'Old wounds': Descendants of families who lost Indian status launch Charter challenge

In 1944, Nadia Salmaniw's great-grandfather Wilfred Laurier Bennett faced a choice: send his children to residential school or renounce his Indigenous heritage.

Knowing first-hand the cruelties of the mandatory boarding school system, Bennett chose to give up his First Nation status.

Now, Salmaniw is trying to reclaim her status — which was stripped from Bennett, her great-grandmother and all of their descendants. 

"He made, I believe, a forced decision to protect his children because he himself had been forced into residential school and knew of the atrocities and horrors that his children would have endured if they had gone," Salmaniw said.

Salmaniw is one of 16 plaintiffs from three families who filed a constitutional challenge last month in the Supreme Court of British Columbia to end the discrimination based on gender and the process of "enfranchisement" that families continue to endure under the registration provisions of the Indian Act.

Enfranchisement was a process through which First Nations people could obtain Canadian citizenship. By renouncing their Indian status and treaty rights, they obtained the right to vote, own property and keep their children out of residential schools.

The act was considered voluntary by the federal government. The plaintiffs argue their families were coerced into enfranchisement. 

'Ultimate act of colonization'

The enfranchisement policy was adopted in 1857 under the Gradual Civilization Act in the Province of Canada and continued after Confederation under the Indian Act of 1876.

Enfranchisement remained in place until amendments were made to the Indian Act in 1985 to bring it in line with the Canadian Charter of Rights and Freedoms.

The plaintiffs argue that the consequences of that defunct policy violate their rights to liberty and security under the charter.

Even though Salmaniw has Haida citizenship under the laws of the Haida Nation and is a citizen of the Central Council of the Tlingit and Haida Tribes of Alaska, she continues to be denied Indian status because of the Indian Act's registration provisions. 

"To receive a rejection letter saying that you're not Indigenous when you know that's part of who you are is deeply, deeply impactful," Salmaniw said.

"I believe that just opened up the old wounds and continued to reinforce the harm that was inflicted on my great-grandfather at the time of residential school ... What an ultimate act of colonization."

'Plain as day' sex-based discrimination

The court challenge is also taking aim at what the plaintiffs say is a lingering element of sexual discrimination in status law. Under the old Indian Act, when a status Indian woman married, she lost the right to decide what happened to her status.

If she married a non-status man, she automatically lost her status. If she married a status Indian man and her husband was enfranchised, she and any unmarried children were automatically stripped of their Indian status as well. 

Ottawa gradually allowed women and their descendants to regain status lost by marriage through a series of legislative changes — the latest coming in 2017 with Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada.

But the descendants of women who lost status because their status Indian husbands were enfranchised are still barred from reclaiming status.

"It's plain as day that that's sex-based discrimination," said Vancouver-based lawyer Ryan Beaton from the firm Juristes Power.

"It's being imposed on descendants today in the same way it was imposed on the other category of descendants. It's hard to understand why Canada has not yet decided to address this issue."

The federal government has not yet filed a response to the constitutional challenge in court.

But in a media statement, the office of Indigenous Services Minister Marc Miller wrote that it was working with First Nations partners, including the Native Women's Association of Canada and the Assembly of First Nations, on further legislative changes.

"We are aware of the challenge and recognize that residual impacts from years of sex-based inequities continue to be felt in the registration context today, despite the elimination of sex-based inequities in the registration provisions," the statement said.

"Additionally, we are committed to continue to work with First Nations to address the non sex-based inequities that still remain in the Indian Act today."

Indigenous Services Canada is also implementing a 2020 decision by the Superior Court of Quebec, which found a woman could not be voluntarily enfranchised under the 1952 Indian Act.

Ottawa claims it eliminated all known sex-based inequities in the Indian Act's registration, but Beaton insists that several thousand family members could be affected by this case.

Reclaiming Indigenous heritage

As someone who grew up knowing she was Indigenous and that her grandfather had been enfranchised, Kathryn Fournier said she felt like she'd been stranded "between two worlds."

Fournier's grandparents were residential school survivors from Manitoba. That's not why her grandfather Maurice Sanderson applied for enfranchisement in 1922, however; Fournier said he wanted the right to vote and own property, which was forbidden under the Indian Act.

"He made a very difficult choice that shouldn't have been imposed on him in the first place," she said. "I don't in any way judge him for that." 

When the law changed in 1985, Fournier and her mom were able to regain status, but her three children could not because of existing registration provisions.

The Indian Act contains different levels of status. Since her mother came from enfranchised parents, her status could only be passed onto her children, not her grandchildren.

"One of the things that I'd always hoped for is that my own children would be able to also claim their Indigenous identity and their Indigenous heritage in a formal, recognized way," Fournier said.

Fournier worked at the department of Indian and Northern Affairs Canada for more than 20 years.

"It was a challenge working there knowing that the enfranchisement that my family had gone through was one of the perhaps more egregious things that the Indian Act had done and that there was no recognition of that within the department," Fournier said.

"But I think, as most of the Indigenous public servants who worked there, we tried to focus on what could be changed."

The plaintiffs are not seeking damages. They say their preference is to negotiate ways to resolve the issue instead of having it litigated.

"We are going back to becoming what the government tried to make us not be anymore," Fournier said

"I think that's the important part, and that sense of belonging and being able to say officially and quite formally, 'This is who I am.'"