A Quebec Superior Court judge has ruled that it was against the Indian Act for unmarried First Nations women to voluntarily enfranchise, giving up their Indian status, and has ordered records to be changed for at least one woman who did so over 50 years ago.
The decision is a win for Karl Hele, an associate professor at Mount Allison University in Sackville, N.B. and member of Garden River First Nation, Ont. He took Canada to court earlier this year after his eight-year-old daughter Annora was denied Indian status because his mother Margaret Hele voluntarily enfranchised in 1965.
"I still think it's crazy that I had to go to court to fight this," said Hele.
"The government keeps changing the Act to get rid of this gender bias, but it completely floored me that they were using such little miniscule interpretations of rules to block registration, status, and people's rights."
The Indian Registrar rejected the application for Annora's status in 2012. Hele filed a protest with the Registrar and it was rejected. Hele filed an appeal with the Quebec Superior Court, which heard the appeal in January.
Justice Barak Barin wrote in his July 31 decision that the section upon which the Indian Registrar denied Annora's registration does not apply to unmarried First Nations women, meaning it was against the Indian Act to allow unmarried women like Margaret Hele to voluntarily enfranchise from 1952 to 1985.
"Enfranchisement is not and was never a right," wrote Barin.
"It was rather an oppressive process that stripped away the status of Indians. If there is a grain of a concept of a right that can somehow be inversely extracted from a process such as enfranchisement, it is the right for an Indian to preserve his or her status."
Decision could affect hundreds
The process of enfranchisement began in 1857 under the Gradual Civilization Act, and continued under the Indian Act of 1876 as an assimilation policy into Canadian society. Enfranchisement meant First Nations individuals lost their treaty rights and Indian status. Enfranchisement was often involuntary, such as when First Nations people obtained a university degree or when First Nations women married non-First Nations men.
From 1876 to 1985, individuals could submit an application to be voluntarily enfranchised by showing they were "capable of assuming the duties and responsibilities of citizenship." Bill C-31 in 1985 removed both voluntary and involuntary enfranchisement provisions.
While Barin's decision solely orders the Indian Registrar to amend Margaret Hele's file to state she did not voluntarily enfranchise, making her granddaughter eligible for status, lawyer Nicholas Dodd hopes it will have wider implications.
"[Bill] S-3 changed the status of those who were involuntarily enfranchised. There's been a lot of questions about people who voluntarily enfranchised because their ancestors have not gotten that same improved treatment, so it will be interesting if we can continue to chip away at that policy," said Dodd, a lawyer with the Montreal-based firm Dionne Schulz.
"The upshot of the decision is any woman who voluntarily enfranchised between 1951 and 1985 — that is undone. We're not talking about thousands of people that voluntarily enfranchised — it was never a hugely popular thing — but it would affect hundreds of people."
Canada has until the end of September to appeal the decision. Crown-Indigenous Relations and Northern Affairs Canada has not yet responded to a request for comment.