The Bill did essentially four things:   

1. it rescinded the "enfranchisement" provisions of the Old Indian Act, and provided for the "reinstatement" of persons who had lost their Status as a result of those provisions; 

2. it did away with the "patrilineal" definition of eligibility for Indian Status and replaced it with new gender neutral eligibility rules;    

3. it enabled Bands to assume control of their Band membership list on condition that they adopt a Membership Code that conforms to the Bill; 

4. it allowed Bands to deny membership to certain classes of Status Indians who would otherwise be entitled to membership if control of the Band List had continued to reside with the Department of Indian Affairs. 

As these sections were now constitutionally invalid, the "enfranchisement" of Indian women that had taken place pursuant to them was now also invalid. The federal government was therefore forced to provide for the "reinstatement" of the Indian people they had affected. And having gone this far, Ottawa decided to revoke all other sections of the Indian Act under which a Status Indian could be "enfranchised" and to provide for the reinstatement of all those who had lost their Status on their account.    

Given the motivations for the Bill and this concern with equality rights, Bill C-31 naturally raised expectations that henceforth all Indians would be treated the same. It was widely expected that the Bill would finally do away with the category "Non-Status Indians" and that, in the future, all Indians would be recognized as Indians under the Indian Act. To most Indian people off-reserve, acquisition of Indian Status implied that they would also be accorded the rights and benefits that the Indian Act regime had traditionally reserved for Status Indians.  

This is the first major failing of the Bill. Not only does it not ensure the equal treatment of Indian people, it actually propagates and reinforces the "caste system" into which the Indian Act has historically divided Indian people. It does not even eliminate the category "Non-Status Indians"; rather, as we shall see, it creates the conditions for a rapid expansion of the Non-Status Indian population in the future. At the same time, it divides the Indian population of Canada into even more classes than ever before in terms of legal rights, while reinforcing the historic division between on and off-reserve Indians that the application of 100 years of integrationist policies has produced and that the Indian Act continues to promote.   

Now, it was quite obvious to all at the time that the source of the problems that the Indian Act was having with the Charter of Rights lay in the "patrilineal" rule that had traditionally been applied to determine eligibility for Indian Status. Under the Old Act, if your father was a Status Indian, you were Status Indian; and if your father was "white" or Non-Status, you were "white" or Non-Status. The mother alone could not confer Indian Status. This rule had to go. However, this raised the difficult question of how eligibility for Indian Status would in the future be determined. The only condition was that, whatever the solution, it had to be gender neutral; that is, it had to treat men and women the same.    

Theoretically, this could have been accomplished in any number of ways. For example, the federal government could have given Indian women the same power as Indian men had under the Old Act to confer Indian Status on their children. In this event, a Status Indian women would have acquired the right to confer Indian Status on her children, no matter what the ethnic background of her partner, in the same way that Indian men under the Old Act could do. All Status Indians, whether male or female, would thereby have been acknowledged the right to pass on Indian Status to their children. What's wrong with that? The solution is gender neutral and has the advantage of simplicity. It would have been a reasonable solutiopn and in keeping with the traditions of Indian nations everywhere.    

However, this was not the solution the federal government adopted. Rather than raise Indian women to the same power as men, the federal government chose to place Indian men in a position akin to that of women under the Old Act. From now on, the children of Indian men who married Non-Status as well as those of Indian women who married Non-Status could be denied Indian Status. Under the Old Act, this occurred the moment a Status Indian women married someone without Indian Status. This position was obviously untenable. Instead, the issue was pushed back one generation. Bill C-31 adopts the rule that after two consecutive generations of marrying Non-Status, children of the third generation are not eligible for Status. The same rule applies to both men and women. Is this solution that Indian people anticipated when they accepted the need to ensure sexual equality? We think not, but that is the solution they got.    

This is the second major problem with Bill C-3 1. The federal government has no business telling Indian people whether they are Indian or not. It did this under the Old Indian Act, with disastrous consequences for hundreds of thousands of Indian people; and it is doing it again with Bill C-31. Once again, the consequences will be disastrous. Within the next twenty years, the new Status rules will result in the disqualification of hundred's of thousands of descendants of today's Status Indians. They will start reducing the Status Indian population, certainly off-reserve, but quite likely on reserve as well. And they will lead to a new explosion of the Non-Status Indian population, fed this time by both male and female unions with Non-Indian partners.    

The federal government has no similar rule to determine who is an Inuit or who is Metis or who is French Canadian for that matter. The reason it has such a rule for Indians should be recognized for what it is: a freak of history, completely unjustifiable in the contemporary world.    

