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On June 28, 1985, the Parliament of Canada passed Bill C-31 amending status, membership and other provisions of the Indian Act. These amendments are now part of the Indian Act and will, accordingly, have an impact on the status and membership of Indian people across Canada. All First Nations governments are assessing the impact these changes will have on their communities, while at the same time are formulating mechanisms by which they can accomodate these changes through an assertion of self-governing powers.
Bill C-31 was passed due to an effective lobby by those opposed to the old membership provisions of the Indian Act; provision which they said were discriminatory on the basis of sex and, therefore, contrary to the Canadian Charter of Rights. Parliamentarians in Ottawa agreed that the old provisions were discriminatory and needed to be changed. Consequently, Bill C-31 was passed on June 28, 1985 to rectify this situation.
The purpose of this article is to first summarize the basic elements of the Bill and then deal, in a more detailed way, with the specifics of each new provision. The intention of this article is not to approve or disapprove of the changes but to outline the provisions of Bill C-31 so that Indian governments can better understand the implications of whatever course of action they may take in the future.
The following is a summary of Bill C-31.
1. On the question of status, the Federal Government has retained the right to determine who is or is not a status Indian.
2. Those who lost their status prior to April 17, 1985, through discriminatory provisions under the old Indian Act, are entitled to apply to the Department of Indian Affairs to get their status back, if they are eligible.
3. Those who get their status back get their treaty rights but not necessarily their band membership rights.
4. With respect to band membership, some who get back their status will automatically get back their membership rights, while others will have to wait two years.
5. Many of those who lost their status through the sexual discriminatory provision will automatically get their membership back and be placed on the band list. Others, particularly first generation descendants of those who got their status and membership back, will have to wait two years to get their membership back.
6. Each First Nations government can take control over their own band lists and membership by following the guidelines outlined under the Indian Act. They can pass their own membership laws within two years from June 28, 1985, and these laws will then govern membership matters for their people.
7. If an Indian band takes control over its own membership within two years, then those who do not get their membership back automatically but have to wait two years, can apply to the Indian band directly to be admitted as members of that band before the two years are up. The band then decides on their membership.
8. If the Indian band does not effectively take control over its own membership within two years, then all those who were eligible to get their membership back can, after two years, apply directly to the Department of Indian Affairs to be placed on the band list and thereafter receive all the rights of band membership.
10. The Minister may create new bands at the request of those who want a new band.
11. The age of an elector has now been changed to eighteen, and the definition of a child includes one that is legally adopted or one adopted according to Indian custom.
12. Finally, the Indian government concerned can pass by-laws dealing with residency matters and what should be done with band monies for new members.
A full and more detailed summary of all the new changes is now outlined according to the appropriate sections under the Indian Act. An attempt has been made to make these changes more understandable by simplifying the wording and categorizing the various sections under subject headings.
A. STATUS: Those eligible to apply to the Department of Indian Affairs for their status or to be registered as Status Indians.
6(1)(a) Those who were status Indians or entitled to be status Indians just before April 17, 1985.
6(1)(b) Members of bands which may be created in the future by the Minister under s. 17.
6(1)(c) Those who had lost status through sexual discrimination.
(i) Those who lost status because his/her mother and father's mother gained status through marriage to an Indian (i.e. whose who lost status through the double mother rule).
(ii) Indian woman who lost status through marriage to a non-Indian under 12(1)(b).
(iii) Person who lost status because he/she was an illegitemate child of an Indian woman and non-Indian man.
(iv) An Indian woman and children order enfranchised through marriage to a non-Indian (involuntary enfranchisement).
6(1)(d) Indian men, their wives and children who lost their status through voluntary enfranchisement.
6(1)(e) Indian men, their wives and children who enfranchised to join the armed forces or gain employment.
6(1)(f) Persons both of whose parents are entitled to be registered under the above provisions.
6(2) Persons, one of whose parents are entitled to be registered under 6(1) above and not excluded by s. 7.
B. NO STATUS: Those persons not entitled to be registered.
7(1)(a) Women who gained status by marriage to an Indian but later lost status (non-Indian women cannot regain status once she's lost it).
7(1)(b) Child of a non-Indian woman who gained status by marriage to an Indian and whose father is not entitled to status.
11(1)(a) Those who were entitled to have their names on the band list prior to April 17, 1985.
11(1)(b) Members of bands which may be created in the future.
11(1)(c) Those who lost their status and band membership due to sexual discrimination under 6(1)(c) [the 12(1)(b)] women, involuntarily enfrancised persons, illegitimate children and those who lost status under the double mother rule.
11(1)(d) Children born on or after April 17, 1985, both of whose parents are entitled to be registered and be entered on the band list.
D. BAND MEMBERSHIP: Those persons who are entitled to be added to the band list 2 years after June 28, 1985, where the band has not taken control of its own membership and the band list remains with the Department.
11(2)(a) Those who are voluntarily enfranchised for purposes of military service or in order to obtain employment or otherwise voluntarily enfranchised, their wives and children.
11(2)(b) Children both of whose parents are entitled to be registered or a child one of whose parents is entitled to be registered and also entitled to band membership (1st generation descendants).
E. BAND MEMBERSHIP: Those persons who are entitled to be added to the band list maintained by the Department two years after June 28, 1985, if the band council consents.
12(a) Those persons entitled to status but not membership in the band.
12(b) Those persons from another band.
F. BAND MEMBERSHIP CONTROL: Provisions that recognize the right of the band to assume control over their own membership.
10(1) In order to assume control the band must:
(i) establish its membership rules or code in writing.
(ii) give notice of its intention to assume control of its membership.
(iii) obtain the consent of the majority of the electors to band control of its membership.
