Many people contact me asking for help regarding their Indian status registration process. I cannot do this. First, there is no way I can process the number of requests I receive. Second, I am not a member of an organization that does this kind of paid work. Nor am I a lawyer. In my Charter challenge I was an overburdened client. I can however provide some insight. As many know in 2018 the Indian Act underwent changes due to both the Descheneaux/Yantha/Yantha court decision and the Gehl court decision.
The 2016 Descheneaux/Yantha/Yantha decision had to do with issues of cousins and siblings registered differently depending on male/female ancestral lines. For birth post 1951 this issue has now been addressed. The 2017 Gehl decision had to do with the issue of unknown/unstated paternity where it was determined that INAC can no longer assume unknown/unstated fathers are non-Indian. Rather, INAC has to be reasonable and look at credible evidence that surrounds the child’s birth. Here are the Gehl clauses:
Unknown or Unstated Parentage
(6) If a parent, grandparent or other ancestor of a person in respect of whom an application is made is unknown — or is unstated on a birth certificate that, if the parent, grandparent or other ancestor were named on it, would help to establish the person’s entitlement to be registered — the Registrar shall, without being required to establish the identity of that parent, grandparent or other ancestor, determine, after considering all of the relevant evidence, whether that parent, grandparent or other ancestor is, was or would have been entitled to be registered. In making the determination, the Registrar shall rely on any credible evidence that is presented by the applicant in support of the application or that the Registrar otherwise has knowledge of and shall draw from it every reasonable inference in favour of the person in respect of whom the application is made.
No Presumption
(7) For greater certainty, if the identity of a parent, grandparent or other ancestor of an applicant is unknown or unstated on a birth certificate, there is no presumption that this parent, grandparent or other ancestor is not, was not or would not have been entitled to be registered.
I interpret these clauses to mean INAC does not have the right to make the assumption that an unknown or unstated father is non-Indian.
Some people ask me, “what was the relevant/credible evidence associated with my application?” The relevant/credible evidence presented in my request for Indian status registration and that the Court of Appeal for Ontario cited was:
Again, these policy directives clearly outline that the Registrar does not have the power to deem non-Indian paternity. It is stated, “the power of the Registrar to deem non-Indian paternity was not carried over in the 1985 Indian Act amendments” (INAC 2011 Memorandum). This policy is in line with the Gehl clauses.
Disturbingly the policy also states, “We will not be taking any action to seek out and then investigate or rectify past decisions at this time” (INAC 2011 Memorandum). What this means is INAC had no intention of re-opening closed pre 2011 files to reconsider applicants who had been denied Indian status registration through INAC’s 1985 proof of paternity policy rules that insists fathers are named, and where they are not named the assumption is the father is a non-Indian. This includes situations when an ancestor with an unknown or unstated paternity, born before 1985, is in an applicant’s history. In other words INAC had applied the assumption of non-Indian paternity to new births after 1985, as well as applied it to past births even though they did not have the power to do so.
Of course the presence of this policy means that I was forced to endure unnecessary litigation.
In summary, the only advice I can offer is that if you were previously denied Indian status registration you should ask INAC to reassess your file under the new changes, providing the necessary relevant/credible evidence and documents. One reason I cannot offer any concrete advice is that the bottom line is that you need to re-contact INAC and ask them if the new changes apply to your situation. Ultimately, only INAC has the ability to determine the exact outcome.
Miigwetch for understanding my position.
The 2016 Descheneaux/Yantha/Yantha decision had to do with issues of cousins and siblings registered differently depending on male/female ancestral lines. For birth post 1951 this issue has now been addressed. The 2017 Gehl decision had to do with the issue of unknown/unstated paternity where it was determined that INAC can no longer assume unknown/unstated fathers are non-Indian. Rather, INAC has to be reasonable and look at credible evidence that surrounds the child’s birth. Here are the Gehl clauses:
Unknown or Unstated Parentage
(6) If a parent, grandparent or other ancestor of a person in respect of whom an application is made is unknown — or is unstated on a birth certificate that, if the parent, grandparent or other ancestor were named on it, would help to establish the person’s entitlement to be registered — the Registrar shall, without being required to establish the identity of that parent, grandparent or other ancestor, determine, after considering all of the relevant evidence, whether that parent, grandparent or other ancestor is, was or would have been entitled to be registered. In making the determination, the Registrar shall rely on any credible evidence that is presented by the applicant in support of the application or that the Registrar otherwise has knowledge of and shall draw from it every reasonable inference in favour of the person in respect of whom the application is made.
No Presumption
(7) For greater certainty, if the identity of a parent, grandparent or other ancestor of an applicant is unknown or unstated on a birth certificate, there is no presumption that this parent, grandparent or other ancestor is not, was not or would not have been entitled to be registered.
I interpret these clauses to mean INAC does not have the right to make the assumption that an unknown or unstated father is non-Indian.
Some people ask me, “what was the relevant/credible evidence associated with my application?” The relevant/credible evidence presented in my request for Indian status registration and that the Court of Appeal for Ontario cited was:
- My great grandparents lived in the Golden Lake Reserve community
- My grandmother lived in the Golden Lake Reserve community
- My father was born in the Golden Lake Reserve community as was recorded on his registration of birth
- My father was accepted by the Golden Lake Reserve community
- My father lived in the Golden Lake Reserve community
- My father’s godfather was a prominent Elder from the Golden Lake Reserve community
- There is no evidence that he was excluded from the Golden Lake Reserve community
Again, these policy directives clearly outline that the Registrar does not have the power to deem non-Indian paternity. It is stated, “the power of the Registrar to deem non-Indian paternity was not carried over in the 1985 Indian Act amendments” (INAC 2011 Memorandum). This policy is in line with the Gehl clauses.
Disturbingly the policy also states, “We will not be taking any action to seek out and then investigate or rectify past decisions at this time” (INAC 2011 Memorandum). What this means is INAC had no intention of re-opening closed pre 2011 files to reconsider applicants who had been denied Indian status registration through INAC’s 1985 proof of paternity policy rules that insists fathers are named, and where they are not named the assumption is the father is a non-Indian. This includes situations when an ancestor with an unknown or unstated paternity, born before 1985, is in an applicant’s history. In other words INAC had applied the assumption of non-Indian paternity to new births after 1985, as well as applied it to past births even though they did not have the power to do so.
Of course the presence of this policy means that I was forced to endure unnecessary litigation.
In summary, the only advice I can offer is that if you were previously denied Indian status registration you should ask INAC to reassess your file under the new changes, providing the necessary relevant/credible evidence and documents. One reason I cannot offer any concrete advice is that the bottom line is that you need to re-contact INAC and ask them if the new changes apply to your situation. Ultimately, only INAC has the ability to determine the exact outcome.
Miigwetch for understanding my position.
© Lynn Gehl, Ph.D. is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. In 2017 she won an Ontario Court of Appeal case on sex discrimination in The Indian Act, and is an outspoken critic of the Algonquin land claims process. Recently she published Claiming Anishinaabe: Decolonizing the Human Spirit. You can reach her through, and see more of her work, at www.lynngehl.com.
