Righting a wrong, reclaiming identity

In 1922, Kathryn Fournier’s grandfather wanted to vote in an election. But as a First Nations man, he had to give up his Indian Status and treaty rights in order to vote or own property. Now, 100 years later, Fournier is helping to force the government to right that historical wrong and clear the way for descendants of Indigenous people who enfranchised to claim their status.

Fournier, who is a member of the diocesan All My Relations Circle, told Crosstalk that this effort began in 2020 when she read a news story about a case a man brought to a Quebec court over enfranchisement. 

Having worked in the federal department of Indigenous and Northern Affairs Canada (now split into Indigenous Services and Crown-Indigenous Relations) for 20 years, Fournier knew that many people were able to claim their status after a 1985 amendment to The Indian Act (1876) that meant that Indian status could no longer be gained or lost through marriage. 

Previously, The Indian Act dictated that an Indigenous woman marrying a non-status man would lose her status (as would her descendants) while a woman marrying an Indigenous man could gain Indian status even if she was entirely non-Indigenous, which was gender-based discrimination. 

First Nations people finally got the right to vote in federal elections without losing their Indian status and treaty rights in 1960. Enfranchisement was also included in the 1985 amendment to align the Indian Act with the Canadian Charter of Rights and Freedoms, but descendants of women who lost their status because they were married to men who lost their status because they enfranchised were still not eligible to reclaim status. 

Fournier contacted the Montreal lawyer mentioned in the news article. He said her case was different from the one she read about but referred her to Vancouver lawyer Ryan Beaton of Juristes Power, who was working on a case similar to her family’s history.

“My grandparents were both Status Indians in their own right,” Fournier explains. “My grandmother, on marrying my grandfather, went off her status number and went on his status number because that’s the way The Indian Act worked, so when an Indian wanted to become enfranchised, and by that, they meant a man, automatically his wife was enfranchised, and their children were enfranchised. … My aunts and uncles all had status numbers too, so they all lost their status too. My mother wasn’t born yet, so she never had status as a child of enfranchised Indians. But when she married my dad, who was Francophone, she would have lost her status anyway [in 1950]. But if she had lost her that way, she could have got it back and passed it down to her grandchildren in a way that she can’t as the daughter of enfranchised Indians.” 

Fournier’s family history illustrates the complicated twists of the rules.

“Because of the changes that they made [in 1985] to the Indian Act for marrying out, if my grandmother who was a Status Indian in her own right would have married a non-Indigenous man, if I can put it this way, a white guy, and lost her status, technically that would have made my mother less … Indian because her dad would have been white… but she would have been able to pass her status on to her grandchildren. But as the daughter of two Status Indians, she could pass her status only to her children, which is me and my siblings but not to our children, and that was because of the way the status was lost, i.e., enfranchisement. So that’s our court case.”

Beaton was already working with a B.C. family whose great-grandfather had enfranchised so that he could protect his children from being forced to attend residential school. With funding from the Canadian Court Challenges Program, which supports individuals and groups bringing cases of national significance related to constitutional and human rights before the courts, he put together the case for three families, including Fournier’s.

He contacted the department of Indigenous Services, offering to negotiate a resolution rather than going to court. Department officials responded that they would consider the issue and get back to him. Delays were attributed to the pandemic, but after waiting about a year, Beaton finally filed the constitutional challenge with the Supreme Court of British Columbia.

In March, Minister of Indigenous Services Canada Patty Hajdu promised to work with the plaintiffs and to introduce legislation by this summer that would enable families who lost status through enfranchisement to restore it.

Fournier is watching for the legislation to be introduced and passed, but when it is, she is pleased that her children will be able to claim their status and that this change to The Indian Act may help many other people. As the story was reported in the media, she says many people contacted her to say their families had also been affected by the enfranchisement rules. 

“It remains a living issue and part of the reason it remains a living issue is because it has affected people as it has cascaded down,” she said.  

“As they changed those laws in 1985, they thought maybe there would be a few women who would come forward, wanting to get their status back. Well, they were just bombarded with thousands of women, and every time they made a change to the Indian Act that allows more people to claim status, they vastly under-estimate the number of people who want to do that. I think we’ll find the same thing with enfranchisement. 

“To me, certainly, in part, it is a gesture of sovereignty, of identity, of affirmation, and even of resistance.”

Fournier adds that this change will help to right a historic wrong. 

“They have vastly misunderstood the depth of Indigenous identity and the true meaning of cultural cohesion and connection. And so, more and more people are going to be making that affirmation. 

Despite what people think, getting Indian status doesn’t give you a whole lot of benefits, and there are very few that would accrue to my children, but it’s that sense of identity, and that 100 years after they tried to make my grandparents stop being Indians, their grandchildren and great-grandchildren … are saying, in actual fact, this is an identity of which we are proud.”