10(2) Once a majority of band electors have consented to the control over its own membership, it may:
(a) Establish membership rules for itself.
(b) Provide for a review mechanism (appeal procedure).
10(3) It is intended that the band can pass a by-law under s. 81 permitting all band members to vote on a membership code rather than just the electors.
10(4)(5) Membership rules cannot exclude from membership these persons who had a right to be entered on the band list immediately prior to the establishment of such membership rules. For example, those who had been on a band list before April 17, 1985, and those who got back their membership after having lost it under the sexual discriminatory provisions under s. 6(1)(c).
10(6) The band must give notice to the Minister that they intend to take control over their membership and they must supply him with a copy of the membership rules or codes.
10(8) The membership rules or code comes into force on the date the Minister is notified of the band's intention to take control and he has been supplied a copy of the rules or code.
10(10)(11) A band may thereafter add or delete a name from the list according their code but they must indicate the date persons were added or deleted.
G. REJECTING OR RELINQUISHING BAND MEMBERSHIP CONTROL
13.1 The band may decide, with consent of the majority of the electors, before two years from June 28, 1985, to leave control of membership in the Department.
13.2 The band may at any time after its assumed control, but with the consent of the majority of the electors, relinquish its control over membership.
14-14.3 Concerns band lists maintained by the Department and protests that can be made concerning any additions or deletions of membership to that list.
H. NEW BANDS
17 The Minister may amalgamate bands or create new bands upon request of those wishing to set up a new band. (Note: No provision in the Act for additional lands)
I. OTHER NEW STATUS AND MEMBERSHIP PROVISIONS:
"child" includes a child born in or out of wedlock, a legally adopted child and a child adopted in accordance with Indian custom. (might include non-Indian child)
"elector" means a person who: (a) is required on a Band List. (b) is 18 years old. (c) is not disqualified from voting at band elections.
5(5) Person who is entitled to status must apply to the Department to be registered.
18.1 A member of a band may reside there with his/her children.
20 of Bill C-31 Two years after June 28, 1985, the Minister must report to Parliament on the effect of the amendments, including their impact on the lands and resources of Indian bands.
64.1(1) Persons whose band membership is restored and who received a per capita share when they lost their status under the old Act [15(1)(a)] which is over $1,000.00, will not receive current distributions until the current distribution equals the amount previously received plus interest.
64.1(2) Where the band makes a by-law under s. 81(.4) bringing this section into force, a person restored to band membership is not to participate in the benefits from monies expended under capital or revenue monies for purposes outlined under s. 64(1)(b)-(k), 66(1), 69(1) until the monies from loss of status, over $1,000.00 are returned [ss. 64(1)(b)-(k), 66(1) and 69(1) deal with construction of roads, bridges, ditches and water courses, boundary fences, purchases of land, livestock, farm equipment, loans, housing, etc.
81 New by-law making powers of band council:
(p. 1) over reserve residency.
(p. 2) over rights of spouses and their children to reside with band members.
(p. 3) permitting the Minister to make payments out of capital revenue monies to persons whose names are deleted from the band list.
(p. 4) to bring 10(3) and 64.1(2) into effect. [10(3) - It is intended that under this provision the band could pass a bylaw permitting all band members to vote on a membership code rather than just the electors]
J. OTHER INDIAN ACT CHANGES:
68(a)(b)(c) Where one Indian spouse has deserted the other or his family, has conducted himself in such a manner that justifies the family leaving him or is separated from his family while in jail, the Minister can give monies that person was to receive from the Department to his family. (This might include desertion or separation by the wife.)
77(1)(2) When voting for chief or councillors, a band member's voting age has been reduced to 18 years.
81(1) The band council can pass a summary conviction by-law to deal with breach of by-laws passed by the band. The by-law can impose a fine up to $1,000.00 or jail up to 30 days or both.
81(2) In addition to penalties mentioned above, the court can make an order prohibiting the repetition or continuation of an offence (an order of prohibition).
81(3) In addition to the above penalties, upon request of the band council, the court can order that similar contravention be restrained. (a restraining order)
85.1(1) A band council can make the following liquor by-laws:
(a) prohibiting the sale, barter, supply of manufacture of intoxicants on a reserve.
(b) prohibiting a person form being intoxicated on a reserve.
(c) prohibiting a person from having intoxicants in his possession on the reserve.
(d) providing for exceptions to (b)(c).
85.1(2) Which must be first approved by the majority of the electors.
85.1(3) Once the by-law is approved by the majority of the electors, a copy must be sent by mail to the Minister within 4 days. (No provision for Minister to disallow a liquor by-law.)
85.1(4) Penalty provisions for breaking a liquor by-law:
(a) for an offence under 85. 1(1)(a) a fine up to $1, 000.00 or jail up to 6 months of both.
(b) for an offence under 85.1(1)(b) or (c) a fine up to $1,000.00 or jail up to 3 months or both.
90-100 The old liquor sections of the Indian Act are to be repealed six months after June 28, 1985. Provincial liquor regulations might apply thereafter or until the band council passes its own liquor bylaw under s. 85.1. Therefore, after December 28, 1985, all reserves will be wet reserves until band laws are implemented regulating liquor.
103 A peace officer or person from the Department who reasonably believes produce was illegally obtained by sale or barter; an offence was committed under the new liquor sections; or there was illegal trading or sales involving Indian people or property, can seize the goods involved in the suspected offence. (This section comes into effect on December 28, 1985.)
109-113 The old enfranchisement sections have been repealed.
119(2)(2.1)(2.2)(2.3) Truant officers who are trying to enforce the attendance of children at school will now require a warrent if they wish to enter an Indian home to look for and pick up Indian children.