2. Women's Perspectives - Christian Aboriginal Infrastructure ...

membership. We have already seen that some individuals might have problems obtaining
membership in a band even though they have obtained Indian status. This has
ramifications for descendants, because the children of people stripped of membership or
status will not be able to inherit, possess or even reside on reserve land. Most notably,
this includes non-Indian spouses of Indian persons married after 1985 as well as spouses
of Bill C-31 women and, potentially, their children. This affects Indian women and their
families disproportionately.
There is no prohibition against women owning property through a certificate of
possession. But the cumulative effect of a history of legislation that has excluded women
and denied them property and inheritance rights, together with the sexist language
embedded in the legislation before the 1985 amendments, has created a perception that
women are not entitled to hold a CP. In a brief to the Commission, the B.C. Native
Women's Society stated:
In the past, the Department of Indian Affairs has followed the practice of issuing
Certificates of Possession solely to the oldest male member of the family. This tradition
has been carried over from European notions of land holding and succession and it has
resulted in the dismantling of many Aboriginal systems. For example, before contact, in
many matrilineal systems, women held elevated positions of power and prestige superior
to those of their husbands. Furthermore, the descendence of those rights and power
continued through the female, not male, lineage….After contact, Aboriginal women not
only lost their formal positions of power and prestige they formerly held but the new
system may have caused them to lose their right to live with their children in their own
community. 80
A further complicating factor is the division of property when a marriage fails. Marriage
and the division of marriage assets upon marriage breakdown are governed by provincial
law, but the Indian Act is paramount on reserves. A court cannot order the division of onreserve
property on the same basis as it can with other property. Likewise, no court can
order that one party shall have exclusive possession of the matrimonial home. Indian
women on-reserve, therefore, are seriously disadvantaged. In 1986, a precedent-setting
decision was made on this point. In the case of Derrickson v. Derrickson, the court held
that a woman cannot apply for possession of the matrimonial home unless the certificate
of possession is solely in her name. The most she can hope for is an award of
compensation to replace her half-interest in the house. 81
This is seen as extremely unfair, because land and housing are in short supply on many
reserves. Also, in an abusive situation, such a ruling could force a woman away from her
support network of community, friends and family. The B.C. Native Women's Society
has suggested that courts should view the issue as one of federal and provincial
jurisdiction rather than one about "whether the application of Euro-Canadian rules and
values relating to family and property are appropriate". 82
In principle, many Indian women want the presumption of equitable interest in reserve
lands of married (or equivalent) spouses reflected in legislation. Some possibilities were
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