ABORIGINAL ISSUES/FEMINISM/CANADIAN POLITICS:

SHARON MCIVOR VERSUS THE INDIAN ACT:

With over 24 years of legal struggle Sharon McIvor has been challenging the provisions of Canada's Indian Act that discriminate against women. Here is the latest news of her victory in the BC Court of Appeal. As the following article from the Canadian Union of Public Employees (CUPE) makes plain the fight is not yet over, given the mindset of the present federal Conservative government.

############

Sharon McIvor's fight against the Indian Act's gender discrimination isn't over yet:
BC's Court of Appeal ruled April 9 – in Sharon McIvor's favour – that the Indian Act still discriminated against women by denying Indian status to the grandchildren of Aboriginal women, but not those of Aboriginal men.

Sharon McIvor was a law student when she first challenged the act. That was in 1985. The Merritt BC woman is a grandmother now.

The Indian Act McIvor first challenged in 1985 had itself been the subject of a court challenge because it stripped women of their Indian status if they married non Aboriginal men.

Meanwhile, non-Aboriginal women who married men with Indian status got status themselves.

McIvor's grandmothers were both Indians, but their husbands were not.

So when the federal government changed the Indian Act to comply with a 1983 Supreme Court ruling that Indian women who married non-Indian men should maintain their status, McIvor applied for Indian status.

The letter she got back from the Department of Indian and Northern Affairs offered her Indian status, but not her children.

Two years later, her internal appeals exhausted, McIvor took the case to court.
It took 17 years to get in front of a judge.

In June 2007, two years after the first hearing, BC Supreme Court Justice Carol Ross sided with McIvor, arguing the law implied that "one's female ancestors are deficient or less Indian than their male contemporaries. The implication is that one's lineage is inferior."

The federal government appealed Ross's ruling, but lost. The government has 60 days to file an appeal with the Supreme Court of Canada.

If - as expected - the Harper government appeals the decision, McIvor's quest for justice will take another three years and at least $250,000.

McIvor has got this far in part because of the Court Challenges Program. The Harper government - which seems to have no difficulty finding money for its costs - cancelled the program in 2006.

To lend your support to McIvor's efforts, visit the Support for Sharon McIvor's Court Action group on Facebook.

############

This court case is important even beyond the situation of treaty rights. The legal question involved is whether descent through the maternal line is at least of equal importance compared to decent through the male line. many societies actually recognize only descent through the female line. The Jewish religion is the most prominent of these, but there are numerous other matrilinear societies besides this example. In terms of Canada it is of importance that this legal barrier against women be abolished. Here is more news on this case from the Support Sharon McIvor's Court Action site on Facebook.

############

Support for Sharon McIvor's Court Action:

Description:
Canada's Indian Act discriminates against Indigenous women and their children. Sharon McIvor has fought this in the courts since 1989. She has won a major victory in the BC Supreme Court but this decision will be challenged by the Government of Canada all the way to the Supreme Court of Canada. The reason for this group is to raise the profile of this case and build support for Sharon McIvor's struggle on behalf of all Indigenous Women in this country. Learn more about the case in the "Vancouver Sun" article posted below.
Contact Info
Email:

ravensroot@northwestel.net
Location:
Whitehorse, YT
Recent News
The long, hard road of Sharon McIvor

She has fought for two decades for her and her children's rights under the Indian Act. Despite a court victory, her fight isn't over yet

Daphne Bramham

Vancouver Sun

Friday, November 09, 2007

The Native Women's Association of Canada and several B.C. women's groups describe it as one of the most important equality rights cases in Canada, affecting an estimated 300,000 people who were improperly denied Indian status.

It began in 1985 when Sharon McIvor was a law student. She had no idea that her battle to reclaim her birthright and that of her descendants would drag on well into the first decade of the 21st century, or that it would likely end up in the Supreme Court of Canada.

A descendant of Lower Nicola Valley band members, McIvor applied within months of 1985 amendments to the Indian Act to be registered as a status Indian along with her children.

Both McIvor's grandmothers were Indians, but her grandfathers were not.

The amendments were ostensibly supposed to remedy the gender inequity of stripping Indian status from women and denying it to their children if they married non-Indian men. Men who married non-Indians not only retained their status, but their wives and children were registered as status Indians.

But the amendments simply put off the gender discrimination by a generation. Women who married non-Indians and their children got status, but the women's grandchildren did not, while the grandchildren of Indian men and non-Indian women did.

Sixteen months after that first letter, McIvor received a reply from the government. She could be registered as a status Indian, but her children could not.

On May 29, 1987, McIvor wrote another letter asking that the decision be reviewed. It took 21 months for a response. In February 1989, she was told that the initial decision had been upheld.

McIvor launched her court challenge that year, but her case wasn't heard until October 2006, 17 years later.

B.C. Supreme Court Justice Carol Ross agreed with what McIvor has been saying all these years -- the 1985 Indian Act's section that determines who is given Indian status contravenes the Charter of Rights and Freedoms as well as international conventions on human rights, women's rights and children's rights.

In June 2007, Justice Ross declared the section "of no force and effect" because it "authorizes the differential treatment of Indian men and Indian women born before April 17, 1985, and matrilineal and patrilineal descendants born before April 17, 1985."

In a sharply worded, 144-page judgment, she said that by drawing a distinction between male and female ancestors in determining who can be registered as a status Indian, the section offends the basic notion of human dignity.

