Tag: metis

Justice system still not protecting Indigenous women and girls

(Picture by Pam Palmater, Rally for Justice for Murdered and Missing Indigenous Women and Girls in Winnipeg)

This article was originally published in The Lawyer’s Daily on May, 28, 2019.

“Her life mattered. She was valued. She was important. She was loved.”

R. v. Barton [2019] S.C.J. No. 33.

Cindy Gladue was an Indigenous woman originally from Alberta, where she grew up with her four siblings and extended family. She was also the mother to three daughters and her family described her as both a loving mother and caring auntie. She had close friends and always dreamed about being the first in her family to go to university. Cindy Gladue loved and was loved. She did not deserve her violent death in 2011 nor the indignity done to her body after.

She is now one of the many thousands of murdered and missing Indigenous women and girls in Canada — a growing crisis that represents grave human rights violations. The trial of the man who admittedly committed this act of violence against Cindy is an example of how defective Canada’s justice system is when it comes to Indigenous women victims and how negligent Canada has been in ensuring the basic human rights of Indigenous women and girls are met.

In this column, there will be no details about Cindy’s appearance, what she wore the night she was killed, where she was killed, whether she knew her killer, her level of education, her health status, or what she did for a living — because none of the facts is relevant to her death. Cindy is not to blame for her death. Cindy did not kill herself. Cindy did not engage in a dangerous knife fight or try to kill someone.

Regardless of which version of the story is accepted by the next trial judge — that she was killed by a male trucker who violently cut an 11-cm gash in her vagina, or that she died from a tear from his violent, but unarmed interaction with her — she still died as a result. According to the SCC quoting from evidence at trial, the trucker then tried to hide evidence, change the crime scene and lie about his involvement. His name doesn’t deserve to be said aloud, nor does he get to hide behind any of the racist or sexist excuses he used at trial to defend himself. None of the evidence referred to at trial or the SCC indicates that he should be believed. Cindy’s life story does not get to be narrated by the man who admits to committing this violence against her.

Sexualized violence against Indigenous women and girls in Canada has been allowed to continue in plain sight by government officials, police officers, lawyers and judges who have treated Indigenous women and girls as though they are less worthy of life. In fact, were it not for the lengthy and persistent advocacy of Indigenous women and their allies, Canadians would still be unaware of the crisis.

However, awareness of the crisis only gets us so far. The court proceedings which followed Cindy’s death show just how deeply engrained racism and sexism against Indigenous women still is in Canadian society, especially the justice system. In R. v. Barton [2019] S.C.J. No. 33, Justice Michael Moldaver, writing for the majority, allowed the accused’s appeal in part and sent the matter back to trial, but only on the charge of the unlawful act of manslaughter. The dissent would have dismissed the accused’s appeal entirely. Justices Rosalie Silberman Abella and Andromache Karakatsanis writing for the dissent (Chief Justice Richard Wagner concurring) agreed with the Alberta Court of Appeal that the matter be ordered back for retrial on both charges of first-degree murder and manslaughter.

The majority made some important points about the extent to which racism is still widespread in the justice system. At para.199, the majority explained: “Furthermore, this Court has acknowledged on several occasions the detrimental effects of widespread racism against Indigenous people within our criminal justice system. For example, in Williams, this Court recognized that Indigenous people are the target of hurtful biases, stereotypes, and assumptions, including stereotypes about credibility, worthiness, and criminal propensity, to name just a few. … In short, when it comes to truth and reconciliation from a criminal justice system perspective, much-needed work remains to be done.”

They went on to say that the criminal justice system and all of its participants must take reasonable steps to address these biases — especially against Indigenous women. To this end, they directed that, on a go forward basis, trial judges ought to provide express instruction to juries to counter the well-known prejudice against Indigenous women. While there is no set text, trial judges should instruct juries about Indigenous women and girls having been subjected to a long history of colonization and systemic racism and then dispel myths about Indigenous women and those who are exploited for sex. These stereotypes were outlined in para. 202:

– Are not entitled to legal protections;

– Not deserving of respect, humanity and dignity;

– Are sexual objects for male gratification;

– Are available for the taking and no consent needed;

– Assume any risks associated with “sex work”;

– Are less credible than other people.

