WHOSE RIGHTS? CURRENT AND FUTURE DEVELOPMENTS IN MEMBERSHIP

Transcription

1 1 WHOSE RIGHTS? CURRENT AND FUTURE DEVELOPMENTS IN MEMBERSHIP These materials were prepared by Joan Holmes, Joan Holmes & Associates Inc., Ottawa for Canadian Aboriginal Law 2002 National Forum held in Ottawa, Ontario, December 5-6, 2002.

2 2 WHOSE RIGHTS? CURRENT AND FUTURE DEVELOPMENTS IN MEMBERSHIP Table of Contents I. WHO ARE THE ABORIGINAL PEOPLE OF CANADA?...3 II. WHO DEFINES ABORIGINAL IDENTITY AND HOW HAS IT BEEN DEFINED?...5 III. ADMINISTRATION AND CHALLENGES...15 IV. THE LASTING LEGACY...22 V. CONCLUSIONS...25 BIBLIOGRAPHY...27

3 3 WHOSE RIGHTS? CURRENT AND FUTURE DEVELOPMENTS IN MEMBERSHIP I. WHO ARE THE ABORIGINAL PEOPLE OF CANADA? The simple answer to the question - who are the Aboriginal people of Canada? - is that they are the descendants of the people who have been here since time immemorial. In the mid-19th century, however, the dominant society developed a legalistic system of identifying and naming Aboriginal people. The earliest legal definition was very broad and inclusive; subsequent definitions were increasingly exclusionary dividing aboriginal people into various classes or categories of people with different rights. The legal categories are not, nor have they every been, consistent with the actual culture, history, ancestry or internal identification of Aboriginal people, but they have had a profound effect on aboriginal individuals and their communities. The perceived need to develop a legal definition reflects the dominant society's attitude toward Aboriginal people and the role the Crown adopted in relation to Aboriginal people. The Crown required legal definitions in order to identify the groups entitled to specific benefits as Aboriginal people and as treaty adherents. Throughout the last century and a half administrative attempts to maintain the legalistic categories has further complicated and entrenched the division between Aboriginal people. For statistical and other purposes, Canada divides the Aboriginal population into four categories: North American Indians registered under the Indian Act (the registered or status Indians); North American Indians not registered under the Indian Act (the so-called non-status people); the Métis; and the Inuit. According to 1991 census data, 60% of Canada's Aboriginal population were registered Indians, 15.6% were non-registered Indians, 19.3 % were Métis, and 5.2% were Inuit. 1 The Inuit have been counted in the Canada census as a separate and distinct people since at least There seems to be little confusion over their identity, possibly because of their geographic isolation and the fact that they were not subjected to the legislative 1 Royal Commission on Aboriginal Peoples (RCAP), Report, Vol. 1, (Ottawa: Canada Communication Group Publishing, 1996), Table 2.4. These figures are based on an adjustment of the data derived from the Canada Aboriginal Peoples question. Statistical information on Aboriginal people is highly problematic and difficult to compare between census years. For a discussion see RCAP Vol. 1 p. 15 and ftn 8 pp See also Statistics Canada, Profile of Canada's Aboriginal Population: Aboriginal Data. (Ottawa: Minister of Industry, Science and Technology, February 1995).

4 4 divisions applied to the other Aboriginal peoples. This paper will confine discussion to the situation of the status Indians, Métis and non-status people. Perhaps the easiest group to identify are the registered or status Indians, as these people have a specific legal status defined by legislation and are recorded in the official Indian register. Status Indians are further divided into those whose ancestors entered treaty with the Crown, often called "Treaty Indians", and those whose ancestors were not party to any of the major treaties 2, and consequently are "status Indians" but not "Treaty Indians". Historically, women with little or no Aboriginal ancestry have acquired Indian status through marriage; while status women who married non-status men and the children of those unions were denied status. Recent changes to the Indian Act under Bill C-31 divided status people, both treaty and non-treaty, into band members and non-members and created a situation in which people without Indian status can become band members. Furthermore, the C-31 amendments created different classes of status Indians who have more or less ability to pass on their registered Indian status to their children. Thus, while this population can be readily identified because of their unique legal status, their ancestry, family history and legal capacity is mixed and variable. Historically, the Métis people had their genesis in the regions of intense fur trade activity where they formed distinctive social groups with a particular culture and history. While the most well-known of these groups were the Métis of the Red River, Métis settlements also grew up around the upper Great Lakes and at other locations across the prairies. Historically, the various groups were known as halfbreeds, Métis, English Métis, Scotch Métis or Métis écossais, bois brulés and coureur de bois. The Cree refer to them as Otepayemsuak, meaning the 'independent ones'. 3 The 1981 Canada census defined this group as, "... descendants of people of mixed aboriginal and European ancestry who formed a distinct socio-cultural entity in the nineteenth century." 4 This official definition asserts that "The Metis have gone on to absorb the mixed offspring of native Indians and groups from all over the world." 5 2 Many "non-treaty Indians" consider that their ancestors had peace and friendship treaty relations with the Crown, however, they are not considered Treaty Indians in the same sense as those who are in receipt of treaty annuity payments flowing from the numbered treaties. 3 RCAP, Report of the Royal Commission on Aboriginal Peoples, Perspectives and Realities,Vol. 4 (Ottawa: Canada Communication Group Publishing, 1996), p Statistics Canada, 1981 Census of Canada, Canada's Native People (Ottawa: Minister of Supply and Services Canada, June 1984), p. 1. Unlike earlier census, in the 1981 census respondents could trace their ancestry through both their paternal and maternal lines, therefore, for the first time respondents could give multiple answers to the ethnic origin question. 5 Statistics Canada, 1981 Census of Canada, Canada's Native People, p. 1.

