Two-spirit father says First Nation's membership code requiring paternity testing is discriminatory

A two-spirit father says he and his children are being discriminated against because his First Nation in New Brunswick requires paternity DNA testing for his children to become members.

Only 1 of Wayne Wallace's twin sons has membership status

Wayne Wallace, a father of twins, says the band membership code for a New Brunswick First Nation is discriminatory because it only grants membership to his biological child. (Submitted)

A two-spirit father in New Brunswick says he and his children are being discriminated against because his First Nation requires paternity DNA testing for his children to become members.

Wayne Wallace is a status Indian and a band member of the Madawaska Maliseet First Nation in New Brunswick. He and his husband have four-year-old twins through a surrogate mother, but only one of the twins is allowed membership in the First Nation.

"The twins share the same mother, and we fertilized each of our share of the eggs and implanted into our surrogate, one embryo each, and they both took," said Wallace.

Both twins are status Indians under the Indian Act, but since only one of the twins is biologically his, that child is the only one considered a member of the Madawaska First Nation.

In 2014, the Maliseet community of Madawaska voted on a membership code that allows the band to decide who will become a member of the community.

Under the policy, the children of any mothers who are from the band are automatically members of the First Nation.

Fathers from the band who want to register their children as members must take DNA tests to prove they are biological parents.

"When the child is born, you apply to the community to become a member," said Wallace.

"And then if you're a male, they will ask to you to go to their preferred trusted source to undergo DNA testing. And if you refuse, then you're basically not allowed to register that child."

Brothers with different membership status

This policy is creating a division in his own family based on the technicality.

"You have a brother who's a member and a brother who is not a member. So if you were living in the community, one of them would be getting all the benefits of being a member of the community, one would get nothing," said Wallace.

Wallace said the policy creates uncertainties for people who are transgender, have fertility issues or want to adopt.

He argues the policy discriminates against his own family based on his sexual orientation. Wallace said if he were married to a woman, this would be a non-issue.

Last year, he filed a complaint with the Canadian Human Rights Commission alleging discrimination on the basis of sex, family status, genetic makeup and sexual orientation.

According to Wallace, the human rights complaint is still in its early stages, and the first step is to go to mediation with the leadership of the community.

"They contacted the chief requesting if they would be willing to do that, and that request was denied with the explanation that it's not within [the chief's] power to change the code because it's voted on [by the community]."

Discrimination or act of self governance?

At last count, the Madawaska First Nation had a total of 557 members. The band recently won a land-claims case with the federal government and is negotiating compensation — a figure that could potentially reach $150 million.

According to Chief Patricia Bernard, the First Nation first enacted its own membership code in 1986.

The band wanted to make changes to the code to determine its own members and ensure that people who were not descendants did not become members.

Patricia Bernard, chief of Madawaska Maliseet First Nation in New Brunswick, says the First Nation enacted its own membership code in 1986. (Julia Wright / CBC)

"Our community has a lot of benefits and advantages and a couple of scenarios arose where — we're a small community so everybody knows pretty much everything — there was a situation where people were claiming that the child was theirs and it was pretty obvious that it wasn't.

"So in order to to eliminate that uncertainty we placed this criteria on on our members. The membership themselves asked for this to secure a sort of certainty with respect to the descendancy."

The band decided to amend the code after two years of community consultations and a referendum vote.

'You either are a descendant or you're not'

Bernard said she does not believe the membership code is a form of discrimination, but rather a protection of culture and identity.

"For me specifically if you want to talk about discrimination, it's a very difficult, complex concept especially when it comes to Aboriginal people and Aboriginal communities," said Bernard.

"There's a lot of deeper sort of issues surrounding that with respect to the membership. I wouldn't say it's discriminatory, it's you either are a descendant or you're not."

Wallace acknowledges that the chief and council do not have the power to change the policy on their own, but he hopes they can use their influence to lead the discussion and help resolve the issue of his sons becoming members.

"At the end of the day all I want is my child to be treated like any other members that are members within our community, because if you apply this code retroactively there'd be a lot of people that would lose their membership," said Wallace.


Lenard Monkman is Anishinaabe from Lake Manitoba First Nation, Treaty 2 territory. He has been an associate producer with CBC Indigenous since 2016. Follow him on Twitter: @Lenardmonkman1