The majority further stressed that, as a matter of respect, both the Crown and the defence counsel should have referred to her as Ms. Gladue instead of “Native girl” during the trial. These are important points and the SCC made many important clarifications in the case in relation to the many problems surrounding sexual assault cases.

However, there is a downside to the majority’s decision. Their logic and reasoning around the impact of racism and bias in this case did not follow through to their ultimate finding. The majority allowed the accused’s appeal in part, by limiting the charge for which the killer could be retried — manslaughter only. The dissent pointed out that racism doesn’t work that way and can’t be so easily compartmentalized. They explained that there was no “filter” on the victim’s prior sexual history and no warning by the judge to the jury to avoid making stereotypical assumptions about Indigenous women.

They also argued that this created an image of Cindy “that was unfair and would have permeated the whole trial and the jury’s deliberations on both murder and manslaughter” (para. 214). The dissent further emphasized, “He [trial judge] provided no specific instructions crafted to confront the operative social and racial biases potentially at work. This rendered the whole trial unfair” (para. 215).

While the dissent did go further than the majority, they too missed an important opportunity to speak to the indignity committed against Cindy’s body after her death when segments of her vagina were brought into court as an exhibit. Cindy was a life-giving mother of three girls. Her body and her life-giving parts had already suffered a gross violation which led to her death. There was no necessity — in an effort to prosecute her killer — to remove her life-giving parts and put them on display in a courtroom. They could have used the coroner’s testimony, animated illustrations of the extent of the cut or tear, and worst-case scenario, pictures. Putting her life-giving parts on display served to further dehumanize her before the judge and jury.

Even though the SCC made some important findings in this case, their caution that the justice system has a lot more work to do applies equally to them. We need more than the “important step forward” they commended themselves for — we need a wholescale change. That won’t happen if the highest court in the land cannot call out and end the kind of indignity committed against Cindy — which represents the many indignities committed against Indigenous women and girls since contact.

This article was originally published in The Lawyer’s Daily on May, 28, 2019 – link below:

https://www.thelawyersdaily.ca/articles/12605/justice-system-still-not-protecting-indigenous-women-and-girls-pamela-palmater-?category=opinion

May 28, 2019
Bill C-92’s Indigenous Child Welfare Act: More Pan-Indigenous Legislation that Risks Continuing the Status Quo

Bill C-92 An Act respecting First Nations, Inuit and Metis children, youth and families has been heralded as a “historic turning point”, an “important first step”, a “major milestone” and other similarly over-used and under-impressive political phrases to describe yet another top-down initiative from the federal government. While the Assembly of First Nations National Chief Perry Bellegarde (AFN) claimed that this legislation was “co-drafted” by the AFN and the federal government, that was not the case. In fact, Dr. Cindy Blackstock confirmed that First Nations did not co-draft the legislation and First Nations were not even permitted to see the second draft before it was tabled. This should be no surprise as Justice Canada does not co-draft legislation with anyone other than the French and English legislative drafters at Justice Canada – this is their long-standing practice. Bill C-92 content is glaring evidence that First Nation experts in child welfare did not hold the pen on this bill.

There are many problems with this bill, but the main problem is it does not deliver any of what was promised by the federal government. Prime Minister Trudeau’s Liberal government promised to address the “humanitarian crisis” through federal legislation that fully recognized First Nation jurisdiction in relation to child welfare; that would provide statutory funding; and would eliminate the over-representation of First Nation children in care. If this bill is not substantially amended before it is passed, it will not accomplish any of those important goals. Ultimately, it will be our children and our families on the ground – in our communities – that will pay the biggest price. The fact that the AFN is promoting this bill so strenuously, without regard for the numerous and serious concerns raised by First Nation leaders, lawyers, academics and child welfare experts, shows how disconnected they are to the crisis at hand.

Despite the many issues raised by the Assembly of Manitoba Chiefs, the First Nations Child and Family Caring Society and others, the AFN supports this bill as do the Metis National Council (MNC) and Inuit Tapiriit Kanatami (ITK). While I also have numerous, detailed concerns with the wording, structure and content of this bill, they are too many to include in this blog. What follows is a general overview of my concerns from a First Nation perspective.