5 5 Like the Métis, many non-status people are of mixed Aboriginal and non-aboriginal ancestry, but are not historically associated with the Métis communities that formed during the fur trade era. For the most part, non-status communities consist of people who have been denied recognized Indian status. Many non-status people and their organizations have used both the "non-status" and "Métis" terms to describe themselves, however, as Joe Sawchuk notes in his study of Alberta Métis, "[i]t is by no means clear that people living in the eastern parts of Canada would be accepted as Metis by those Metis living in the prairies...". 6 Sawchuk differentiates between the Métis, a historically distinct Aboriginal group, and the non-status Indians who he describes as a "residual legalistic category" 7 The 1981 census definition incorporates this thinking when it described non-status Indians as "native people who identify themselves as Indians, but are not registered for the purposes of the Indian Act." 8 Historically, communities of non-status Indians have been formed as the result of different historical circumstances including status / non-status marriages, loss of Indian status, and the absence of a treaty or administrative relationship with the Crown. II. WHO DEFINES ABORIGINAL IDENTITY AND HOW HAS IT BEEN DEFINED? From time immemorial First Nations distinguished their own people from all outsiders. They determined who would live amongst them, who would be welcomed as visitors, who would be adopted into their communities, who would be excluded, and who would be considered friends and enemies. When new communities were born out of the mixing of Aboriginal and non-aboriginal peoples, the fledgling communities were as clear on their own identity as were those around them. Identity and belonging became a legal issue when British and then Canadian parliaments passed legislation codifying the relationship between the Crown and First Nations and defining special rights and obligations. When British parliament began passing Indian legislation in the mid-19th century they seized the authority to define Aboriginal identity. Successor governments did not loosen their hold on this assumed authority until Canada passed Bill C-31 more than a century later in Bill C-31 amended the Indian Act 6 Joe Sawchuk, The Dynamics of Native Politics: The Alberta Metis Experience. (Saskatoon: Purich Publishing, 1998), p. 19. For an excellent discussion on the diverse nature of Métis communities and history see RCAP, Vol. 4, pp Sawchuk, p Statistics Canada, 1981 Census of Canada, Canada's Native People, p. 1.

6 6 giving First Nations the opportunity to determine their own membership but retaining the Crown's authority to control registered Indian status. The Imperial government's first official definition of who was an Indian was contained in an 1850 statute that defined an Indian as any person of Indian blood, their descendants on both the maternal and paternal side, those who married into their communities and lived amongst them, and anyone adopted in infancy who continued to live with them. 9 The following year a more restrictive definition excluded non-indian men who married Indian women. 10 Shortly thereafter, legislation was introduced specifically intended to encourage Indians to give up their Indian status. 11 With the passage of the Constitution Act, 1867 (formerly the British North America Act), "Indians and lands reserved for Indians" came under the legislative authority of the federal parliament pursuant to section 91(24). 12 Two years later, the 1869 Enfranchisement Act declared that women who married non- Indians and the children of those unions were no longer considered Indians in the meaning of the Indian Act. 13 The introduction of this criterion for legal Indian status precipitated the growth of a group of people of Aboriginal descent that were not recognized as status Indians; some of these people identified themselves as Métis, others as non-status Indians. It should be noted that while all of these people were excluded from Indian status they were not necessarily of mixed Aboriginal and non-aboriginal ancestry as men from whom legal status was taken could be Aboriginal but not recognized as status Indians. 9 An Act for the better protection of the Lands and Property of the Indians in Lower Canada. Statutes of Canada 1850, c. 42 (13-14 Vict.) section V. 10 An Act to repeal in part and to amend an Act, intituled, An Act for the better protection of the Lands and Property of the Indians in Lower Canada. Statutes of Canada 1851, c. 59 (14-15 Vict.). 11 Act for the Gradual Civilization of the Indian Tribes in the Canadas. Statutes of Canada 1857, c. 6 (20 Vict.). 12 Canada has consistently taken the position that Métis are not included under section 91(24) of the Constitution Act, 1867 and consequently they do not consider Métis to be embraced by their jurisdiction over "Indians and land reserved for Indians". Métis organizations have put forth the argument that they are included in the term 'Indian' and are being wrongly denied social benefits that accrue to other Aboriginal people. The RCAP report contends that Section 91 (24) should be interpreted to include Métis. RCAP, Report of the Royal Commission on Aboriginal Peoples, Perspectives and Realities, Vol. 4, p Act for the gradual enfranchisement of Indians, the better management of Indian Affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42. Statutes of Canada 1869 c. 6 (32-33 Vict.) Section 6. This section also declared that a woman who married out of her tribe or band would henceforth belong to her husband's tribe or band.

