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Band membership and who is an Indian is probably the most pressing problem facing Canadian Indians today. This matter drew the attention of the Canadian public in 1973 and everybody thought the question should have been answered at the time. Mrs. Jeanette Corbiere Lavell, a treaty Indian from an Ontario reserve, had been struck from the Register because she had married a non-Indian. The section in the Indian Act which empowered the Registrar to do as he did was s.12 (1)(b) which goes as follows:
The following persons are not entitled to be registered, namely:
(b) A woman who married a person who was, not an Indian, unless that woman is subsequently the wife or widow of a person described in s.11.
Mrs. Lavell then appealed this decision through the courts stating that the Registrar's decision was contrary to the Canadian Bill of Rights on the basis of sex discrimination. The Supreme Court of Canada, in 1973, upheld s. 12(1)(b) of the Indian Act.
Since that time, various groups have lobbied on Parliament Hill in an effort to have this section repealed. These groups insist that the Act discriminates against Indian women who lose their status when marrying non-Indians whereas Indian men marrying non-Indian women do not lose their status. The white women, in fact, gain Indian status. It now appears therefore quite conceivable that Parliament could repeal s.12(1)(b) of the Indian Act. The question that would then emerge would be what would be put in its place.
It is now obvious that the Government of Canada is intent on using every power at its disposal to eliminate Indian rights. The 1951 Indian Act, which is the one in force today, is a further erosion of previous membership legislation. Before 1951, an Indian woman marrying a non-status Indian would lose her status for purposes of the Indian Act, but she would, nevertheless, be given a "Red Ticket" which would entitle her to share in band revenues and treaty annuity payments. Her children, of course, could not share along with her. What is important about all this is a need to recognize that the Government of Canada is using the Indian Act to steadily erode the special constitutional status enjoyed by Indian people today. The Indian Act will be changed again. What will be the new provisions regarding membership?
The Indian Act provides that there be a Registrar in Ottawa who will determine who is and who is not an Indian. The Registrar, accordingly, adds or takes people off a list called the Indian Register. This Indian Register consists of both Band Lists and General Lists. People belonging to bands are listed in Band Lists and Indians without membership in a particular band are listed under the General List. The Registrar bases his decisions on powers given to him within the Indian Act. The issue in this regard is not who is actually an Indian, but who is registered as an Indian and who is entitled to be registered as an Indian according to the Indian Act. He also decides who is not registered or not entitled to be registered in the Indian Register. The Act does therefore not give a definition of who is an Indian but it rather provides a procedure. If an individual falls within the stated procedure in the Indian Act then that person is then an Indian for the purposes of the Indian Act. Band Lists are supposed to be posted so that everyone can see them in the Office of the Superintendent who serves that band. If somebody disagrees with the list, he can protest by notice in writing to the Registrar. The process is as follows:
1. The Registrar must be given the grounds upon which the addition or removal of the person from the list is questioned.
2. The protest must be launched within six months after the list has been posted or within three months after the name has been added or taken from a Band or General List.
3. In the case of a Band List, the Council of the Band will make the protest. Regarding General Lists, any adult person whose name is posted on there can protest. Generally speaking, however, any person who is added or taken away from either one of the lists can protest.
The Registrar will then see that an investigation is made and he will give a decision accordingly. The individual can appeal the Registrar's decision but he must do so within three months. If he fails to do this then the Registrar's decision is final. If he however wishes to appeal the decision, he must request the Registrar to refer the decision to a judge for review. The Registrar cannot refuse to make this referral. The judge sitting on review will be given all the powers of a Commissioner under the Inquiries Act. His decision will then be final and conclusive. The person requesting the judge to review the decision has the burden to show that the Registrar's decision was wrong. It should be noted here that in the case of a male person who has been added or taken away from a Band or General List, the wife and minor children are also dealt in the same way.
Section 11 of the Indian Act states who is entitled to be registered. A person is entitled to be registered if that person
1. Was considered to be entitled to hold, use or enjoy lands belonging to or given to tribes, bands or other bodies of Indians in Canada as of May 26, 1874. It was based on an Act called An Act Providing for the Organization of the Department of the Secretary of State of Canada and for the Management of Indians in Ordinance Lands.
2. Is a member of a band for whose use and benefit in common lands were set apart or have been agreed to by treaty to be set apart since May 26, 1874 or that has been declared by the Federal Cabinet to be a band within the Indian Act.