Pan-Indigenous Legislation

First of all, pan-Indian legislation has always been difficult to work with because of the differences between the 50-60 traditional Indigenous Nations in Canada that are now separated into 634+/- individual First Nations (Indian bands), across various provinces and within different treaty areas (some without treaties). However, pan-First Nation legislation, with opt-in clauses and flexible provisions to deal with legal, political and cultural variances, would be far superior to what is offered in this bill. Bill C-92 purports to cram First Nations, Inuit and Metis into one act that offers the same legislative options to all three groups – despite their vastly different histories, socio-economic conditions and rights.

There are vast differences between the legal rights and specific needs of First Nations, Inuit and the Metis. For example, the Metis have much better socio-economic conditions than First Nations and Inuit. Geographic differences between the Inuit and First Nations and Metis, also require solutions tailored to their unique situation. Failure to do so can create inequalities between the groups.

Substantive Inequality

This bill also misses the mark in its purported goal to support Nation-to-Nation (First Nations), government-to-government (Metis) and Inuit-Crown relations by treating us all the same. Here’s the problem – when Canada treats all three groups formally the same, it prejudices the rights, needs and interests of those with more acute conditions. In other words, by treating all three groups as formally equally, those with the most acute needs will be treated substantively unequal. While disadvantage should never be about a “race to the bottom”, formal equality will embed discrimination into the very structure of this legislation and will operate to disadvantage First Nations in particular. First Nations are larger in population, have higher rates of child apprehensions and higher rates of underlying poverty, caused by the kinds of land dispossession and breach of treaty rights not experienced by Metis (with some exceptions).

That is not to say that the Metis should not have their own framework- that is for them to decide what works best for them with the needs of their own constituency. First Nation, Metis and Inuit options should not be limited to the same generic legislative framework, from the same budget line, which assumes the same socio-economic needs, legal rights and interests. This pan-Indigenous template is not in line with the federal government’s promised “distinctions-based” approach and serves to embed substantive inequality into the act.

First Nation Jurisdiction

First Nation jurisdiction should be the heart of this bill. At best, what is offered is a delegated authority under federal jurisdiction, which is conditional on agreement with the provinces. At worst, this bill increases federal Ministerial control, while leaving provincial laws, policies and practices virtually in tact. Bill C-92 creates new powers for an unnamed federal Minister to carry out the provisions of the legislation, make regulations, possibly collect data and provide a report to Parliament after five years. What is missing is the original purpose of the bill: to recognize First Nation jurisdiction. While it purports to recognize First Nation jurisdiction, it does so with several substantive conditions. First Nation jurisdiction and laws in relation to child welfare appear to be directly or indirectly subject to the following limits:

–          Canadian Charter of Rights and Freedoms;

–          Canadian Human Rights Act;

–          Section 35 Constitution Act, 1982 jurisprudence and limits in relation to constitutionally protected rights;

–          “Inherent right to self-government” which indirectly incorporates the impoverished definition of self-determination outlined in the Inherent Right Policy;

–          Constitution Act, 1867, section 92 provincial jurisdiction, i.e. provincial laws are the minimum standard;

–          Successful negotiation of a tri-lateral coordination agreement between the First Nation, province and federal government (or proof they made good faith effort to negotiate);

–          Pre-existing definitions of “best interests of the child” from legal precedents;

–          Sections 10-15 of Bill C-92, which outlines specific limitations in relation to the best interests of the child, parental representation, notice of apprehensions, preventative care as the priority, and no apprehensions due to poverty.

If a First Nation manages to ensure their laws meet all of these conditions, then they could be recognized as a “federal law”, but not a law in their own right – based on First Nation jurisdiction. It seems very clear that what is being offered is a delegated authority under federal jurisdiction, which is also limited by the constitutional division of powers. Nothing in this bill binds a provincial government or requires them to even come to the table – let alone contribute any funding. Some First Nations may be okay with exercising their powers this way in order to address the urgent crisis, but the federal government should just be honest about it and stop trying to package it as First Nation jurisdiction.