7 7 The Métis of the west were treated as a distinct group by the Crown in this period. For example, the Manitoba Act, 1870, recognized the Aboriginal rights of Métis by granting land to "the children of half breed heads of families." The act did not contain a more precise definition of the recipients suggesting an assumption that "half breed heads of families" were men who were clearly distinct from both Indians and non-aboriginals. 14 During treaty negotiations in the closing decades of the 19th century, people of mixed blood were given the choice of entering treaty or taking scrip. During the negotiation of Treaties 1 and 2, the treaty commissioner gave any man he knew to be of mixed blood the choice of being "classed with Indians" and coming into treaty in which case he would not be eligible for halfbreed grants under the Manitoba Act. The choice also applied to the man's wife and children. 15 A similar approach was taken when Treaty 3 was negotiated in Metis were told that "halfbreeds" who had been paid annuity under the treaty could join other Treaty 3 bands but could not be recognized as separate bands or receive separate reserves. 17 This reflects the Crown's thinking that mixed-blood people could be received into treaty if they lived amongst Indians. In this way, Métis who chose to accept treaty were officially incorporated into Indian bands and ultimately became recognized as status Indians. The choice to take scrip identified them officially as Métis. The 1876 Indian Act incorporated existing legislation affecting Indians and Indian land and introduced an even more restrictive definition of who would be consider an Indian by excluding illegitimate children, persons absent from Canada for more than five years, and those who had taken scrip. 18 The 1876 membership provisions, the most comprehensive and restrictive of any legislation to date, were to remain essentially intact for more than a century. This legislation gave Indian status to non-indian women marrying Indian men and took Indian status away from Indian women who married non-indian men. Only the children of Indian men were recognized as Indians. The criteria for recognizing status 14 Sawchuk, p Wemyss M. Simpson, Indian Commissioner, to the Secretary of State for the Provinces, November 3, 1871, in Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories, including the Negotiations on which they were based, and other information relating thereto (Saskatoon: Fifth House Publishing, 1991), p Extract from Manitoban, published October 18, 1873, in Morris, p Wayne Daugherty, Treaty Research Report: Treaty Three (Ottawa: Treaties and Historical Research Centre, Department of Indian and Northern Affairs, 1983), pp and L. Vankoughnet, Deputy Superintendent General of Indian Affairs, to J. A. N. Provencher, Acting Indian Superintendent, August 30, NAC RG 10 Vol File S.C c. 18 (39 Vict.) Section 3.

8 8 was based on the contemporary British legal principle that children took their legal status from their father and women from their husband. That system of tracing descent was imposed on all First Nations regardless of their own traditions and practices and in the face of their objections. The membership provisions of the Indian Act reflected the central purpose and intentions of Indian policy. Firstly, the Dominion's Indian policy was built on a strongly held belief that Aboriginal people should and would become integrated into mainstream society. This was seen as a desirable goal that would be embraced by First Nations, thus the emphasis on elaborate provisions for voluntary and involuntary enfranchisement. 19 Secondly, registered Indian status was directly tied to band membership 20 which gave individuals rights to reserve land and resources. By controlling and restricting membership, the Crown controlled the use and occupation of reserve land. Reserves were historically viewed as a temporary solution to protecting and providing for the Aboriginal population on a communal basis until they were prepared to integrate into mainstream society. 21 From the Crown's point of view, successful integration or assimilation was in part measured by the willingness of First Nation members to yield their communal systems of land holding and adopt individual property tenure The assumption that integration or assimilation was an appropriate goal for Aboriginal people was fundamental to Indian administration since the early nineteenth century. See Joan Holmes, "The Original Intentions of the Indian Act," Beyond the Indian Act Conference, Pacific Business and Law Institute, Ottawa, April 17-18, This principle persisted well into the twentieth century. See, for example, the 1948 recommendations of the Special Joint Committee which favoured the Crown maintaining exclusive control of membership and providing for the compulsory enfranchisement of Indians. The official goal changed from assimilation to integration. John Leslie, "A Historical Survey of Indian-Government Relations, ," prepared for Royal Commission Liaison Office, December 1993, pp. 12 and 16. This goal was most strongly expressed in the Trudeau government's 1969 White Paper which advocated the termination of special Indian status. 20 Historically, a very small number of status Indians did not have membership in any Indian band, in the meaning of the Indian Act; they were registered on a general list. There were less than 100 people on the general list prior to the passage of Bill C See, for example, C.P. Sessional Papers No. 23 (34 Vict. 1871), Annual Report for 1870 of the Indian Branch of the Department of the Secretary of State for the Provinces, p. 4: Report of the Deputy Superintendent General, William Spragge, 2 February John Leslie and Ron Maguire, eds., The Historical Development of the Indian Act (INAC, Treaties and Historical Research Centre, 1978), pp Edgar Dewdney, Indian Commissioner, Manitoba and the North West Territories, to Superintendent General of Indian Affairs, November 17, Canada, Annual Report of the Department of Indian Affairs for the year ended 31st December, 1886 (Ottawa: Maclean, Roger & Co., 1887), p Superintendent General of Indian Affairs to Governor General of Canada, January 1, Canada, Annual Report of the Department of Indian Affairs for the year ended 31st December, 1889 (Ottawa: Brown Chamberlin, Printer to the Queen's Most Excellent Majesty, 1890), p. xvi. Hayter Reed, Indian Commissioner, to Superintendent General of Indian Affairs, October 31, Canada, Annual Report of the Department of Indian Affairs for the year ended 31st December, 1889 (Ottawa: Brown Chamberlin, Printer to the Queen's Most Excellent Majesty, 1890), p. 165.

