Partial Histories: Constituting a Conflict between Women's Equality Rights and Indigenous Sovereignty in Canada by Genevieve Painter A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Jurisprudence and Social Policy in the Graduate Division of the University of California, Berkeley Committee in Charge Professor Calvin K. Morrill, Chair Professor Leti P. Volpp Professor Marianne Constable Fall 2015 Abstract Partial Histories: Constituting a Conflict between Women's Equality Rights and Indigenous Sovereignty in Canada by Genevieve Painter Doctor of Philosophy in Jurisprudence and Social Policy University of California, Berkeley Professor Calvin K. Morrill, Chair This dissertation is a history of an idea, a retelling of a simple story about an idea as a complicated one, and an explanation of the effects of believing the simple story. From 1869 to 1985, to be an Indian in the eyes of the Canadian state – to be a “status Indian” – a person had to have a status Indian father. The Canadian government registered a population of Indigenous people as status Indians and decided that Indian status passed along the male line. If an Indian man married a non-Indian woman, his wife gained status and their children were status Indians. In contrast, if a status Indian woman married a non-Indian man, she lost her Indian status, and her children were not status Indians. This rule exiled women from their families of birth and tore them from the political fabric of their communities. The Indian status system is a keystone in Canada’s colonizing governance of Indigenous life. The rules in the Indian Act for the transmission of Indian status came under heavy criticism and, in 1985, the federal government amended the law. Because the 1985 amendments perpetuated sex discrimination by conferring an advantage to those who traced Indian status along the male line, the rules for Indian status were the object of decades of subsequent campaigning and litigation. In 2008 and 2015, landmark judgments in McIvor and Descheneaux declared the rules to be in breach of the gender equality guarantees in Canada’s Charter of Rights and Freedoms. In overturning the Indian Act’s status rules, the courts have relied on the government’s explanation of the history of these rules. The legislative history told by the government mirrors commonly held views about the history of the 1985 amendments to the Indian Act. According to this canonical history, the core explanation for the Indian Act amendments is a tension between individual rights to gender equality and collective rights to Indigenous self-governance, embodied in a conflict between Indigenous women and Indigenous communities (often represented by male Indigenous leaders). According to the canonical history, the opposition between these groups yielded an 1 intractable political stalemate – a Gordian political knot that could only be sliced by the equality rights offered in constitutional and international human rights law. This dissertation unseats the canonical history by advancing an alternative account, one with both a wider aperture on the political and social context and a sharper focus on detail, complexity, and contingency. The dissertation asks how individual equality rights and Indigenous self-governance became juxtaposed to one another in a relationship of tension and dichotomous opposition and explains the discursive, political, and social forces that came together to create this idea of opposition. It situates the history of the Indian Act amendments in the context of negotiations for the re- founding of Canadian sovereignty and the passage of the Charter of Rights and Freedoms, Indigenous demands for recognition as a third order of government in Canada’s federal state, changing understandings of equality in Canadian law, and shifts in the categorization of the problem of Indian women’s loss of status as a political, social, or cultural problem. It traces the role of Indigenous political organizations, Indigenous women’s political organizations, and the white-led women’s movement in shaping the debate. It tracks how an issue transformed from a political problem into a question of fundamental rights. Debates about amending the Indian Act showed a consensus among Indigenous people about the importance of Indigenous self-governance and the need to end sex discrimination in the Indian Act. Conflict among Indigenous groups arose about the mechanisms for recognizing Indigenous self-governance and the definition of self- governing polities. Rather than a pitched battle among Indigenous people, the central threads running throughout the history of reforms to the Indian Act are the federal government’s steadfast refusal to recognize inherent Indigenous self-governance and a desire to limit government spending on status Indians, all in service of a project of constructing and defending Canadian sovereignty. The dissertation exposes the government’s share of responsibility in creating a conflict between gender equality rights and Indigenous self-governance. It reveals the law’s hand in shaping the discourses of rights through which this idea of tension became articulated, labeling those rights as fundamental, pitting those rights against one another as intrinsically opposed, and then balancing them in the name of justice and fairness. In contemporary litigation over the Indian Act, the Canadian government deploys a story about competing interests of Indigenous women and Indigenous communities as a justification for continued discrimination in the Indian Act. In doing so, the government’s retelling of history omits its own active role in shaping and exacerbating the idea of a fundamental conflict of rights. This omission does more than distort history. Through this narration of a partial history and its repetition by the courts, the words uttered by the Canadian state aim to achieve a perfected, completed sovereignty, one that has already silenced the eruptive speech of rival sovereignties. The telling of history by the court tames the wilder moments of the past, when neither the possible nor the likely outcomes were clear. The dissertation aims to make the present readable as just one of many alternatives among the past’s futures. 2 Table of Contents Acknowledgements .................................................................................................................... ii A Note on Terminology ............................................................................................................ vi 1. Introduction .......................................................................................................................... 1 2. Methodology ....................................................................................................................... 33 3. Setting the Scene for post-World War II Canada ......................................................... 49 4. Canada’s Human Rights State and the Indian Act’s Civil Liberties Problem ........ 61 5. A National Bill of Rights .................................................................................................. 79 6. Participation, Empowerment, and Activism in the Heady Sixties ........................... 85 7. Canada Divided: Gender Equality, Indian Special Status, & Quebec Secession . 99 8. Lavell, Coalitions, and Resurgence: The Staging of a Political Conflict .............. 149 9. Lovelace and International Human Rights: From Politics to Culture ................... 183 10. Concessions on the Indian Act and a Delegation to the Queen ............................ 215 11. The Charter, the Constitution, and Canadian Sovereignty ................................... 221 12. Amending the Indian Act: Human Rights, Cost-Cutting, & Self-Governance .. 253 13. The ‘Indian Problem’ after the Charter and the Constitution ............................... 269 14. From Politics to Fundamental Rights: the 1985 Indian Act Amendments .......... 297 15. Epilogue ........................................................................................................................... 323 16. Bibliography ................................................................................................................... 339 i Acknowledgements I was told that writing a dissertation would be a lonely experience, but my experience has been, instead, one of boundless support and deep connection. I gratefully acknowledge that the research for this dissertation was conducted on the traditional territories of the Abénaki, the Algonquin, the Anishinaabe, the Huron- Wendat, the Kanien’kehá:ka, and the Coast Salish peoples. I am indebted to the Abénakis of Odanak and Wôlinak, from whom I gained my first insights into the issues at the heart of this dissertation. I express my deep thanks to the archivists and librarians who make historical research possible and recognize, in particular, the staff the Union of British Columbia Indian Chiefs Resource Centre. Furthermore, Mary Eberts allowed me to spend time researching in her personal archives, and I thank her for her kindness and her excitement about my research. I am deeply grateful to the people who agreed to spend time talking with about their experiences, through informal conversations and formal interviews. This research was sustained through grants and fellowships from the Jurisprudence and Social Policy Department at UC Berkeley, the UC Berkeley Graduate Division, the Hildebrand Fellowship at UC Berkeley, the UC Berkeley Human