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University of Miami International and Comparative Law Review

Abstract

Since colonization, the core objective of Canada’s Indian policy was to “get rid of the Indian problem”. To accomplish this, Canada has engaged in the forced assimilation of Indians (First Nations), with targeted and disproportionate impacts on First Nations women and girls resulting in grave human rights violations. Drawing on international human rights laws and standards (such as the Convention on the Elimination of All Forms of Discrimination Against Women and the United Nations Declaration on the Rights of Indigenous Peoples); numerous inquiries and commissions (Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls); international reports (United Nations human rights treaty bodies and the Inter-American Commission on Human Rights); and various court decisions; this paper articulates a justiciable frame for how physical elimination and forced assimilation have been operationalized both historically through smallpox-infected blankets, scalping bounties, Indian residential schools, child apprehensions, and contemporarily through the “disappearing Indian formula”: a state-controlled legal formulation for ensuring the legislative extinction of Indians (First Nations).

The authors contend that these rules violate the human rights of First Nations generally, and First Nation women and girls specifically, and serves as one of the root causes of murdered and missing Indigenous women and girls today. Using sex- and race-based discrimination in the Indian Act as a case study, the authors argue that Canada is still engaged in forced assimilation. Highlighting the leadership, resistance, and agency of First Nations women, the authors offer remedies as a pathway to reconciliation.

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