Natural Daughter of this Land is Neither Here Nor There
After Kafkaesque hunt, Indian status and citizenship both out of reach for desperate Ontario mom
It means that while she grew up in this country since her teens, the now 25-year-old mother of two can’t get a social insurance number, health-care coverage or child tax benefits even though one of her children was born in Canada.
She says sexist laws have prevented her from obtaining her status Indian card, which would give her all those rights and privileges, and Citizenship and Immigration has suggested her only means of naturalization is to first apply for permanent residency on humanitarian and compassionate grounds.
“I’ve been living like an illegal immigrant for almost 12 years,” said the frustrated Haliburton, Ont., mother during a recent trip to Ottawa to make her case to anybody who would listen. “I’m hoping to fix it. I’m not leaving.”
Considered unique, Harnois’ case highlights just how convoluted Canadian citizenship and aboriginal law can be.To explain, here’s a breakdown of her conundrum:
Harnois was born in the United States to an aboriginal mother and non-status father, the latter of whom she never really knew, and entered Canada legally as a dependent of a status Indian in her early teens to be closer to relatives. Her mother was also the offspring of an aboriginal mother and white father, but they were never married.
While all her ancestors from her grandmother down are full-blooded aboriginals from the Chippewa of the Thames reserve near London, Ont., she argues she was ineligible for Indian status due to a “second generation cut-off” rule that prevented Indian women from passing on status. Bill C-3 passed in 2010 sought to rectify parts of the law, but it offered no reprieve for her as her grandmother — an Indian woman who had children with a non-status man in the context of a common-law relationship — was still barred from passing on status.
On the citizenship side, Harnois has learned that she is also among those who were penalized in 2009 when the government amended the Citizenship Act so that second-generation offspring born abroad could not be naturalized. Part of Bill C-37, the decision was made in the aftermath of the Israel-Lebanon war after some so-called dual “citizens of convenience” were criticized for taking advantage of the Canadian government and accepting an airlift out of the region only to return once tensions died down.
Bill C-37 was supposed to help “lost Canadians” like Harnois’ mother who was born outside Canada, out-of-wedlock and whose birth was registered with the band office, not the Canadian government. It helped about 95% of so-called lost Canadians who often discovered they weren’t citizens for a variety of administrative reasons when they applied for a passport. That said, it left out the children of would-be war brides and Canadian servicemen born out-of-wedlock prior to 1947 when Canada had no citizenship laws of its own. It also created a new class of lost Canadians — second-generation, born-abroad residents who previously had the option to apply to retain their citizenship before their 28th birthday. It’s an option that might have been available to Harnois had her mother thought to register her own citizenship and her daughter’s citizenship sooner.
I think in the future people will be more informed and educated and will have a greater understanding of what their rights and obligations are
“It’s understandable that Canadians may not want second, third and fourth generation born-abroads with no connection to Canada to be citizens,” Harnois conceded.
She added this is often not the case for the remaining lost Canadians, who “have beyond substantial connections and bear legitimacy in Canada.”
This week, Jackie Scott — a 68-year-old B.C. woman who was denied citizenship despite coming to Canada at the age of two with her British mother and Canadian father — went to court to fight for those lost Canadians born prior to 1947, but it’s unlikely her case will have any bearing on people like Harnois.
Toronto immigration lawyer and author Jacqueline Bart said it appears Harnois is indeed “caught” in a very “difficult” and “unique” situation that may only be resolved through humanitarian and compassionate considerations. That said, she believes it was a “prudent” decision on the part of government to limit citizenship to a single generation born abroad and suggests there’s “a real onus on parents to make sure they regularize their children” as soon as they can, be it through sponsorship or another method.
“Otherwise somebody could basically live here for three years and their children’s, children’s, children’s, children’s, children’s children could continue being citizens even though there’s really no tie to Canada,” she said, adding the law is still relatively new and many are being taken by surprise by it.
“I think in the future people will be more informed and educated and will have a greater understanding of what their rights and obligations are.”
As for a possible resolution under the Indian Act, Victoria, B.C.-based aboriginal lawyer Christopher Devlin argued it’s unlikely. He believes it’s in the government’s interest to deny Indian status to aboriginals who marry and procreate with non-aboriginals. It means in 100 years, he argued, there won’t be many status Indians left which means less funding for aboriginal communities and fewer treaty obligations.
“As long as the government defines what it is to be an Indian by procreation and generation and not by other measures of culture and ethnicity, then you’re going to run into these problems and there’s going to be people who very much identify with their aboriginal past but are going to be cut off from legally being Indians,” he said.
“They will have gotten rid of their Indian problem by defining Indians out of existence … It’s a gradual but relentless way to eliminate your responsibility for aboriginal people.”