Overview: Lavell and the Indian Act

In 1970, Jeannette Corbiere, an Anishinaabe (Ojibwa) woman from the Wikwemikong Unceded Indian Reserve on Manitoulin Island in Ontario, married David Lavell, a non-Indigenous man from Toronto, Ontario. Because of section 12(1)(b) of the Indian Act — an 1876 amendment that removed Indian status from women who married non-status men — Corbiere Lavell lost her Indian status. Commonly referred to as the “marrying out” clause, Indian status women would also lose the ability to pass on their status to their children. Indian status men were not affected by this clause.Under section 12(1)(b), women who sought divorces from status husbands had their status revoked; the only way a woman might regain status was to (re)marry a status man. These status provisions worked as an agent of forced assimilation and disenfranchisement, which marginalized Indigenous women and institutionalized male privilege within band governments, ultimately creating an environment of oppression on and off reserves, and escalating violence against status and non-status women.

After receiving a legal notice from the Department of Indian and Northern Development (now Indigenous and Northern Affairs Canada) that she had lost her status, Jeannette Corbiere Lavell filed a lawsuit on the basis that the federal government was in violation of the 1960 Canadian Bill of Rights because it discriminated against her based on sex.

AG v. Lavell: Case, Ruling and Aftermath

Judge Grossberg first presided over the case. He ultimately dismissed Jeannette Corbiere Lavell in York County Court in 1971. Grossberg concluded that she had not been deprived of equality under the law, since the Bill of Rights afforded her the same protections as other non-status women. Unsatisfied, Corbiere Lavell petitioned and won her case in the Federal Court of Appeals later in 1971. The judges in this court outlined that the Indian Act did not afford equality to Indigenous women, and recommended that the Indian Act be repealed for failing to adhere to the laws established in the Bill of Rights.

The case was brought before the Supreme Court of Canada. As litigation moved through the court system, the Lavell case became associated with the related R v. Bédard case in 1973, which was also about a woman — Yvonne Bédard — who lost her Indian status. However, they were met with some resistance from within the Indigenous community. As the court cases played out, the National Indian Brotherhood (now the Assembly of First Nations) argued that women who challenged section 12(1)(b) were selfish and “anti-Indian” because they fought against the very law (the Indian Act) that they viewed as guaranteeing the right of Indigenous self-determination. Nevertheless, the claimants continued to press on. In the end, the Supreme Court overturned the lower court’s ruling on 27 August 1973, in a controversial and much-questioned decision, stating that the Bill of Rights did not invalidate the Indian Act.

Despite this setback, Indigenous women continued to bring this issue to the fore. Sandra Lovelace — a Welastekwewiyik (Maliseet) woman — brought international attention to this issue with her court case against the federal government, Lovelace v. Canada. In 1981, the UN Human Rights Committee ruled that gendered status provisions in the Indian Act were contrary to the International Covenant on Civil and Political Rights. By taking on the Canadian state, Jeannette Corbiere Lavell, Sandra Lovelace and Yvonne Bédard directly contributed to section 35 of the Constitution Act, 1982, which was amended in 1983 to guarantee that Aboriginal and treaty rights would be equally accessible to men and women under the law. These efforts culminated in the parliamentary assent of Bill C-31 in 1985, which repealed section 12(1)(b) of the Indian Act in an effort to bring this element of legal code into accordance with the Charter of Rights and Freedoms.

Despite these gains, status provisions in the Indian Act remained exclusionary because Indian status was separated from band membership. This means that, while Bill C-31 may have reinstated the status of some women, they could still have their membership to a band or First Nation revoked by the band council. The “second-generation cut-off” also contributed to the persistence of inequity: the grandchild of a woman whose status was reinstated under C-31 was prevented from inheriting status unless both parents of that grandchild were Status Indians.

More recently, two major court cases have further challenged gender-based status provisions. In the 2009 McIvor v. Canada case, the British Columbia Court of Appeals ruled that the Indian Act discriminated against the descendants of Indigenous women who married non-Indigenous men, prompting changes to the law. In the 2015 Descheneaux case, a Québec Superior Court judge found that subtle forms of sexual discrimination persisted under the Indian Act and ordered the government to reform the law comprehensively (see Indigenous Women and the Franchise).

Significance

Although the Lavell case verdict was a setback for Indigenous rights activists when it was delivered in 1973, this Supreme Court judgement brought these issues to national prominence. In its initial failure, the Lavell case helped to further galvanize Indigenous women and their allies in the women’s movementinto action, which ultimately contributed to a dialogue of constitutional, legal and social reform (see Women’s Movements in Canada: 1960–85 and 1985–present).

The Lavell case was a precursor to changes in Canadian legal code, and has been widely recognized by legal scholars and historians as transformative in nature, and significant to the narrative and evolution of the Canadian constitution, as well as the fight for fundamental human rights. The case took place during revolutionary developments in human rights and anticolonialist discourse internationally, movements characterized by the growth of critical legal theory, critical race theory and feminist theory. Historians have noted that this period marked a collaboration between Indigenous women’s groups and feminists, who shared some overlapping ideologies, including a commitment to expanding civil liberties, and an explicit concern for the political and economic status of women, minorities and the poor in society. These strains of thought were circulating in a climate of political, legal and social change that sought to challenge racist and sexist structures of the past.In Lovelace v Canada case the UN Human Rights Committee ruled that the status provision was contrary to the International Covenant on Civil and Political Rights. Section 35 of the Constitution Act, 1982, was amended in 1983 in order that the existing Indigenous and treaty rights of the Indigenous peoples of Canada be guaranteed equally to male and female persons. Section 12 of the Indian Act was repealed in 1985.