By Melodie McCullough
So far Canada’s federal government has spent $762,827.48 and 30 years trying to make Lynn Gehl disappear.
It hasn’t worked.
Gehl wants First Nation Indian status, and, although she lost a major court decision 18 months ago, she and her lawyers are still pursuing the case.
“It’s not easy to explain, but it’s a very good case study example of how Canada continues with its policy of making non-status Indians, to get out of their treaty responsibilities,” said Gehl, in a recent interview. “I can’t believe I lost. It was really sad.”
She is an Algonquin-Anishinaabe-kwe living in Peterborough, and is a descendant of First Nations people of Pikwakanagan First Nation Reserve near Pembroke. When her grandmother, Viola Gagne, was a child she was escorted off the reserve with her mother, Annie, (Gehl’s great-grandmother) because Annie married a man who was Indigenous only through his mother. They lived in a neighbouring town. Viola gave birth to Gehl’s father in 1935, but his father’s name was not given on the birth certificate.
Gehl, who grew up in Toronto, often visited her father’s former territory with her family, but they were not allowed to live there. She said she grew up living Indigenous culture in practice, not consciously, but then moved into it more fully as she grew older.
She has been denied Indian status registration and the subsequent treaty rights because of an Aboriginal Affairs and Northern Development Canada (AANDC) policy assumption that applies non-Indian paternity when a father’s signature is missing on a child’s birth certificate. As a result of this policy, her father is not entitled to pass his status on to Gehl.
“It was heart-breaking that Canada just didn’t care about me. It makes me so sad that I’m not important, though my ancestry is Indigenous to this land.”
That’s what Gehl, 54, said she has been fighting against these many years, not just for herself, but for other vulnerable young First Nations women, saying the Indian Act discriminates against them and their children whose fathers are unknown, unstated or unreported, and this is sex discrimination. These mothers, often lone parents living in poverty, rely on federal programs, services, and health and education treaty rights that come with Indian status to care for their children — but they are denied them.
In 2003 Stewart Clatworthy of Four Directions Consulting Ltd., a leading expert in the field of Aboriginal demography, determined that, through 1985 and 1999, 50,000 children were affected by the policy.
Gehl said there are many reasons why a father’s signature might not be on the birth certificate, such as rape, sex work, an affair, incest, sexual slavery, abuse, or the father’s inability or unwillingness to provide child support. AANCD’s unstated paternity policy applies in these situations, and it’s well known that Indian women face a higher risk of sexual violence, she said. In this way, Canada actually benefits from sexual violence against Indigenous women, she continued.
Gehl first realised something was wrong in 1985, when the Indian Act was updated to bring it in line with Canada’s Charter of Rights and Freedoms (1982). Some changes granted more equality to First Nations women.
But where unstated paternity is an issue, it moved backwards. Before then, it was presumed that if the father was not named that he was Indian. The mother and child could still live on the reserve as a band member and keep status rights, unless a protest was made and it was determined the father was a non-Indian.
Despite the changes in 1985 that claimed to bring the Indian Act in line with the Charter, Gehl continued to be denied status.
When the Indian Act was amended that year, the government removed provisions that protected the children of unknown or unstated paternity. The Indian Act is now silent on the issue — but AANDC has developed an internal policy which now assumes the child’s father is non-Indian, said Gehl.
“That was a real shock to me. They made it worse and I thought I am I the only one who sees this? Is it just me? You don’t think Canada can be that dubious. You’re kind of floored. You want to think that Canada is a great country.”
“It was heart-breaking that Canada just didn’t care about me. It makes me so sad that I’m not important, though my ancestry is Indigenous to this land,” she said.
So her journey began, following the footsteps of other Indigenous women before her, who have fought sex discrimination in the Indian Act through the courts– women like Sharon McIvor, Mary Two-Axe Earley, Yvonne Bédard, Jeannette Corbiere Lavell, and Sandra Lovelace. It is said that Lavell and Bédard were responsible for redefining equality in Canadian law in the Charter of Rights and Freedoms — thus serving all Canadian women, not just Indigenous.
“Canada has wanted us to forget who we are.”
Gehl considers these women to be her mentors and heroes — they empower her to continue her work.
First she learned the oral history of her family from her grandmother, Viola. Then came intensive genealogical archival research. In 1995, when Gehl applied for Indian registration, she was denied. It was at this point that Aboriginal Legal Services Toronto took on her case, and in 2001 a statement of claim was filed: Lynn Gehl versus Her Majesty the Queen. Her work on this was recorded by the Canadian Museum of Human Rights in 2012 and is now being edited.
Years of legal wrangling followed, until finally in October, 2014 Gehl challenged Section 15 of the Charter of Rights at the Ontario Supreme Court of Justice in Toronto.
It took 20 years to be heard in court and it was “really depressing” when she lost, she said. Her lawyers will not let her discuss future planned actions other than saying they are moving on to the Ontario Court of Appeal based on an error of law and new evidence.
“I don’t know why I lost when McIvor (a case that addressed some of the remaining discrimination in the Indian Act) and a recent case in Quebec also won,” she said. “What is it about the Gehl case, I wonder?”
But something else happened during those years. At age 33, Gehl decided to take one psychology course at York University because, “I wanted to know what the heck happened to Indigenous people”.
Then she wanted to learn more. A vision disability she has had since childhood presented challenges. It was a steep learning curve, but with the help of her partner, Nik, she graduated summa cum laude with an anthropology degree from York University in 2002.
“And that was a real eye-opener for me. If you experience so many suicides and poverty you begin to think you are inferior, but then you realise, ‘No, it’s a system of structural oppression intentionally imposed by the nation state called Canada’,”.
She went on to obtain a Master of Arts in Canadian Studies and Native Studies from Trent University in 2005, and a Doctor of Philosophy from Trent in Indigenous Studies in 2010. Her 2014 book, The Truth that Wampum Tells: My Debwewin on the Algonquin Land Claims Process, is based on her doctoral work on the Algonquin land claims process. Two other books that serve community people and people with learning disabilities by Gehl have also been published.
“Even today when I read it is a struggle. Now I’m amazed that I can write. That’s why I do it so much.”
What has 30 years of social activism taught her?
“Canada has wanted us to forget who we are. A lot of people are more hopeful and trust policy makers, and have a warm, fuzzy feeling about the Charter of Rights. I don’t feel that and for good reason. We still have legislation that is racially and sexually discriminating, despite claims — and it is intentional,” she concluded.
“We were taught that Indigenous knowledge was primitive, backwards and silly. It was quite an education to come from being ashamed and feel not worthy to realising it is incredibly sophisticated and valid — and this scares Canada, which is too bad because all Canadians would benefit from what Indigenous knowledge has to offer.”