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Aboriginal Women: No Rights to Land or Children

At one time, Aboriginal women did not have to worry about child custody and access. Women shaped the social structure and held decisions-making power. Every family member held important responsibilities in the well-being of the children. It was an honour and privilege to have such significant roles in a child’s life so everyone took their responsibilities very seriously.

The belief was that no one owned the children. Each child was a blessing to be given every possible opportunity to be unique, and to receive the utmost best of teachings to bring forth a healthy and well-balanced individual. Human dignity was held in such high regard that there are no words in Aboriginal dialect to differentiate gender: words like him, her, she and he do not exist in many of the languages of the First Nations people.

Today in 2001, things are very different for Aboriginal women. Colonization has stripped Aboriginal women of every conceivable right. Many of our Aboriginal leaders have bought into the patriarchal European structure and have chosen sexist and misogynist beliefs on which to model band rules and policies. Property rights on the reserve determine the outcome of child custody and access rights. Most bands hold all reserve land and property in the name of the band for the use of all members. Before you could go to a court to apply for an order allowing one party to stay in the family home. Courts have now ruled that only the Indian Act can apply to property on reserve. The Indian Act does not deal with family law matters. Women make their requests to stay in the family home to the Band Council, Council of Elders or Chief, who have their own set of rules. The patriarchal structure of most band policies and procedures entitles property rights to the head of the family.

As a result, Aboriginal women attempting to escape violence are often forced out of the family home and community and into cities, where they encounter a multitude of systemic barriers. They are constantly being re-victimized by racism in the system. Because of the complexities of band procedures and policies of who is entitled to what, Aboriginal women are often forced to live in extreme poverty. With these additional barriers, it is almost impossible to fight for child custody and access rights. The Social Development Department within a band is modeled after the child protection act, and the "best interests of children" criterion is seen through this lens, which means that children should live with the person who is financially stable, has access to the family home, extended family members, and to traditional culture. The patriarchal structure of today’s band policies entitles men to all of these – leaving women with few resources.

The residential school syndrome and the destruction of the matriarchal system have led to the normalization of violence. Men can have a history of wife assault but their right to child custody and access is never questioned. This is especially true for men that have a position of power in the community. Allegations of child sexual abuse are being dismissed, without investigation, as false and vengeful charges. Children are being ordered by the courts to spend overnight visits with fathers who have abused them. Mothers have lost custody of their children because they dared to breach a court order by refusing supervised visits with fathers who have abused the children.

Custody and access issues expose the true values of our society. Men’s rights of power and control over women still take precedence. We need a society based on fairness, and a system which accounts for the real social, political and economic realities for Aboriginal women. We need to put the safety of women and children first.

Mabel Nipshank is a Metis woman of Cree and French descent. She has been the Volunteer and Counselling Coordinator at Battered Women’s Support Services in Vancouver for four years, and is a member of the Aboriginal Women’s Action Network.

Reprinted from Education Wife Assault Newsletter, Volume 11, Issue 1 with permission of the author.