates” (i.e. everyone will become an Indian) and “costs” (this will be burden on taxpayers). The truth is, in terms of registrations, it would not have a significant impact.. While the Bill C-31 population projections (Indian women being reinstated to Indian status) ranged from 20-40% increase, the projected increases for unstated paternity are relatively small – approximately 2%. This does not substantiate the fear-mongering around population increases.
Similarly, if the only concern here is money – there is no increased burden on taxpayers. For every person that is registered as an Indian they will get less money for education, health care, housing, food, water, and less child and family services. Status Indians are the most impoverished people in Canada. Plus, its the wealth from Indigenous lands and resources that pay for our programs and services and also subsidizes the programs and services of Canadians – not the other way around. Therefore, there is no financial argument to made against affording equality to Indian women and their children.
This federal policy purposefully, systematically and disproportionately impacts Indigenous women who are most often the primary caregivers of their children and statistically more likely to live in poverty. This is especially true of young, teenage Indigenous mothers – 80% of whom were found to live in households making less than $15,000 a year. These mothers, often lone parents, depend on the federal programs and services associated with Indian status to care for their children.
Gehl is relying on section 15(1) of the Canadian Charter of Rights and Freedoms which guarantees equal benefit of the law without discrimination based. While section 6 of Act may on its face, appear to apply equally to Indian men and women, in reality, AANDC interprets and implements it in a gender-biased manner, which has a substantial and disproportionate impact on Indian women and their children whose paternity is unknown. The fact that AANDC interprets the Act so as to prejudice the descendants of unwed Indian women discriminates against them on the basis of marital status as well.
Section 6 is a modern manifestation of historical discriminatory views of Indian women based on race, gender and marital status that should have been repealed decades ago.
Gehl, who has five continuous generations of Indian lineage on her paternal side, will argue that she should be registered as an Indian. She will also seek a declaration from the court that Section 6 of the Indian Act:
(1) Discriminates against applicants born out of wedlock;
(2) Discriminates against applicants who do not know their paternity; and
(3) Be applied so as not to disadvantage the descendants of individuals whose paternity is unknown.
Other recommendations for change from Indigenous women have included:
– Amend the Act to permit registration based on one parent’s registration;
– AANDC should discontinue its discriminatory interpretation and implementation of the registration provisions;
– AANDC should specifically eliminate the unstated paternity policy;
– Remove administrative and financial barriers to timely and accurate birth registrations;
– Provide legal and social protections to young mothers to protect their rights to privacy, personal safety and registration of their children.
Gehl, like Sandra Lovelace and Sharon McIvor have spent decades in the courts fighting for their right to belong. It’s time Canada afforded equality to all people – including Indigenous women.
Selection of sources on Unstated Paternity:
Lynn Gehl personal website
Palmater, Beyond Blood: Rethinking Indigenous Identity (Saskatoon: Purich Publishing, 2011).
Mann, Indian Registration: Unrecognized and Unstated Paternity (2013)
Mann, Disproportionate and Unjustifiable: Teen First Nations Mothers and Unstated Paternity Policy (2013)
Gehl, Indian Rights for Indian Babies: Canada’s “Unstated Paternity Policy” (2013)
National Aboriginal Women’s Association, Aboriginal Women and Unstated Paternity (2007)
Clatworthy, Indian and Northern Affairs Canada, Factors Contributing to Unstated Paternity (2003)