Even after amendments were made to eliminate lingering gender discrimination within the Indian Act, inequalities in other areas of registration remain.
It's something Karl Hele, a member of the Garden River First Nation in Ontario, is hoping the Quebec Superior Court will change for his eight-year-old daughter Annora. She was denied Indian status because Hele's mother voluntarily enfranchised in 1965.
"The government still hasn't gotten rid of this idea of enfranchisement or assimilation. It's still there in how they register people," said Hele, an associate professor at Mount Allison University in Sackville, N.B.
What is enfranchisement?
The process of enfranchisement began in 1857 under the Gradual Civilization Act as an assimilation policy, and continued under the Indian Act of 1876. Enfranchisement meant gaining "citizenship" while losing treaty rights and Indian status. In many instances enfranchisement was involuntary, such as when First Nations women married non-First Nations men or if a First Nations person obtained a university degree.
From 1876 to 1985, individuals could apply to be voluntarily enfranchised by showing they were "capable of assuming the duties and responsibilities of citizenship." It's what Karl Hele's mother Margaret Hele did in 1965 after her family in Garden River were being harassed by band council officials when she left the community to teach across Ontario.
"I was upset, and said I'd get my papers and enfranchise. That's what I did without thinking. I was more thinking of my mother," said Margaret Hele, 79.
"I feel that I shouldn't have done it. I don't know what I could have done. I regret doing that but hopefully Karl can change it."
Court will hear appeal in January
Bill C-31 removed both voluntary and involuntary enfranchisement provisions from the Indian Act in 1985. Margaret Hele regained status and is categorized as 6(1)(d), and her son received 6(2) status.
Had Margaret Hele been enfranchised upon marriage, her granddaughter would have been eligible for status with the 2011 amendments to the Indian Act.
The Indian Registrar rejected the application for Annora's status on April 3, 2012. Karl Hele contested the decision in 2015 by filing a protest with the Registrar. In 2017, the Registrar rejected the protest, and Karl Hele filed an appeal in 2018. The Quebec Superior Court will hear the appeal in January in Montreal.
"I'm hoping it forces changes," said Karl Hele.
"I'm hoping it has very positive impact on descendants who find themselves in my circumstance. There's pride and heritage, yet for any access to rights, you need that damn Certificate of Indian Status card.
"For me, it's about the government acknowledging our Anishinaabe-ness doesn't disappear and she's able to access her rights as a treaty person."
Hele's lawyer David Schulze is arguing single First Nations women were not actually able to enfranchise by application according to the Indian Act at the time.
The act at the time stated that if an application was made and conditions were met "the Governor in Council may by order declare that the Indian and his wife and minor unmarried children are enfranchised."
"What we're saying is the Indian Act pre-1985 was deeply sexist and it was so sexist that Karl's mother actually wasn't legally entitled to enfranchise herself," said Schulze.
"It's null and void and she should have been treated like her sisters who married out."
Report recommended addressing enfranchisement
Last year, Claudette Dumont-Smith consulted with First Nations across Canada on the reform of Indian Act status, band membership and First Nations citizenship. Her May 2019 report to the government stated that even if the enfranchisement was listed as voluntary, it was often done under duress.
She recommended that the remaining inequalities resulting from the enfranchisement process must be addressed by the government, including providing names of all persons who were enfranchised dating back as far back as 1876 to their community of origin so that they can trace the lineage of their descendants for reinstatement, and all persons who are currently categorized as 6(2) as a result of the enfranchisement process, such as Karl Hele, should be reinstated as 6(1).
Crown-Indigenous Relations and Northern Affairs Canada has not yet responded to a request for comment but in its June 2019 report to Parliament on the consultation process, it stated it would "work collaboratively with First Nations to develop measures for addressing other inequities related to registration and membership under the Indian Act."
It leaves few options for the Hele family in the time being.
"I just think it's disappointing that we once again have to spend time in court on a case like Karl Hele's family," said Schulze.
"Should we be creating situations where cousins in the same situation have different status — is that healthy for any community? And if it's not, can't we just amend the Indian Act? But we never amend the Indian Act till the courts force us to."