Sex Discrimination in the Indian Act Continues: Protecting Mothers of Indigenous Nations (the basis of my section 15 Charter challenge)
By Lynn Gehl,Ph.D.
When the Indian Act was amended in 1985, the government of Canada removed provisions that once protected children of unknown or unstated paternity. The Indian Act is now silent on the issue. Although the Indian Act is silent, Aborignal Affairs and Northern Develpment Canada (AANDC) has developed an internal policy that they rely on when applicants for status have an unknown or unstated paternity in their linage.
Since 1985, status Indians are registered under either section 6(1) status or section 6(2) status. Many people understand these two sections as “full status” and “half-status” respectively. Section 6(1) status is considered to be full status because it allows a parent to pass on Indian status to their children in their own right, while section 6(2) which is considered half status does not. This means a 6(2) status parent must parent with another status Indian, either a 6(1) or 6(2), to pass on status registration. Appreciating this is necessary in understanding the discrimination that children or grandchildren with an unknown or unstated paternity in their lineage are faced with.
Due to the policy that AANDC has developed, today, when a child is born and for some reason the father is unable to sign or does not sign the birth certificate, the Registrar of AANDC applies a negative assumption of paternity – meaning the Registrar assumes the child’s father is a non-Indian person. As a result of this negative assumption, when the mother is registered under section 6(1) status the child is only registered under section 6(2) status. While this child is entitled to status registration, when the mother is registered under section 6(2) status the child is deemed a non-status person. In sum, there are two scenarios that result from this negative assumption of paternity. Scenario One: A child born to a section 6(1) status mother and a status father, either 6(1) or 6(2), who does not sign the birth certificate, is only registered under section 6(2) status. Scenario Two: A child born to a section 6(2) status mother and a status father, either 6(1) or 6(2), who does not sign the birth certificate, is a non-status person. See the diagram below.
Since 1985, status Indians are registered under either section 6(1) status or section 6(2) status. Many people understand these two sections as “full status” and “half-status” respectively. Section 6(1) status is considered to be full status because it allows a parent to pass on Indian status to their children in their own right, while section 6(2) which is considered half status does not. This means a 6(2) status parent must parent with another status Indian, either a 6(1) or 6(2), to pass on status registration. Appreciating this is necessary in understanding the discrimination that children or grandchildren with an unknown or unstated paternity in their lineage are faced with.
Due to the policy that AANDC has developed, today, when a child is born and for some reason the father is unable to sign or does not sign the birth certificate, the Registrar of AANDC applies a negative assumption of paternity – meaning the Registrar assumes the child’s father is a non-Indian person. As a result of this negative assumption, when the mother is registered under section 6(1) status the child is only registered under section 6(2) status. While this child is entitled to status registration, when the mother is registered under section 6(2) status the child is deemed a non-status person. In sum, there are two scenarios that result from this negative assumption of paternity. Scenario One: A child born to a section 6(1) status mother and a status father, either 6(1) or 6(2), who does not sign the birth certificate, is only registered under section 6(2) status. Scenario Two: A child born to a section 6(2) status mother and a status father, either 6(1) or 6(2), who does not sign the birth certificate, is a non-status person. See the diagram below.
Statistics reported for the years 1985 to 2004 show a disturbing trend in terms of age for section 6(1) mothers: 12% of children born to mothers aged 30-34 were of unknown and unstated paternity whereas 45% of children born to mothers under the age of 15 years were of unknown and unstated paternity (Mann, Disproportionate & Unjustifiable). These numbers likely apply to section 6(2) mothers.
Young mothers of Indigenous Nations are the new target of AANDC's desire to eliminate status Indians. Young mothers and their children are in need of their status registration and protection of their treaty benefits – in particular their health care and education benefits. These young mothers of Indigenous Nations and their children should not bare the brunt of the government of Canada’s desire to eliminate status Indians. Lastly it should be known that, this negative assumption of paternity applies equally to situations where the parents are married or not and occurs when the father, for whatever reason, does not sign the child’s birth certificate.
For addition information see the menu on the left - My National Strategy: Unknown / Unstated Paternity & the Indian Act.
