Band Membership and Aboriginal and Treaty Rights

Existing Status Indian communities looked at the prospect of having to integrate C-31 Indians with some ambiguity. On the one hand, this would enable the consolidation of Status communities and their extension off reserve; on the other, existing communities were being asked to accept new members that they did not know and whom they did not necessarily wish to have. Partly to attenuate fears that Bands would be forced to accept all C-31 Indians in their membership, and partly to recognize the right of self-government, the federal government decided to give Bands a choice in the matter. Bill C-3 1 enables Bands to assume control of their Band List, if they chose, and henceforth to administer it according to the Band's own Membership Code. Though membership codes cannot exclude persons who were members of the Band before the code came into effect, [2]  they can exclude Status Indians who acquire their Status after it comes into effect. Furthermore, any Band that adopted a membership code before April 17, 1987 could exclude all those persons who had been reinstated since April 17, 1985, the date Bill C-31 came into effect, and whom would normally have been members of the Band, with the exception of persons in category (1), whom the Bill sought to protect. [3] The thrust of the legislation was clear:  Bands, if they so choose, could exclude C-31 Indians - and above all the children of formerly "enfranchised" Indians - from membership in their Band.    

This is the third major failing of Bill C-3 1. For it is all well and fine to talk of the control over membership as being a fundamental right of nations and of self- government, but when the Aboriginal right to self-government is used in such a way as to deny Aboriginal and Treaty rights to large numbers of Aboriginal people, there is something wrong. Bill C-31 threatens to do just that to C-31 Indians on a massive scale. Aboriginal and Treaty rights are not individual rights, but rights that an individual exercises only by belonging to a distinct Aboriginal people or nation. In allowing Bands to exclude Status Indians from membership in an Indian nation to which they would normally belong, the Bill places the Aboriginal and Treaty rights of persons thereby excluded into jeopardy. It is imperative to find a solution to this problem that is at once fair to reserve communities and to C-31 Indians and their descendants off-reserve.  

The principal reason a Non-Status Indian population continues to exist is that the new eligibility rules operate, as did the old ones, in such a way as to exclude persons of Indian descent from being recognized as Indians for purposes of the Indian Act. This Non-Status Indian population, though of Aboriginal ancestry, is in danger of falling through the cracks, and as belonging to no Aboriginal people or nation. There is no question that these persons are for the most part of mixed Indian/European descent, and, for constitutional purposes, the possibility always exists that they could be considered Metis. However, in the event that they are not, they will have even more of a problem being recognized as belonging to an Indian people, since, by definition, they are not affiliated with any particular Indian Nation or Band. This Non-Status population is in real danger of being denied its "aboriginality" and being merely subsumed into mainstream society. Is this not precisely the goal of the Indian Act regime and integrationist policy?     

If it is, then Aboriginal people are in for a rude awakening in the not too distant future, for the Non-Status Indian population disclosed by the 1991 Census will do nothing but grow once the reinstatement process has run its course and the full impact of the new Status rules make themselves felt. It does not take a genius to figure this out. We merely have to ask what would happen if all Status Indians alive today married a Non-Indian or someone without Status, and their children did the same: within two generations, there would be no Status Indians left in Canada. All persons of Indian descent would by then have fallen through the cracks and none would any longer belong to any Aboriginal group or First Nation. While this is unlikely to occur as quickly as in our hypothetical example, there is no question that, as more and more Status Indians form unions with persons other than Status Indians, the fewer Status Indians there will be in the succeeding generation, and the larger the Non-Status Indian population will become. The rate at which this will occur depends on the incidence of inter-marriage with Non-Indians of each successive generation, a calculation which I leave to demographic experts. The fact that the new rules now apply to descendants of males as well as females only serves to accelerate the process.     

Bill C-3 1 has served not to clarify but to confuse and obfuscate the issue of which Indians have rights and which do not. Under the Old Act, the rule of thumb was that Metis and Non-Status Indians had no rights and were not entitled to benefits under the Indian Act, while Status Indians had rights and could receive benefits. Under Bill C-31, we still have Metis and Non-Status Indians, and it is still the case that they are not recognized as having any Aboriginal and Treaty rights, nor can they access benefits under the Indian Act..   

However, the divorce of Status from membership in an Indian Band brought about by Bill C-31 means that we can no longer assume that even all Status Indians have rights and access to Indian Act benefits. In effect, the Bill establishes a new category of Indian - C-31 Indians - in respect to whom rights and benefits are left in limbo, if not outrightly denied.     