The judge wrote that the section implies that "one's female ancestors are deficient or less Indian than their male contemporaries. The implication is that one's lineage is inferior. The implication for an Indian woman is that she is inferior, less worthy of recognition."

Because the government had used every tactic possible to delay the case getting into court for 17 years, Ross refused its request to have two years to find a remedy.

It was a sweeping victory. The favourable decision stunned McIvor, who is now a 59-year-old grandmother, practising law part-time in Merritt and teaching law, indigenous studies and political science at the Nicola Valley Institute of Technology.

"I actually didn't trust that we would get a good decision," she said this week. "I've acted as counsel in other cases, similar kinds of cases involving women's equality and I haven't had any good decisions . . . . It's just so totally unbelievable that we won."

But it was only the first round. The government has vowed to appeal.

Set aside just how offensive it is to any reasonable person's expectation of a speedy hearing that it took so long for McIvor's case to be heard.

What is so depressingly evident throughout the 144-page judgment is just how badly we have mistreated -- and continue to mistreat -- aboriginal women and their children. It started when the colonial government lumped all aboriginal people together and misnamed them Indians.

In its determination to "civilize" aboriginal people, the Indian Act of 1850 imposed and entrenched a strictly patriarchal system. Even though many first nations were matriarchal societies, the "civilizers" stripped aboriginal women of their equality and property rights and overturned centuries-old hereditary systems.

The 1857 Act to Encourage the Gradual Civilization of Indian Tribes that "enfranchised" men over 21 who met specific criteria, not only stripped them of their Indian status, but that of their wives and children as well.

The 1869 Indian Act went further. It is the great-great-grandfather of the discriminatory system that was continued into the current act. Women who married non-Indians lost their Indian status. Women who married outside their own tribe were stripped of their band status, which meant if the marriage failed they could not return home.

All of the subsequent revisions and amendments to the Indian Act have failed to correct those inequities.

They have continued even though the Canadian Bill of Rights was passed in 1960; and even though in 1982 the United Nations Committee on Human Rights found Canada was in violation of the International Covenant on Civil and Political Rights for effectively denying Indian women access to their culture, religion and language.

"It seems to me," Ross wrote, "that it is one of our most basic expectations that we will acquire the cultural identity of our parents; and that as parents, we will transmit our cultural identity to our children."

It was the judge's empathy for and understanding of what it must be like to be excluded as McIvor and her children were from their culture that most impressed McIvor.

"It was lonely and painful to be excluded from the Indian community," McIvor said when she testified. "My family and I suffered various forms of hurt and stigmatization because we did not have status cards.

"They were excluded from the traditional hunting, gathering and fishing as well as from traditional marriage, funeral and healing ceremonies.

They were not allowed to live on reserve land or go to Indian schools and they did not qualify for health and dental benefits or free post-secondary education.

On Oct. 16, 2006 -- the day McIvor's case finally went to court -- the government suddenly found a reason to recognize her son, Jacob Grismer, as a status Indian.

He was "ecstatic" to finally be recognized for what he is, McIvor said, even though the official documents didn't arrive until this past August.

McIvor started this fight for herself and her children. They now all have Indian status. But McIvor vows to continue the fight in the appeals courts for her grandchildren, aged 16 and 14, who do not have status and were not even born when this battle began.

Aside from the personal toll of having to lay bare one's entire life before bureaucrats, lawyers and judges over a period of more than 20 years, this case has cost McIvor tens of thousands of dollars in legal expenses. And it's not over.

It's almost certain to go to the Supreme Court of Canada, which will take at least three years and a minimum of a quarter of a million dollars.

Time and money are no problem for the government. It has deep pockets; McIvor does not.

"It would be horrible to lose because I can't mount a defence," she says.

McIvor estimates that legal costs for the B.C. Court of Appeal will be about $120,000 and that's only because she is doing some of the legal work herself and her lawyers, Robert Grant and Gwen Brodsky, aren't charging her anywhere near their usual fees.

It will cost at least that much to prepare for a hearing at the Supreme Court of Canada. Canada's court challenges program has covered a portion of McIvor's costs so far. But the Conservative government eliminated that program last year(With far less of the publicity that such a change should have generated-Molly).

It's added another burden and further insult to McIvor, who is fighting not only for her family, but for thousands of others like her.

dbramham@png.canwest.com

Sharon McIvor fund

The Supreme Court of B.C. decision is available at:

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/08/2007BCSC0827.htm.

The Native Women's Association of Canada and Vancouver Rape Relief and Women's Shelter are sponsoring a reception on Wednesday between 7 and 9 p.m. at Heritage Hall, 3102 Main Street, to honour Sharon McIvor and help raise money for her legal costs.

For information on how to donate to the fund, contact

mcivorfund@rapereliefshelter.bc.ca.

Cheques to support Sharon McIvor’s case can be written to:

“Vancouver Foundation - McIvor Case Fund”

Tax receipts will be issued.

If you are mailing a cheque, it can be sent to:

Kathie Bell

Manager, Named Funds

Vancity Community Foundation

510 - 815 West Hastings Street

Vancouver, BC

V6C 1B4

############

MOLLY NOTE:

This cause is obviously "on the side of the angels". What strikes me, however, most prominently is the almost quarter century that the case has taken to wind its way through the courts. This alone is atrocious, and is a condemnation of our present system of "justice". Surely !!!! there are better ways, and anarchists have often advocated them. No "council of reconciliation" would take even 1% of the time to render a decision in such a case.