There is also no specific recognition for pre-existing First Nation laws – oral or written – except in the case of self-government agreements, and these laws would only be paramount to the extent of any conflict with Bill C-92. What of First Nations that choose not to make agreements with the province? What if a First Nation chooses to negotiate only with the federal government? There are far more questions than answers in this bill – all of which need to be addressed in order to avoid legal chaos and uncertainty around jurisdiction.

Funding & Socio-Economic Conditions

My last major concern about this bill is the failure to include clear, directive language that would provide a statutory guarantee for annual funding, that is based on equal access to holistic, wrap- around social programs and services, that take into account specific needs, population increases, inflation, geographic location, and actual costs. Without this statutory guarantee, any recognition or First Nation jurisdiction is entirely hollow. Substantial funds are required for the development and enforcement of First Nation laws, policies and regulations in relation to child and family services; staffing and training; infrastructure; legal and technical research and advisory services; data collection and analysis; and monitoring, compliance, reporting and enforcement. The core issue has always been the long-standing chronic and discriminatory under-funding of social services for First Nations, like food, water, housing, health and education. This racist under-funding is what created the crisis and serves to maintain. Legislation is not needed to end discriminatory funding, but if legislation is to be enacted, a firm commitment for funding needs to be included.

It is noteworthy that there is no mention of First Nation Aboriginal rights or treaty rights in relation to the funding that attaches to child welfare. While it may be politically expedient to create an act that is neutral on “rights” for all parties, this must be in exchange for a substantive, enforceable legal funding commitment. Long gone are the days where First Nations can reasonably or responsibly rely on the word of Ministers to hope that they fulfill their political promises. Ministers change, governments change and the law changes – which is why, if there is to be legislation, that it include a statutory guarantee of funding. Without it, this legislation is empty of any real intention or ability to end the status quo – a price that will continue to be paid by our children and their children. First Nation cannot afford to lose any more children to a racist and sexually violent system that decreases their life chances and limits their ability to enjoy life with their families, communities, and Nations. The increasing foster care rates, incarceration rates and murdered and missing rates compel us to act urgently and with purpose.

All that is required is for Parliament to sit down with First Nation child welfare experts and make the required amendments. Without substantive amendments, this bill may end up causing more harm than good and inject legal chaos into an already broken system and risk the lives of more of our children. Canada has apologized for the trauma caused by residential schools, while at the same time admitting that child welfare has continued the trauma. Canada has stated that this is a humanitarian crisis and as such is legally and morally bound to do better.

It’s time to sit at the table and urgently work this out for the sake of the children. Video of my recent testimony to Senate Committee on Aboriginal Peoples pre-study on C-92: https://www.youtube.com/watch?v=vkcl0iF0Yic To listen to my 3-part extended interview with Dr. Cindy Blackstock on my podcast show: Warrior Life, here is the link: https://soundcloud.com/pampalmater/cindy-blackstock-on-justice-and-equality-for-first-nation-children If you prefer video instead of podcast, you can listen and watch on my YouTube channel here: https://www.youtube.com/watch?v=t5LvH3LY_20&t=2s

March 28, 2019
Daniels v. Canada – We are all “aborigines”

The Daniels decision hasn’t been out for 24 hours yet and already there is mass confusion about what it does and does not say. Despite the buzz in mainstream and social media, it does NOT make Metis and non-status Indians “Indians” under the Indian Act. The case also does NOT give Metis and non-status Indians any “rights”. This wasn’t a case about hunting or fishing. So, for all the emails, Facebook messages and inquiries I have received from people asking if I can help them become registered (status) Indians or whether they can get free education now – this case does not do that. While the case itself was an important one, the actual decision imported more problems than it resolved.

It was a case designed specifically to answer the question about whether Metis and non-status Indians are included in the definition of the term “Indian” in section 91(24) of the Constitution Act 1867 (also referred to as British North America Act). The Supreme Court of Canada’s (SCC) answer was “yes”.

Sections 91 and 92 of the Constitution Act 1867 set out the jurisdictional powers of the federal and provincial governments. Jurisdiction means an authority or power over a certain area. Generally, it does NOT create a legal obligation to act or legislate in that specific area. These individual areas of jurisdiction are referred to as “heads of power”. For example, the federal government has jurisdiction over things like criminal law, divorce law, banking and the military. The provinces have powers over hospitals, charities and taverns. The head of power at issue in this case is section 91(24) Indians and lands reserved for the Indians.