9 9 Schemes to induce individual land holding and the wholesale surrender of large portions of reserve land were tied to the ultimate goal of bringing reserve land back into the mainstream system of land tenure. After the Indian Act came into force in March 1876, treaty commissioners appear to have been stricter in the distinctions they made between Indians and mixed-bloods. They did not strictly apply the membership rules but instead accepted all persons who were existing members of bands unless they were clearly identified as halfbreeds who were somehow perceived to be apart from the bands. For example, during the negotiations for Treaty 6 23 at Fort Carlton, Commissioner Morris responded to Chief Mistawasis' requests to include mixed-bloods by distinguishing between the "Half-breed people and the Indian Half-breeds who lived amongst the Indians as Indians." The "half-breed people" were not to be taken into treaty, while those that lived as Indians would be considered on a case by case basis. 24 Later, Morris asserted that there were three types of mixed-bloods: those that lived in settled communities; those who live amongst Indians as Indians; and those who did not farm and followed the buffalo. According to Morris, only those who lived amongst the Indians were recognized as Indians. 25 Similarly, requests for halfbreeds to be taken into treaty in the Treaty 4 area in 1876 were generally rebuffed by officials who asserted that only those living among the Indians and relinquishing claims to halfbreed land and scrip could be considered for admission into treaty. 26 Treaties 8 (1899), 10 (1906), and 11 (1921) dealt separately with Indians and mixedblood people giving mandates to commissions to deal with the so-called "Half-breed Claims" by taking applications from mixed-blood people for halfbreed scrip as an alternative to treaty. In general, the commissioners relied on people of mixed-blood to 23 The 1876 Indian Act came into force in March Treaty 6 was negotiated in August and September The records of the treaty negotiation do not make any reference to a discussion of the terms of the Indian Act or how it might affect those coming into treaty. 24 Morris, Treaty Commissioner, to David Laird, Minister of the Interior, December 4, 1876, in Morris, pp See also p Morris, pp According to the membership provisions of the Indian Act halfbreeds would be eligible for membership only if they were the children of Indian fathers and non-indian mothers. At that point in history most mixed-bloods were the children of Indian women and white men and as such would not be eligible for Indian status. 26 Inspector Walsh to Minister of Interior, September 12, Special Appendix D, Canada, Annual Report of the Department of the Interior for the year ended 30th June, 1876 (Ottawa: Queen's Printer, 1877), pp. xxxvii-xxxix. Dickieson to Minister of Interior, October 7, Canada, Annual Report for year ended June 30th, 1876 (Ottawa: Queen's Printer, 1877), pp. xxxi-xxxvi.

10 10 identify themselves and make a choice of either entering treaty or taking scrip. 27 While mixed-bloods could choose to take treaty or apply for scrip, the ultimate decision remained with the Crown. Like the situation in Treaty 6, described above, people who were part of bands at the time of treaty were accepted without scrutinizing their ancestry and eligibility for status as per the membership provisions of the Indian Act. In later years, the Indian Department took action to cull ineligible people from treaty paylists and band membership. 28 These actions further contributed to the growth of Aboriginal communities and families that were not recognized as status Indians; again, some of the excluded people identified themselves as non-status Indians, others as Métis. Throughout the prairies people were officially recognized as Métis when they chose to take halfbreed scrip. Decades later, Alberta's 1938 Metis Betterment Act defined a Métis person as "... a person of mixed White and Indian blood but does not include either an Indian or a Non-treaty Indian as defined in the Indian Act." Two years later, amendments introduced the criteria of one-quarter Indian blood, however, this definition was not widely accepted by Métis. 29 When the legislation was re-drafted as The Metis Settlement Act, 1990, a Métis person was defined as a "person of aboriginal ancestry who identifies with Metis history and culture." 30 This is one of the few Crown-generated definitions that acknowledges the importance of self-identification as a key criterion. Neither Canada nor any other province has attempted to arrive at a workable definition. RCAP recommended that Métis be defined based on self-identification and acceptance and recognition by a Métis organization which will represent him/her in intergovernmental negotiations. 31 The above summary demonstrates how the Crown seized the authority to define who is considered an Indian and has dealt with the identification of Métis to a less extent. The non-status people have been regarded as a residual class of Aboriginal people, being 27 Dennis Madill, Treaty Research Report: Treaty Eight (Ottawa: Treaties and Historical Research Centre, Indian and Northern Affairs Canada, 1986), pp K. S. Coates and Wm. R. Morrison, Treaty Research Report: Treaty Ten (1906) (Ottawa: Treaties and Historical Research Centre, INAC, 1986), pp. 30, K. S. Coates and Wm. R. Morrison, Treaty Research Report: Treaty Eleven (1921) (Ottawa: Treaties and Historical Research Centre, INAC, 1986), pp Shortly after the Blackfoot-speakers of Treaty 7 were settled on their reserves a substantial number of families were struck off the treaty paylists. The Robinson-Superior and Robinson-Huron lists were examined and many people excluded by the Macrae investigation in Similar action was taken in Treaty 8 by the McDonald Commission in the 1940s. 29 Sawchuk, pp Sawchuk, p RCAP, Report of the Royal Commission on Aboriginal Peoples, Perspectives and Realities, Vol. 4, p. 203.

