The implications of the Lavell case
October 1972

Sections 5 to 16 of the Indian Act deal with the "Definition and Registration of Indians". The sections provide that everyone on the band lists created after the Indian Act amendments of 1951 are registered Indians (unless they have lost status since that time). The sections provide that when a status Indian woman marries a non-status man, the woman loses her Indian status. When a status Indian man marries a non-status woman, the Indian man does not lose his status and his wife become a status Indian. The result of these provisions is that every family will be a "single status" family. The husband, wife and children will either all have Indian status or will all be non-status. There are a few situations where a family unit will be "mixed status":
  • if an Indian woman has an illegitimate child by a non-Indian man the registration of the child can be protested under section 12 (2) of the Indian Act. If the protest is successful the mother will have Indian status and the child will not.

  • if an Indian woman with children of Indian status marries a non-Indian, the children do not automatically lose status. The Minister may enfranchise the children under section 109 (2) of the Indian Act, but the present policy of the Department of Indian Affairs is that this will not be done without the consent of the mother and, if the child is over 16, the consent of the child as well.Therefore, both parents can be non-status while the children of the woman born before the marriage have Indian status.

    if a child with Indian status is adopted by a non-Indian couple, the child continues to have status. If a non-Indian child is adopted by an Indian couple, the child does not gain Indian status. In both these situations adoption results in a "mixed status". These three "mixed status" family situations all represent special problems relating to children. A husband cannot have a different status that his wife. Except for the three situations outlined all families will be "single status" families.
The basic problem with "mixed status" families is the question of the relationship of non-status members of the family to the reserve community. The non-status members of the family have no right to live on the reserve. Non-status children of the status parents have to leave the reserve on maturity.

The Lavell and Bedard Cases

Jeanette Corbiere Lavell married a non-Indian, by whom she now has a child. The Registrar struck her name from the Indian register on the grounds that, as she married a non-Indian, she was no longer entitled to Indian status. She appealed the decision of the Registrar. Judge Crossber of the Ontario County Court rejected the appeal and a further appeal was taken to the Federal Court of Appeal. On that appeal Mr. Justice Thurlow ruled that the section depriving Jeanette Lavell of status upon marriage was discriminatory on the basis of sex because an Indian male did not lose status on marriage to a non-Indian woman. Section 12(1)(b) was held to be inconsistent with the Canadian Bi11 of Rights.

Yvonne Bedard lost Indian status upon marriage. After separating from her husband she returned to the reserve with two children of the marriage. At first she was permitted to reside on the reserve by the Band Council. Later they ruled that she and her children must leave. Mrs. Bedard obtained an injunction from Mr. Justice Osler of the Ontario High Court prohibiting her expulsion. The court relied on the decision in the Lavell case. The Supreme Court of Canada has granted leave to appeal in both cases and it is expected that the appeals will be beard together in March of 1973.

The History of the Issue

There have been very few references to the specific issue raised in the Lavell and Bedard cases. A government policy decision of April 8, 1960 recognized that certain women who had lost status by marriage to non-Indians did return to the reserves upon the death of their husbands or upon serious illness. Up to that point, government policies and regulations did not permit welfare and educational assistance to be given to these women or their children. The decision in 1960 was to extend welfare and educational assistance to these families "as though they had Indian status".

The specific issue was not raised during the proceedings of the House of Commons Special Committee on Human Rights and Fundamental Freedoms which studied the Bill of Rights in 1960. Indeed, in those hearings, there were only superficial references to the Indian Act. In 1968, the Department of Indian Affairs published a booklet called "Choosing a Path" to guide Indian people on the questions to be discussed in the Indian Act consultation meetings of 1968 and 1969. The fifth question to be discussed read as follows:

Should an Indian woman marrying a non-Indian take the status of her husband? Should each retain their own status as it was before they married? Should a non-Indian woman who marries an Indian, gain Indian status?

The Royal Commission on the Status of Women made the following recommendation in 1970:
...that the Indian Act be amended to allow an Indian woman upon marriage to a non-Indian to (a) retain her Indian status and (b) transmit her Indian status to her children.


The implications of the lavell case

If the Supreme Court of Canada upholds Jeanette Lavell’s claim, what are the implications?

(a) How many women are affected?

All Indian women who lost status because of marriage since the Bill of Rights was enacted in 1960 would regain their Indian status. It is very unlikely that women who lost status by marriage before 1960 would regain status. Children who were enfranchised by the Minister because of their mothers’ marriage would also be reinstated as members.

(b) What would be the status of the non-Indian woman or man who marries an Indian?

