July 2, 2017
Not Liberal Democracy
Should Indians get
benefits based on heritage?
Flannigan, Professor University of Calgary, Fraser Institute
the wake of National Aboriginal Day, it’s worth reflecting on how the
feminist movement affects the character of the aboriginal (or indigenous)
Under the Indian Act,
membership in Indian bands, now called First Nations, was originally passed
down through the male line; Indian women who “married out” lost their Indian
status and their children were ineligible to become legal Indians.
Following the 1970 report of the Royal Commission on the Status of Women,
the status quo came under heavy assault. A series of legal changes restored
Indian status to tens of thousands of women and their children and
grandchildren. Through Bill S-3, the Trudeau government is proposing now to
enable the registration of all Indian women and their descendants who have
lost status since 1951, when the Indian Register was created. However, the
Senate aboriginal peoples committee recently amended the bill to push the
date back to the first Indian Act (1876), a change the government says it
will not accept.
Regardless of how this tussle ends, the combination of legislation and
litigation will almost certainly continue to grant Indian status to ever
greater numbers of people, and not only because of feminism. The largest
First Nation in Canada is now the recently recognized Qalipu Mi’kmaq First
Nation of Newfoundland. Other so-called “landless bands” are also struggling
The logic of these developments is to allow anyone who can demonstrate any
degree of Indian ancestry to apply for registration, i.e., to receive legal
Indian status. We are not there yet, but things are clearly moving that way,
particularly in light of the recent Daniels decision of the Supreme Court of
Canada, which held that Métis are legally Indians under s. 91(24) of the
Constitution Act, 1867.
This wouldn’t be an issue if it were merely a question of how people choose
to label themselves, but it is much more than that because registration
brings with it valuable taxpayer-funded benefits. The Non-Insured Health
Benefits Program, worth about $1,200 a year (tax-free) for each person,
covers each registered Indian as well as Inuit. Depending on circumstances,
registered Indians may also qualify for tax exemptions, financial support
for advanced education, and special hunting and fishing rights. At one time,
being an Indian carried severe legal disabilities, such as not being able to
vote or possess alcohol, but those disabilities have been repealed. Today,
the balance of incentives surrounding legal status has switched from
negative to positive.
The trend towards extension of status creates numerous practical problems.
Rapid growth in the number of registered Indians increases budgetary
pressures while diluting the impact of the Aboriginal spending envelope.
Indigenous and Northern Affairs Canada spending per registered Indian
decreased 16 per cent from 1998 to 2015. Some First Nations welcome the
increased numbers, but many believe they cannot afford to provide services.
They sometimes also fear that newly registered Indians who have lived off
reserve for decades no longer share their traditional culture. There are now
tens of thousands of registered Indians who are not members of any First
Nation, and that number is likely to increase.
In short, changing social values, political pressures, and litigation are
combining to produce a result that no one envisioned or intended: the
emergence of a sizable indigenous population defined solely by ancestry and
receiving substantial financial benefits because of that ancestry.
In many cases, the amount of indigenous ancestry will be small, but that's
not the main difficulty. The chief objection is that for governments to
assign benefits on the basis of heredity is not really compatible with the
ethos of liberal democracy. Canada has worked hard for decades to expunge
ancestry as the basis for public policy; do we really want to bring it back?
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