11 11 described largely by who they are not. They are not recognized as status Indians and are historically distinct from the Métis. Regardless, drawn together by Aboriginal roots and their common exclusion from registered Indian status and the benefits which accrue from that recognition, the non-status and Métis peoples have worked together in organizations to improve their social and political conditions. Lobbying by the Native Council of Canada and provincial non-status and Métis organizations achieved the recognition of Métis as one of the Aboriginal peoples of Canada under Section 35 of the Constitution Act, While the RCAP report argues that all Aboriginal peoples, not just Indians, Inuit and Métis, are covered by Section 35, the Crown does not accept that non-status people are included in the definition. 32 In his detailed study of Métis political organizations in Alberta, Sawchuk contends that the inclusion of Métis and the exclusion of non-status people was "one of the forces that split the Metis and Non-Status coalitions, causing many members of the organization who had previously thought of themselves as Metis to rethink their identity." 33 This phenomenon was not limited to Alberta; in Ontario, for example, several communities which formerly identified their members as Métis and non-status Indians have adopted community names that recall their tribal origins and avoid using either the Métis or non-status nomenclature. 34 Bill C-31 amended the Indian Act in For the first time since the Crown assumed the right to define Indian membership in the mid-19th century, First Nations could choose to take control of their own membership by writing membership codes and defining membership criteria according to community values. 35 This amendment has given communities the legal authority to define their own membership including the right to confer membership on individuals who do not have registered Indian status under the Indian Act. Under Bill C-31, the Crown retained the authority to define who is and who is not a status Indian and to administer the Indian register, however, some important changes 32 RCAP, Report of the Royal Commission on Aboriginal Peoples, Perspectives and Realities, Vol. 4, p. 208 and ftn 4, p Sawchuk, p Four examples are the Ardoch Algonquins, Kawartha Nishnawbe, Antoine First Nation and Bonnechere Algonquin Community. 35 Codes must meet certain standards. For example, people with 6(1) status are given automatic band membership, acquired rights are protected and codes must meet Charter conditions.

12 12 were made to the eligibility rules. The act was amended so that women are no longer stripped of status for marrying out, men no longer transmit status to a non-status wife upon marriage, and enfranchisement has been eliminated. Many people who lost status can be reinstated and their children can be registered for the first time. The creation of different categories of status Indians has created complex divisions and changed the way in which people can pass status on to their children. Some status people are registered under section 6(1). This includes: women who lost status by marriage and children enfranchised with them; children born outside marriage who lost status through protest; women and men who lost status because both their mother and paternal grandmother gained status through marriage (double mother clause); and those enfranchised upon application, or prior to the 1951 Act. Children of those registered under section 6(1) are also registered under 6(1) only if both parents are eligible for 6(1) registration, otherwise they will be registered under section 6(2). As 6(2) registrants they will have fewer rights and less ability to pass status to the next generation. People registered under 6(2) can only pass status rights to their children if the other parent is also registered either as a 6(1) or 6(2). As mentioned above, First Nations now have the statutory right to control their own membership, however, the amended act makes some stipulations as to who must be given band membership rights. Thus, status Indians are divided into two categories: those who are automatically entitled to be band members, and those who are conditional members. The following are automatically and immediately entitled to be band members. 36 Note that all of these people are eligible for registration under section 6(1): women who lost status because they married a man without Indian status and any children enfranchised along with them; children born outside of marriage to a status woman, whose registration was protested because the alleged father was not a status Indian; women and men who lost status because their mother and paternal grandmother had gained status through marriage; 36 For a complete discussion of band membership rules see Native Women's Association of Canada, Guide to Bill C-31: An explanation of the 1985 amendments to the Indian Act (Ottawa: Native Women's Association of Canada, 1986) or Native Council of Canada Indian Act Secretariat, Guidebook #2: Protecting Your Rights (Ottawa: Native Council of Canada, 1986).