As previously noted, Aboriginal and Treaty rights are in the nature of collective rights, such as the right to self-government, or rights that a person can exercise or benefit from only by belonging to a specific collectivity or Indian Nation (e.g. hunting and fishing rights, treaty rights etc. . .). Bill C-3 1 allows these collectivities - Bands or First Nations - to exclude C-31 Indians, who, in the very act of obtaining Status, would normally be entitled to Band membership. What does this imply in terms of the recognition and affirmation of Aboriginal and Treaty rights of C-31 Indians? This is a question that is not easy to answer, and around which there is currently considerable debate and contention. Is Indian Status sufficient to establish that one belongs to an Aboriginal people? How can one claim to belong to an Indian Nation that officially denies you membership? How is it even possible to access Aboriginal and Treaty rights without being a member of an Aboriginal people, in this case, Indian Nation or Indian Band? The courts may ultimately find innovative ways to cut this Gordian knot, but in the meantime, C-31 Indians are left in limbo as far as the definition of their rights and benefits are concerned.     

It is imperative in our view to resolve this issue. This is true despite the fact that the category "C-31 Indians" is, by the very definition that the federal government has given it, bound to disappear. It will be recalled in this regard that the term "C-31 Indian" applies only to persons born before April 17, 1985 who would not have been eligible for Indian Status had it not been or Bill C-31. Eventually all persons born before April 17, 1985 will pass away, and so too will the "C-31 Indian" category as presently defined. Though not included in statistics on C-31 Indians at the present time, there will however be children born to C-31 Indians post 1985 and these descendants of C-31 Indians are no more likely to be accepted in Indian Bands than were their parents. Many may not even qualify for Indian Status under current rules. Assuming however that a significant portion do obtain Status,  the difficulty of defining the rights of Status Indians who are not members of Indian Bands will remain even after C-31 Indians as a category are long gone.     

It must be made clear that the issue is not whether Band's should or should not have the right to control their own membership. The issue is over the nature of membership.  Is membership an inherent right that should only be suspended under extraordinary circumstances and through due process; or is membership in an Aboriginal people, community or nation a prerogative right that only sovereign authority can confer on an individual? The Old Indian Act assume the former, while Bill C-31 is premised on the latter proposition. Hopefully, a way will be found that will permit reserve communities to control their own affairs without jeopardizing the Aboriginal and Treaty rights of Indians who trace their ancestry to that particular community or reserve but who no longer live there.   

The point is that the new Status rules that Bill C-31 imposes actually encourage the formation of a new Non-Status Indian population and, to this extent, they fit squarely within the continuum of the integrationist policies of the Indian Act regime. We must not let ourselves be distracted by the huge and rapid increase in the Status Indian population of  the last few years, particularly off-reserve. This phenomenon will pass and grow rates will decline to more normal levels once reinstatement has run its course. Nor should we take too much comfort in the fact that what is left of the Non-Status Indian population today and the Non-Status Indian population of tomorrow will at least not be composed of persons who had lost their Status. The new Non-Status Indian population will be made up exclusively of persons of Indian descent who cannot qualify for Status under the Indian Act. This is no reason to rejoice. The new eligibility rules for Indian Status will deny off-springs of Status Indians the opportunity to obtain Status for themselves, and many parents the right to pass on their heritage to their children. This is in many ways as pernicious as the old rules ever were.     

The time has come to consider alternative ways of dealing with the issue of Status, what it means and who should obtain it. While this is not the place to devise alternative solutions to Bill C-31 rules, there are few principles that any new solution should, in our opinion, respect: These are:     

 1. The federal government has no business telling Indian people  who is and who is not an Indian.     

 2. Status Indian communities should not fall into the trap of  trying to ensure the purity of their race: this is not only  morally reprehensible, it would ensure the extinction of their  community in the long run.     

 3. Eligibility for Indian Status should be based primarily on  having Aboriginal ancestry and self-identification with an  Aboriginal people.     

 4. Persons who meet these requirements should be entitled to  apply for membership in the Band of their ancestors, and  membership should be granted automatically by the Band upon  verification of ancestry.     

 5. All persons who are accepted as members of the Indian  Nation/Band should be accepted as Indians by the federal  government and recognized as Indians with legal rights  regardless of place of residence.