Having devised new gender-neutral Status rules, the federal government was then faced with the question of how to implement them. If there had been any logical imperative to the new rules, the federal government would have sought to implement them immediately and universally to all Indians. However, not even Old Act Status Indians could be assured of passing the genealogy test the new rules imposed. Rather than risk having to once again "enfranchise" Status Indians, Bill C-31 simply accepts that anyone with Indian Status at the time the Bill comes into effect is a Status Indian and retains his or her Indian Status, irrespective of the new rules. Similarly, the Bill absolves anyone who had once had Indian Status but who had lost that Status from having to meet the requirements of the new rules.    

Section 6(1) simply declares them eligible for Status and reinstatement as Status Indians. The Bill also provides that the children of any Status Indian living at the time the Act was passed, including the children of Indians who had had their Status restored to them, are all eligible for Status.    

The new rules do not therefore kick-in right away, in generational terms at any rate. They do not apply to the generation of Status Indians who had obtained Status under the Old Act, nor to Indians who had once had Status under the Old Act but who had lost it through "enfranchisement", only to have it restored to them through Bill C-3 1. Nor to they apply to their first generation of descendants, the children of Old Act Status Indians are all automatically recognized as Status Indians. The new rules start making themselves felt only for the second generation of descendants of today's Status Indians: the grandsons and granddaughters of pre-1985 Status Indians and of Indians who have had their Status restored. To qualify for Indian Status, this generation will have either:   

- to have both parents Status Indians; or 

- one parent a Status Indian both of whose parents were Status Indians. 

Canada's Indian community has however been slow to react to this fundamental change in Status rules. This can be explained in part by the fact that the new rules are like a time-bomb with a delayed fuse: Indian populations have not yet really felt their impact. But a second and perhaps more important reason is that all eyes have up to now been focused on the tremendous increase in the Status Indian population to which the reinstatement process put into place by Bill C-31 has given rise. Since 1985, over 115,000 Indian people have obtained Indian Status as a direct result of the Bill. The Status Indian population has accordingly ballooned, particularly off-reserve, in the last ten years. As we shall see later in this paper, this phenomenon is ephemeral. It will pass in relatively short order; after that, "le deluge". But in the meantime, the seemingly positive short-term effects that Bill C-31 has had on the Status Indian population are distracting people from the long term consequences of the Bill.    

However, one short-term effect that Indian people have already begun to feel, much to their regret, is the increased complexity of the "caste system" to which Indian people are subjected under the Indian Act regime. For in addition to the Status Indian and Non-Status Indian categories inherited from the Old Indian Act, the reinstatement process under Bill C-3 1 has created a new category of Aboriginal people, commonly referred to as C-31 Indians. Legally-speaking, there is no such thing as a C-31 Indian; the Indian Act recognizes only Status Indians, and C-31 Indians are officially Status Indians like any other. However, technically-speaking, the term has come into usage to distinguish those Status Indians who owe their Status to Bill C-31 from those who would have had Status even under the Old Act. C-31 Indians are therefore Indians who obtained their Status exclusively because of the amendments Bill C-31 made to the Indian Act, and who would not have had it otherwise. This group includes basically two categories of persons:    

 1) Indians who had lost their Status under the Old Act and who  had their Status restored only because of Bill C-3 1; and    

 2) the children of these persons born before the Act came into  force and who were not therefore eligible for Indian Status at  the time they were born but who became eligible for Status as  a result of Bill C-3 1.    

Of the 115,000 Indians who have acquired Status by virtue of Bill C-31 since 1985, a little over 23,000 fall in category (1), that is, they are persons who have had their Status restored; and the remaining 92,000 fall in category (2). [1] For all practical purposes, Bill C-31 establishes a regime that divides Indian people into at least four major castes:    

 1. Old Act Indians: Indians, mainly on reserve, who had Status  even before Bill C-31;    

 2. Restorations: C-31 Indians who have had their Status restored to them by virtue of Bill C-31;    

 3. First Generation Reinstatements: the children of C-31  Indians who had their Status restored; and    

 4. Non-Status Indians: persons of Indian ancestry who are not  eligible for Indian Status neither under the Old Act or Bill C- 31.    

Nominally at least, Indian Bands already knew all the people to whom Bill C-3 1 restored Indian Status. They had already once had Status; most had once lived on a reserve; many continue to have close relatives on the reserve. But the same could not be said of their children. By no means are all the persons in this second category of C-31 Indians children today - many would be adults by now - but they are all people whom had never previously had Status and whom, unlike restorations, the existing Status Indian communities do not know.