13 13 children born after the new Indian Act both of whose parents are members of the same band. The following people are granted conditional band membership. Some are eligible for registration under section 6(1) and some under section 6(2): women and men who were enfranchised upon application or under various sections of pre-1951 Indian Acts, both eligible under section 6(1); children whose parents belong to different bands, eligible under section 6(1); children only one of whose parents belongs to or is eligible to belong to a band. This category will include those eligible under section 6(1) such as children who were protested and those eligible under section 6(2) such as the children born to Indian women and their non-status husbands. If a band decides to leave control of membership with the Department of Indian Affairs people with conditional membership will be placed on the band's list by the Departmental registrar. If the band decides to take control over its own membership these people may be excluded by the band's membership code. Bands can write their membership codes in such a way as to grant membership to people who are not eligible for registered Indian status. Prior to Bill C-31 almost all registered Indians were members of Indian Act bands and all officially recognized members of bands were status Indians. The new rules have created three possible combinations: people with registered Indian status and band membership; people with registered Indian status but no band membership; and band members who are not registered Indians. Bill C-31 did not make registration possible for all Aboriginal people. Those not eligible included: the descendants of people who accepted half-breed land or money scrip, unless entitled under another provision; descendants of families or entire bands that were left off band lists or were never registered; some women who gained status through marriage and then lost it and the status of their children, for example by marrying and then divorcing a status man and remarrying a non-status man; many of the grandchildren of people who lost their status, commonly referred to as the second generation cut-off. The grandchildren of persons who lost their status and are reinstated under Bill C-31 can only be registered as Indians if both parents have status

14 14 under section 6(1) or 6(2) or one parent has status under 6(1). (The long term implications of this rule will be discussed later in this paper.) As discussed above, although these people are not eligible for registered Indian status it is possible that they could become members of an Indian Band that controlled its own membership. Some people who were formerly excluded by the Indian Act and identified themselves as non-status Indians or Métis became eligible for Indian status under the amended act. The decision to become registered under the Indian Act has been a contentious one for people who strongly identify with their Métis or non-status communities. Some communities of non-status people are now made up of a mixed membership, some being newly registered under the Indian Act and others who are not either because they were not eligible or because they chose not to seek registration. For the most part these people, whether registered or not, continue to identify with the non-status communities which they and their families have been associated with for many generations. 37 According to official statistics, the Aboriginal population grew from about 490,000 individuals in 1981 to anywhere from 626,000 to just over 1,000,000 people in The census data indicates that six years after the amendments to the membership provisions of the Indian Act, 15.6 percent of the Aboriginal population identified themselves as non-status Indians, and 19.3 percent said they were Métis. 39 The 1981 census data was strikingly similar with 15.3 percent self-identified as non-status Indians and 20.0 percent as Métis. 40 While the census data collection has been problematic, it suggests that the 1985 membership amendments have had little impact on the distribution of Aboriginal people between the different categories. 37 Examples with which the author is familiar include: Kawartha Nishnawbe, Antoine First Nation, Bonnechere Algonquin Community, and Ardoch Algonquins. 38 Statistics Canada, 1981 Census of Canada, Canada's Native People, Table 1; and RCAP, Report, Vol. 1, p. 15. The total self-reporting population of Aboriginal people was 491,460. The 1991 Canada census and Aboriginal Peoples Survey (ABS) counted the Aboriginal people in Canada as 626,000 to 1,000,000. The larger figure was based on the cultural origins and ancestry question posed in the census, while the smaller figure derived from the ABS which focused on those who identified with their Aboriginal ancestry. This data should be viewed with caution as both the 1981 and 1991 census suffer from under-reporting. 39 RCAP, Report, Vol. 1, calculated from Table 2.4. These figures are based on an adjustment of the data derived from the Canada Aboriginal Peoples survey. According to the 1991 APS adjusted census registered Indians comprised 60% of the Aboriginal population and Inuit accounted for 5.2%. 40 Statistics Canada, 1981 Canada Census, Canada's Native People, chart 2 and p. 1. According to the 1981 census, registered Indians comprised 59.6% of the Aboriginal population and Inuit accounted for 5.2%. This data should be viewed with caution as both the 1981 and 1991 census suffer from underreporting.

15 15 Historically, two Crown-controlled mechanisms have contributed to the separation of Aboriginal people into legally defined classes - the treaty process that distinguished between Indians and Métis (or halfbreeds), and Indian Act legislation that excluded many people of Aboriginal descent from registered status and band membership. Since Bill C- 31 Indian bands have the opportunity to take control over their own membership and bands can now include both status and non-status members. Changes to the act have not changed the legal status of many Métis and non-status Indians, while some individuals have had their Indian status reinstated along with some of their children. The new structure of status and membership has created different classes of status Indians with unequal ability to pass their status on to their children. III. ADMINISTRATION AND CHALLENGES The foregoing section outlined the manner in which legislation took control of the definition of Aboriginal identity resulting in a complexity of legal classes. This section will briefly address how administrative practices exacerbated the division between status, non-status and Métis despite challenges from First Nations. From the earliest period, Aboriginal people resisted the exclusionary membership rules of the Indian Act. For example, the General Council of Ontario and Quebec protested the enfranchisement of Indian women in 1872 calling for an amendment so that: "Indian women may have the privilege of marrying when and whom they please without subjecting themselves to exclusion or expulsion from the tribe." 41 Similarly, the Six Nations Head Chief proposed that any person with an Indian parent who was said to have an interest in communal property of a band should be recognized as having Indian status. 42 The historical record contains several instances of Treaty bands petitioning the Crown to include mixed-bloods in their bands despite the provision of the Indian Act. The Crown refused the pleas of a Treaty 4 chief to have several hundred mixed-bloods paid treaty with his band in In the Treaty 6 area, chiefs petitioned in 1889 to have the 41 Chairman, General Indian Council (Napanee), to the Minister of the Interior, June NAC RG 10 Vol File Indian Act drafted by Chief J. S. Kerr enclosed in a memorandum addressed to Deputy Superintendent General Vankoughnet, NAC RG 10 Vol File NAC RG 10 Vol File 28,550-1.