It should be remembered that this is NOT the first SCC case on what the term “Indian” includes under section 91(24). In 1939, the federal government and province of Quebec sought clarification from the court as to whether the term “Eskimo” now referred to as “Inuit” was included in the term “Indian”. In that case, the court used historical documents to demonstrate that while the Inuit were unique, they were considered to one of many “tribes” of Indians. As a result, the Inuit are considered “Indians” for the purposes of section 91(24) federal jurisdiction. This did NOT mean that all Inuit were registered as Indians under the Indian Act. In fact, section 4(1) of the Indian Act specifically states:

4(1) A reference in this Act to an Indian does not include any person of the race of aborigines commonly referred to as Inuit.

The term “aborigine” is not defined in the Indian Act, but commonly refers to an indigenous person of a particular territory or country –the original inhabitants. The question now is whether Canada will make Metis and non-status Indians a new group of “aborigines” to be specifically excluded from the Indian Act, like the Inuit.

Just because Metis and non-status Indians have been recognized as “Indians” for the purposes of section 91(24) of the Constitution Act 1867, this does not mean that they will ever be included in the Indian Act or registered as Indians. Nor does it mean they will get a house on reserve, be considered treaty beneficiaries, or access any other legal entitlement. Inuit do not live on reserves nor are they considered First Nations. It is unlikely that the federal government will put Metis on reserves either.

Remember, it is not the Indian Act that sets out rules and regulations around “benefits” or “rights”. Whether or not Indian and Northern Affairs Canada (INAC) grants a benefit or decides to recognize a legal right is a matter of policy – i.e., a government decision made at Indian and Northern Affairs Canada (INAC) usually in consultation with Justice Canada, Treasury Board, the Prime Minister’s Officer and/or various other interested departments like Fisheries and Oceans (if related to fishing right for example).

Despite the fact that many of our rights are LEGAL rights protected by Indigenous laws, treaties and agreements, as well as domestic and international laws – most often the government lumps all “Indian” issues into generic policies that may not reflect the extent of our legal rights at all. In fact, Canada’s most common legal argument is that any “benefit” provided to Indians is out of the good will of the government (a matter of policy) and not out of any legal obligation. This is what the SCC referred to as “noblesse oblige” where the government mistakenly thinks that Indigenous rights are a matter of charity or generosity versus legal obligation.

What this case will do is break through the jurisdictional “limbo” to which Metis and non-status Indians have been relegated and force both federal and provincial governments to include Metis and non-status Indians in their consultation activities. While the court did not grant 2 of the 3 requested declarations, it DID confirm that governments have a fiduciary duty towards Metis and non-status Indians (duty to act in their best interests), AND that they must negotiate with them and consult with them on decisions impacting their rights.

That is the most neutral thing that I can say about this decision. In EVERY other way, this decision is one of the worst messes to come out of the SCC. While it may sort out who is an Indian, it does nothing to address the problems faced by Indians in accessing various federal programs and services. Remember, Jordan River Anderson was a registered Indian child, under federal jurisdiction, yet the province and federal government BOTH refused to pay for his health services and he died in hospital never seeing his home. Magically becoming an Indian doesn’t resolve the ongoing federal-provincial dispute over coverage for individuals living OFF reserve, let alone those normally resident on reserve.

On the Indigenous rights front – inherent, Aboriginal and treaty rights – this case is damaging.

To my mind, the Daniels decision is less about reconciliation and more about erasure of Indigenous sovereignty and identity. It takes John Ralston Saul’s idea of “we are all Metis people” together with the newest Canadian slogan “we are all treaty people” and opens the floodgates to every person in Canada claiming a long lost Indian ancestor and asserting their identity and control over our lands and rights. It has the potential to effectively eliminate any real sovereignty or jurisdiction Indigenous Nations have over our own citizens and territories. It does not bolster Metis claims, but instead confuses them. It does not address the discrimination faced by actual non-status Indians, but paints them with the Metis “mixed people” brush. The very unique and specific circumstances of non-status Indians are completely over-looked in this decision.