If the Supreme Court rules that both an Indian man and an Indian woman retain their status when they marry a non-Indian, the rules for the status of the non-Indian spouse will also have to be made uniform. Either the non-Indian wife and non-Indian husband must both gain Indian status on marriage to an Indian or both remain non-status. It is likely that the Courts would hold section 11(1)(f) of the Indian Act inoperative, with the result that non-Indian women would no longer gain Indian status when they married an Indian man. Therefore all women who gained Indian status by marriage since 1960 may lose status.

The result would be Indian women regaining their lost status and non-Indian women losing the Indian status they gained on marriage. All these marriages would be "mixed status" marriages. One partner would have Indian status; the other would not.

(c) What would be the status of children of "mixed status" marriages?

The male person is central in the provisions of the present Indian Act. All members of the family will normally have the status of the husband. If the courts rule that the wife’s status cannot be determined by the status of the husband they must also rule that the children’s status cannot be determined by the status of their father. The term "male" would likely be struck out of section 11 (1) (c) by the courts so that the direct descendant of a status Indian would have status. That means that all the children of "mixed status" marriage would have Indian status.

(d) Could these new "mixed status" couples and their children reside on the reserve?

The members of the family who had Indian status could, of course, live on the reserve. Could the non-status partner also live on the reserve? The non-status partners could visit, but section 28(1) of the Indian Act prohibits any arrangement whereby a non-member occupies, uses or resides on a reserve. Section 28(2) provides a method for permitting a non-member to be on the reserve, involving permission of the Minister and, if the residency is for more than one year, consent of the Band Council. So an arrangement could be made for the whole family to live on the reserve.

In practice the Department of Indian Affairs has taken the position that enforcing the trespass section of the Indian Act is up to the Band Council. On many reserves enforcement is lax and a non-status spouse could probably live on the reserve without the legal formality of a permit under section 28(2).

Conclusions

If the Lavell case is upheld the logical results will be as follows:
  1. All Indian women who lost status by marriage since 1960 will regain Indian status.

  2. Children of these women who were born before the marriage and who had Indian status and lost it as a result of the mother’s marriage will regain Indian status.

  3. All non-Indian women who gained status by marriage since 1960 may lose Indian status.

  4. All children of a marriage between an Indian and a non-Indian may have Indian status.

  5. A mixed status family will only be able to live on the reserve legally with the permission of the band, either because the band does not enforce the trespass section against the non-status spouse, or the band agrees to a permit under section 28(2).
Are other sections of the Indian Act threatened by the Bill of Rights?

In the Canard case, the Manitoba Court of Appeal has held section 43(a) of the Indian Act inoperative because of a conflict with the Bill of Rights. That section provides that the Minister can appoint executors for the wills of deceased Indians. That case is being appealed and is expected to be heard by the Supreme Court of Canada at the same time the Lavell and Bedard Cases are heard.

The kinds of cases that can arise should be divided into two groups:
  • cases where inequality is alleged as a result of federal laws
  • cases where inequality is alleged as a result of federal and provincial laws.
Let us look at the first category, where the inequality is to be found in federal legislation without any reference to provincial laws. That was the situation in the Drybones case. Two federal laws were compared—the liquor sections of the Indian Act and the liquor ordinance of the Northwest Territories. Indians were treated worse than whites (not just differently—worse) and the Supreme Court held that the Indian Act sections were inoperative. They did not say that the sections were inoperative in the provinces where the inequality would result from comparing Federal laws and provincial laws.

The second example of inequality resulting from Federal laws alone is the Lavell case. Different provisions of the Indian Act are compared to each other. The allegation is not that Indians are treated unequally with whites, but that an Indian woman is not treated in the same way as an Indian man.

The second group of cases are cases where you must compare sections of the Indian Act with provincial laws to find any inequality. That was the situation in the Canard case. That was the situation in the Whiteman case where a District Court Judge in Saskatchewan ruled that the on-reserve liquor provisions of the Indian Act still applied but the off-reserve ones did not. The decision doesn’t make much sense and is of little help.

The Supreme Court of Canada may rule that the Bill of Rights only applies to inequality resulting from federal action only. If they hold that then they will reverse the Canard decision.

There have been suggestions that the voting age provision in the Indian Act might be challenged. The Indian Act requires people to be 21 before they can vote. Federal and most provincial laws now use 18 as the age for voting. Since, in this case, the voting is for local government, the proper comparison is with provincial laws for voting in local elections. The Bill of Rights may not apply because the inequality would be based on provincial and federal laws, not on federal law alone.

The Supreme Court of Canada and the Manitoba Court of Appeal have suggested that laws favourable to the Indians such as those involving reserve lands or hunting and fishing would not be threatened by the Bill of Rights.