16 16 children of halfbreeds who had withdrawn from treaty paid their annuities until they were of age and could decide for themselves whether to remain in treaty as Indians or withdraw and take halfbreed scrip. They believed the proposed system would be more in keeping with the spirit of the treaty than requiring children to withdraw with their parents. The Indian Commissioner rejected their proposal stating that children had to have the same status as their parents and that their treaty rights were forfeited when the parents withdrew from treaty. 44 Besides controlling Indian status and band membership as per the membership provisions of the Indian Act, the Indian Department controlled the payment of annuities under Treaty and maintained the annuity paylists which were treated as band membership lists. From an early period Indian Department officials claimed that treaty annuities were a band right rather than an individual right, that Indians could not be recognized as members of two bands and could not collect benefits from more than one treaty. 45 Indians were discouraged from moving between treaty areas and agents were instructed to pay annuitants on their own reserves only. 46 Furthermore, after the time when the initial treaties were signed, the Department exercised control over who could and who could not join or withdraw from treaty. They followed the principle that mixed-blood people who were not living as Indians should be encouraged to withdraw from treaty and give up all rights in reserves and band property. 47 In addition, the principle that women took their status from their husband was applied to treaty benefits. A woman who received treaty benefits would lose those benefits if she married a non-treaty man and could not pass them on to her children. 48 This rule was applied even in cases where the husband was a status, but non-treaty person. In addition, adhering to its policy that treaty rights were a band right, the Department decided that 44 NAC RG 10 Vol File 1239 Pt See for example, NAC RG 10 Vol File 170,073-1 regarding an 1896 investigation of Robinson Huron treaty annuitants living on Manitoulin Island and NAC RG 10 Vol File 21,233 containing an 1885 Indian Commissioner's circular on this topic. 46 See, for example, NAC RG 10 Vol File 17,603 regarding Indians from Manitoba Superintendency circa 1879 and NAC RG 10 Vol File 6441 regarding Indians from Treaty 5 circa NAC RG 10 Vol File 24,303-2A. 48 NAC RG 10 Vol File 577/3-3 regarding status of women marrying non-treaty men circa A woman in this position could choose to take ten years' commutation of her treaty benefits or could opt to receive the treaty annuity payments during her lifetime. Women who made that choice were known as "red ticket" women. The right to treaty annuities was not passed on to the children of that union and often any minor children that a woman brought into her marriage also lost their treaty rights.

17 17 those who it determined were not qualified for Indian status and band membership could not collect treaty annuity payments. 49 A Special Joint Committee of the Senate and the House of Commons was appointed in May 1946 to investigate First Nation conditions and consider revisions to the Indian Act. Many First Nations made submissions to the committee expressing their frustrations with the act, some of which concerned membership issues. For example, a representative from Manitoulin Island and the North Shore District referred specifically to how the Crown tied the right to treaty annuity payments to status and band membership. In this case they protested the practice of denying treaty payments to women who had married non-treaty men stating, "The mere act of their marriage could never alter this fact, namely, that they still were descendants of the original signers of the Robinson Treaty, to which signers and to their descendants the annual payments were promised." 50 Some chiefs stated that they wanted greater authority over band membership issues including the right to expel non-indians from reserves. 51 Many of the Special Committee's recommendations, such as continued Ministerial control over membership, enfranchisement and band creation issues, found their way into draft legislation which was ultimately withdrawn because of First Nation protest. When the Minister of Citizenship and Immigration met with Alberta and Saskatchewan Indian groups in the fall of 1950, he heard their objections to the Chief and Council's lack of control over band membership and the persistence of involuntary enfranchisement. In addition, they feared that many current members would lose their Indian status, and thus treaty status, when the official band lists were compiled by the Department of Indian Affairs. 52 While the Special Committee was formulating recommendations that led to the consolidation of Indian legislation in the 1951 Indian Act, departmental officials were instructed to create an official Indian register. 53 Prior to this period the Indian 49 Many such cases were explored by McCrimmon in his investigation of Lesser Slave Lake and by the Macdonald Commission in Special Joint Committee of the Senate and the House of Commons, appointed to continue and complete the examination and consideration of the Indian Act, Minutes of Proceedings and Evidence, (SJC, MPE) May 22, Leslie, "A Historical Survey of Indian-Government Relations, ," p Leslie, "A Historical Survey of Indian-Government Relations, ," pp NAC RG 10 Vol File 1/3-3-2 Vol. 1. Malcolm McCrimmon who had conducted the review at Lesser Slave Lake was appointed to oversee the compilation and revision of the membership lists.