We have gone from sovereign Indigenous Nations – to one generic group of Indians – to distinctions-based groups (Indian, Inuit and Metis) – and now back to Indians – all for the express purpose of reducing us to an “interest group” of “Aboriginal people”. This is not good for anyone. Certainly, no one asked us what we thought. Once again, National Aboriginal Organizations are at the helm – directing the pirate ship to ensure they get their cut of program funds for their organizations. Their win is big – they’ll likely get increased funding to set up new negotiating tables. For the Indigenous Nations on the ground – a new burden has been placed on us – proving that the thousands of newly-minted, self-identified “Indians” do NOT speak for us and do NOT have a say over our lands. For those who have been wrongly excluded by government laws policy (like Indigenous women and their children) – their new challenge will be to distinguish themselves from the floodgate of false claims to come – a burden not rightly borne by those who have already suffered so long at the hands of government discrimination.

This decision, taken together with Trudeau’s White Paper 2.0 (the nice version), means we have many battles ahead. Please read this decision critically – don’t partake in the celebrations just yet.

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15858/index.do

April 15, 2016
What is a Non-Status Indian?

What is a Non-Status Indian? People ask me this question nearly everyday. Some people think Non-Status Indians are really just Métis people – those with mixed Aboriginal and non-Aboriginal ancestry. Others think that a Non-Status Indian is any person who is not registered under the Indian Act as an “Indian” – i.e. they are not Aboriginal people. I have even had government officials query whether we can ever know what a Non-Status Indian is as there is no legislative definition for them. For many years, some Aboriginal political organisations that represent Aboriginal peoples living off-reserve also represented Métis peoples. For example, the New Brunswick Aboriginal Peoples Council (NBAPC) used to be called the New Brunswick Association of Métis and Non-Status Indians. Although the Minister of Indian and Northern Affairs Canada (INAC) now has responsibility for Status Indians, Non-Status and Métis people, it wasn’t always that way. The Minister of INAC used to be responsible for status Indians and there was a Federal Interlocutor who was specifically responsible for Métis and Non-Status Indians. The terms Métis and Non-Status Indian have been used together for so long that there is understandable confusion about the two. In the most simplest terms – Métis people are those people who have descended from Métis groups across the country. These Métis groups were originally born from unions between Aboriginal peoples (Cree, Ojibway etc) and non-Aboriginal peoples and went on to identify not with their Aboriginal ancestors, nor did they identify with their non-Aboriginal ancestors. Métis peoples saw themselves as distinct from both groups and went on to develop their own practices, customs, traditions, languages and so forth. It is a common misunderstanding to refer to someone with mixed Aboriginal/non-Aboriginal ancestry as Métis, at least without knowing more. What about Non-Status Indians? Are they not Aboriginal people with mixed ancestries? Sometimes yes and sometimes no. Many Non-Status Indians have no more of a mixed ancestral heritage than do status Indians. So, then what is a Non-Status Indian? INAC’s website defines the term Non-Status Indian as follows: “…commonly refers to people who identify themselves as Indians but who are not entitled to registration on the Indian Registrar pursuant to the Indian Act.” The University of Saskatchewan’s Online Encyclopedia defines Non-Status Indians as follows: “People who are identified as Non-Status Indians in Canada are individuals who are not considered as Registered Indians because either they or their ancestors were refused or lost their Indian status through the mechanisms of the Indian Act, and who do not identify as being Métis. The mechanism by which people lost their status was “enfranchisement.” The most common method of enfranchisement was through intermarriage, whereby a Status Indian woman marrying a non-Indian man lost her Indian status—as did her children; this law existed until the Indian Act was amended in 1985. Other ways in which individuals could be enfranchised was by obtaining the federal right to vote (until 1960), feeing simple title to land, or receiving a university degree (until 1951). ” Professor and lawyer, Joseph Magnet had this to say about Non-Status Indians in his article “Who are the Aboriginal Peoples of Canada?”: “The consistent narrowing of the definition of ‘Indian’ in various amendments to the Indian Act created a large population of Aboriginal people without Indian status, or the rights and entitlements that attach to it – the non-status Indians… The population of non-status Indians is larger than is discerned by considering the legal exceptions in the various Indian Acts, however. It also includes people