They fought for decades to be recognized as Indigenous. Now they want to take the federal government to court

Daphne Young is Ojibwe. But she grew up in Nipigon, Ont., estranged from her culture and people at Red Rock First Nation. Her family was removed from band lists more than a century ago when her great-grandfather, Frank Hardy, joined the Canadian Armed Forces before the First World War.

Like most Indigenous men, Hardy had to enfranchise to join the army, meaning he gained Canadian citizenship and voting rights but gave up his band affiliation and status under the Indian Act. At the time, that meant his wife gave up her status, and he could not pass down status to his children.

Without status, Young could not live in her hereditary First Nation. Nor could she access non-insured health benefits, sales tax exemptions and education funding available to people with status.

“My family didn't live on reserve because we were not legal paper Indians — we just looked like them,” Young said. “Even though I always knew I was Native, I never felt like I belonged anywhere.”

In 1985, Canada amended the Indian Act, allowing women as well as men to pass status down to their children and keep their own status if they married non-status men. But the amendments only let parents pass status down a single generation and Young’s mother died before the law changed, leaving her daughter in limbo.

Canada expanded eligibility to include people like Young in 2011, when the government updated the Indian Act to include the grandchildren of women who gave up status by marrying non-Indigenous men. By then, she had spent most of her life excluded from compensation the government gave to other Indigenous people.

She is hoping to regain some of those losses through a class-action lawsuit started by Dennis Sarrazin, a member of the Abénakis of Wôlinak First Nation in Quebec. He, too, was excluded from status for most of his life.

Sarrazin filed the suit against Canada seeking compensation for damages resulting from the loss of status. Sarrazin was not granted status until 2012, at age 58. His case — which represents 45,000 Canadians, court documents show — has been winding through the legal system for nearly 11 years and will face a pivotal hearing this year.

In December, the Superior Court of Quebec is set to determine whether or not Canada had “wilful disregard” for the consequences of excluding people like Sarrazin from gaining status. If the court finds the federal government acted in good faith, Sarrazin’s class action will not continue.

Sarrazin’s lawyer, Christine Nasraoui of Merchant Law Group, told Canada’s National Observer in an email she advised her client not to comment until the case is resolved.

Sarrazin’s class-action lawsuit was certified in 2016. But courts pointed out when the Indian Act was amended in 2011, a clause said nobody could claim compensation for anything done or omitted by the law “in good faith.”

The federal attorney general argues this grants the government “immunity” against Sarrazin’s class action.

Nasraoui and Sarrazin argue Canada’s provisions to the Indian Act were not made in good faith. In an email to Canada’s National Observer, Nasraoui said until 2011, Canada’s changes to status eligibility policy were unconstitutional and discriminated against women.

Matthew Gutsch, a spokesperson for Indigenous Services Canada, said in an email to Canada’s National Observer the department would not comment because the matter is still before the courts.

Young is represented by Sarrazin’s class action but has no role in organizing the legal action.

She says the denial of her initial application for status made her feel disrespected.

“It made me feel like I have no power over my own self or my identity if the government has to make all those decisions,” Young said. “It doesn't make any sense to me.”

Young went on to work for Indigenous Services Canada. Her work paid for her health benefits, but she could not apply for education funding or reserve housing. For other Indigenous Canadians, though, non-insured health benefits could go a long way.

On Dec. 20, 2022, a representative of Indigenous Services Canada called Young to tell her that her status had been granted. Thirty-seven years after she set out to register with the Indian Act, Young finally got a status card.

“By rights, it should have happened right in 1985. I should not have to wait for all these other little things to happen,” Young said. Not being able to get status was just “one kick in the head after the other.”

Alison Tedford Seaweed is a ʼNakwaxdaʼxw woman from the Kwakiutl First Nation on Vancouver Island. When Tedford’s son was born in 2007, the Indian Act did not permit her to pass status on to him.

While Tedford said status under the Indian Act does not affect her son’s link to his heritage, registration could provide him with better health care and education funding. As a freelance writer, Tedford pays for dental and expanded health care out of pocket.

“This recognition does allow for some opportunities for him, which as a parent I obviously would like him to have,” Tedford said.

Tedford said she is in the process of registering her son for status under the act.

She hopes the declaration Sarrazin seeks in damages will be a step towards making it easier for her siblings and her child to claim status.

The next pivotal court date to determine whether Sarrazin’s class action goes to trial is scheduled for sometime in December.

For Tedford, the case could be a step towards recognizing Canada’s past treatment of Indigenous Peoples; she hopes the court sides with Sarrazin.

“I think that acknowledging the truth of what's happened is really important,” she said. “Legal acknowledgment of status is something that is important when we reflect on how colonization has impacted and interrupted the transmission of culture.”