Martin v. Chapman Supreme Court of Canada –  1 S.C.R. 365
This case determined that an illegitimate male child of an Indian man can meet the criteria set out in the Indian Act in order to be registered.
Is John Martin eligible for registration as an Indian under the Indian Act?
Martin has the right to be registered. The Indian Act makes no mention of the necessity for the child to be legitimate. As such, there is no reason to add the criterion of legitimacy when it is not provided for by the law (4 judges against 3).
Between: John Martin
And: H.H. Chapman
Mis en cause: Canada and Band Council of the Indian reserve of Maria
John Martin is the illegitimate son of Robert Martin and May Richards. His father was an Indian and member of the Micmac of Maria Band of Indians while his mother neither an Indian nor a band member. Since his parents were never married, he is illegitimate.
Martin applied to be registered as an Indian and Band member, but his application was denied by the Band Registrar, Chapman, on the grounds that s. 11(1)(c) of the Act applied only to legitimate children:
11.(1) Subject to section 12, a person is entitled to be registered if that person
(c) is a male person who is a direct descendant in the male line of a male person described in paragraph (a) or (b);
(d) is the legitimate child of
(i) a male person described in paragraph (a) or (b), or
(ii) a person described in paragraph (c);
Martin: Paragraph (c) makes no mention of the criterion of legitimacy. Status should therefore be granted, as Martin is a descendant of a male with status in the male line.
Chapman: If para. (c) allowed for the registration of both legitimate and illegitimate children, there would be no need to specify legitimate children in para. (d). In order to give the other provisions of the Indian Act meaning, para. (c) must be interpreted as excluding illegitimate children.
Federal Court, Trial Division: The application to force the registration of Martin is rejected. Section 11(1)(c) excludes illegitimate children from the application of this section.
Federal Court of Appeal: Confirmed the decision.
Ritchie, Dickson, Beetz, Wilson
There are distinctions between legitimate and illegitimate children in paras. (d) and (e), but not in para. (c). According to the plain meaning of the words in the Indian Act, it is clear that Parliament intended for status to be conferred on applicants in the situation of Martin.
Section 12 has the objective of limiting the dilution of Aboriginal blood by excluding mixed descendants after two generations. The conclusion that s. 12 was intended to exclude the offspring of one generation of mixed parentage for the simple reason that the child is illegitimate is unfounded.
The Indian status granted by paragraph (c) is therefore dependent on the descent through the male Indian line and not the legitimacy of such a descent. The Registrar must therefore register Martin as an Indian
At the time of the judgement, women lost Indian status upon marriage to a non-Indian. In the same line of thinking, unknown fathers of children born to Indian mothers were presumed to be non-Indian. This decision further reinforced discrimination against Indian women by stating that a child of a non-Indian father and an Indian mother has no right to be registered, whereas the child of an Indian father and a non-Indian mother does. The reason given is the descent through the male line.
In other words, there is no discrimination against children based on their legitimacy, although it exists on the basis of the sex of the registered parent.
Changes to the Indian Act in 1985 allowed for Indian wives of non-Indian men to obtain Indian status. Approximately 83, 000 Indian women were able to be registered as a result.
After the McIvor case, in 2009, the grandchildren of these women became equally eligible for Indian status as the grandchildren of Indian men who married non-Indian women. This continues to be the state of law today, as the Supreme Court refused to hear the appeal.
Grammond, Sebastien. 2009. “Discrimination in the Rules of Indian Status and the McIvor Case.” Queen’s Law Journal 35: 421 – 432.