3. Is a male person who is a direct descendant in the male line of a male person described in 1 or 2.
4. Is a legitimate child of a male person described above or a person described in 3.
5. Is the illegitimate child of a female person described in 1, 2 or 4, however, the child must have had to be born after August 13, 1956. The addition to a band list of the illegitimate child can be protested within 12 months from the addition. If it is shown that the father of the child was not an Indian, then the child is not entitled to be registered. Once again, there can only be a protest if the child was born after August 13, 1956.
6. Of course, the wife or the widow of a person is entitled to be registered because of 1, 2, 3, 4 or 5.
Section 12 of the Indian Act lists those people not entitled to be registered. First of all, persons who have received or who have been allotted half-breed lands or money, scrip, are not entitled to be registered. (The above applies where the person is registered as an Indian after August 13, 1956.) Neither are their descendants entitled to be registered. People who have enfranchised are likewise taken off the Indian Register. (Enfranchisement will be discussed in detail at a later time).
The next situation to be discussed involves what has been called, for lack of a better description, the "Double Mother Rule".
Couple married after September 4, 1951
These children lose their status upon reaching 21
A person upon reaching his 21st birthday is not entitled to be registered if he falls within the following situation:
1. His parents were married after September 4, 1951,
2. His mother and his father's mother were originally not entitled to be registered.
Of course, if this person happens to be a woman and is a wife or widow of a person entitled to be registered, then she would also be reclassified as a registered Indian. But of course, as in the Lavell case, an Indian woman who marries a person who is not an Indian automatically loses her right to be registered as an Indian. However, an Indian woman can always regain her status by re-marrying an Indian man. Illegitimate children born after August 13, 1956 can lose their right to be registered if someone protests their addition to a Band List within 12 months after the addition.
Section 12(1)(b) has attracted the most attention in the Indian Act for bands across Canada. It states:
"The following persons are not entitled to be registered, namely, (b) a woman who married a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in section 11. Note: Section 11 listed all those people who were entitled to be registered as Indians."
This meant that if an Indian woman married a nonIndian person, be it a white man, Metis or other nonstatus person, she would immediately lose her right to be registered as an Indian under the Indian Act. Furthermore, her children will not be entitled to be registered and they would thereby lose all the rights and privileges attached to being a status Indian. However, a status man may marry a non-status woman with neither he nor his children losing Indian status. Furthermore, his wife will assume Indian status and be entitled to all the rights and privileges of a status Indian under the Indian Act. Note that another issue that affects membership is enfranchisement. Since this is a fairly involved matter, it will be discussed in a later chapter.
It is now apparent that the Indian Act does not provide rights to Indian people. It, however, has a procedure which will have the effect of taking away Indian status from certain individuals. There is absolutely no authority given to bands to decide the question of membership on their own. The total authority remains with the Government of Canada through its agent, the Registrar. This is a very different situation from that in the United States where the issue of band membership is decided by the Indian bands themselves. Each tribe has its own constitution which covers all matters which affect that particular tribe. All of these constitutions contain provisions regarding membership. In other words, tribes in the United States decide who is an Indian. It is not left to a Registrar as in the case in Canada.
This section reads as follows:
The Governor in Council may by proclamation declare that this Act or any portion thereof, except s.37 to 41 shall not apply to (a) any Indians or any group or band of Indians...
What this means is that Cabinet may declare, if requested, that the Indian Act will not apply to certain bands except those sections dealing with land surrenders. However, if the Indian Act is declared to not apply to a certain band, then the question arises, will provincial law apply to that band? It is perhaps possible at this stage for a band to declare its own "Indian government". This band could then devise. Its own criteria or ways to determine who is an Indian.
CHANGE THE INDIAN ACT
The Indian Act could be modified so that the by-law making powers are increased so that Indians themselves can determine membership. Those sections which presently deal with membership would, of course, have to be repealed or taken out.
LEAVE THINGS AS THEY ARE OTHER SUGGESTIONS CONCLUSION
The Indian Act cannot really be considered a source of Indian rights. Indian rights flow from the Royal Proclamation of 1763, the British North America Act and the treaties. What the Indian Act does is to provide a procedure so that the Federal Government can supposedly carry out its responsibility to Indians and lands reserved for Indians as set out in s.91(24) of the British North America Act. Parliament has absolute power to do whatever it wants with the Indian Act. Membership is presently the most critical issue and is one the Federal Government is intent on changing. The resolution of this question will have long-term effects the Indians in Canada. It is therefore most important that Indian people address their minds to this question so that is can finally be resolved to the satisfaction of all Indians.