of Aboriginal ancestry and culture who were never entitled to register in 1876, as well as Aboriginal people entitled to register who chose not to submit themselves to the Department’s control….The non-status population includes the historical Indians and their descendants.” While all of these definitions are accurate, it may be simpler to say that Non-Status Indians are those people who identify as Indian (i.e. Mohawk, Mi’kmaq, Cree, Maliseet, etc) but who by choice or legislative exclusion are not registered under the Indian Act as Indians (i.e. they do not have “status”). For many, the term Non-Status Indian is not so much an identity, but a state of being. For example, I am a Mi’kmaq person and have always identified as such. My larger extended family is Mi’kmaq and we have worked our whole lives towards improving the lives of Mi’kmaq and other Aboriginal peoples who live off-reserve and who are treated differently because they lack a residence on reserve and/or because they do not have status under the Indian Act. I was raised to know the community from which my family originated, the traditions and practices of my Nation as well as the people who share the same Mi’kmaq history. While I identify as Mi’kmaq, I am also aware that due to gender discrimination in the Indian Act, I am not currently entitled to be a registered (status) Indian, despite the fact that my father was a status Indian and band member at Eel River Bar First Nation in New Brunswick. Therefore, I am a non-status Indian, i.e. a Mi’kmaq who is not registered under the Indian Act. That is my state of being as so decided by a government official at INAC. Some people have asked why I would continue to refer to myself or my situation with such a negative label as Non-Status Indian. My only answer is this: so long as there is a discriminatory federal process that tells me I am a Non-Status Indian, then I have an obligation to use the term, educate people about the term and work towards finally getting rid of the need to even have the term. Other terms such as First Nations or off-reserve Aboriginal peoples may include both status and Non-Status Indians. However, the saying “out of sight – out of mind” applies especially to this situation. In my opinion, generic terms tend to hide the fact that Non-Status Indians exist and this creates a lack of awareness about their issues. Non-Status Indians are being discriminated against on the basis of their gender, birth/blood status, and/or marital/family status. Some are denied band membership simply because they do not have status. Many do not qualify for federal programs and services because they lack status. Some are even denied the right to call themselves Cree, Mi’kmaq or Mohawk because some Aboriginal communities have come to associate their identities with federal recognition – i.e. status. These issues affect the quality of life of thousands of us across the country. We need to acknowledge the problem and find solutions. There are Non-Status Indians who live on and off-reserve, who do and don’t have band membership, who are and are not welcome in their home communities and those who associate with off-reserve political groups and those who don’t. One cannot easily generalize when it comes to Non-Status Indians, but certain demographic facts should be highlighted: Aboriginal women and their children are disproportionately affected by the discrimination of the Indian Act’s status provisions and comprise a higher number of Non-Status Indians. Non-Status Indians also suffer from the same poor socio-economic conditions as their status Indian brothers and sisters. Most live off-reserve and receive little assistance from federal and provincial governments or their own Aboriginal communities. It is time that all Aboriginal people started talking about this situation and included Non-Status Indians of all backgrounds in the discussion. That includes ensuring that Non-Status Indians are at the table when treaties, land claims, self-government and other issues of importance are discussed. As with most issues involving Aboriginal peoples, identity is a complex political, social, historical. cultural and legal issue that requires a deeper conversation amongst ourselves. First and foremost however, it requires a rejection of Canada’s presumed jurisdiction over our identity and the discriminatory tools it has used to label and divide us (status). There can be no right more inherent or more integral to one’s culture than the right of Aboriginal Nations to be self-defining. Hopefully, this has helped to answer the questions you have all e-mailed me recently about Non-Status Indians. There is a great deal more information out there regarding Non-Status Indians and I encourage you all to look for it and come up with your own thoughts and ideas about the issues we face and join the discussion. For those who are interested, you can get more information on my website at http://www.nonstatusindian.com/. You can also follow me on Facebook under the name Non Statusindian or on Twitter as Pam_Palmater. At any time, please feel free to e-mail me at palmater@nonstatusindian.com Pam

January 6, 2010