18 18 Department had relied on treaty paylists and an assortment of unofficial lists of band members to identify and keep track of individuals entitled to band membership, treaty annuity payments and recognized Indian status. By their own admission that system was problematic and the Department, although managing treaty payments and band benefits for decades, was aware that it did not have an accurate register of entitled Indians. 54 The new lists were to be compiled from existing records, including treaty annuity paylists, interest distribution paylists, agency correspondence, and any other documents that contained information about band members. 55 After being compiled the band lists were posted in communities and community members were given an opportunity to ask to have names added or deleted. Protests and submissions had to be supported by at least ten members. The posting of band lists led to controversy and factionalism on some reserves. Issues were raised over the inclusion of people descended from individuals who had taken scrip and the exclusion of women who continued to get treaty payments under "red tickets". 56 At least one band protested the entire process, stating that it did not want the issue of band membership opened up. 57 The protests were most contentious in Alberta and Saskatchewan where people had a longer history of being unsettled, where migration between communities was common, and where Métis communities existed in close proximity to reserves. 58 As a result of creating band lists from existing departmental sources and the subsequent protests and investigations, the department compiled an official Indian register that listed all the registered status Indians under their respective bands. The rights of those who were on lists and had survived scrutiny became established; in the future individuals with similar historical or ancestral circumstances would not be recognized if they applied for membership but did not fit the criteria of the Indian Act. 59 This is most common with people who had scrip in their background and is analogous to the circumstances under which people came into treaty because they were accepted by the treaty commissioners although they would not have met the criteria of the Indian Act of the day. 54 SJC, MPE, No. 1 (28 May, 30 May, 1946), pp NAC RG 10 Vol File 1/3-3-2 Vol NAC RG 10 Vol File 1/3-3 and Leslie, "A Historical Survey of Indian-Government Relations, ," pp NAC RG 10 Vol File 675/3-3-0 Pt Leslie, "A Historical Survey of Indian-Government Relations, ," p INAC File 1/3-3 Vol. 4.

19 19 A further investigation into Indian Affairs and the Indian Act was made by a Joint Senate and House of Commons Committee established in April This committee recommended the discontinuation of the enfranchisement provisions of the Indian Act, including section 12(1)(b) which stripped Indian women of their status. The recommendations were incorporated into a memorandum to cabinet in 1961, but no action to amend the Indian Act was taken at that time. 60 Finally the Trudeau government's 1969 White Paper, which advocated the termination of special Indian status, was soundly rejected by First Nations who wanted to protect their treaty rights and special relationship with the Crown. The lobbying and court challenges that lead up to the Bill C-31 amendments to the Indian Act demonstrated the depth of division on the membership issue. In 1971, Jeannette Lavell and Yvonne Bedard, two Indian women who had lost status through marriage, successfully challenged the section 12(1)(b) of the Indian Act in the Canadian courts. The courts' decisions in favour of Bedard and Lavell were appealed by the Minister of Justice and heard jointly before the Supreme Court of Canada in January The Native Council of Canada, who represented Métis and non-status Indians, intervened on behalf of the two women and the National Indian Brotherhood, who represented status Indians, intervened against them. Ultimately, the Supreme Court ruled that the Indian Act did not discriminate against Indian women who married non-indian men. The decision was seen as a defeat by those fighting for equality for women, but as a victory for those who defended the Indian Act. The federal government then took the position that it could not alter any of the membership sections of the Indian Act until the entire Act was revised and the Indian Act was exempt from the application of the Canadian Human Rights Act which was passed in In 1978, Sandra Lovelace, another Indian woman who had lost her status through marriage, took her case to the United Nations Human Rights Committee. Lovelace argued that Canada was in violation of the International Covenant on Political and Civil Rights which it had signed in Much to the embarrassment of the Canadian Government, the United Nations Human Rights Committee accepted Lovelace's case and ruled in July 1981 that Canada was violating international law. The Committee ruled that Lovelace had been 60 Leslie, "A Historical Survey of Indian-Government Relations, ," pp

20 20 denied her full cultural rights under section 27 of the covenant because she was barred from living in her ethnic community. In the meantime, an interim policy was instituted in July 1980 to allow Indian bands to request the suspension of sections 12(1)(b) and 12(1)(a)(iv). Approximately 19 percent of all bands chose to suspend section 12(1)(b) thereby allowing a woman who married-out to retain her status and that of her children. On the other hand, 53 percent of all bands requested suspension of section 12 (1)(a)(iv), the double-mother clause, which affected both males and females. 61 The discrepancy in these figures suggests a general reluctance on the part of bands to support and protect the rights of Indian women. When Canada ratified the United Nations Convention on the Elimination of All Forms of Discrimination against Women in December 1981, the government stated its intention to amend the discriminatory sections of the Indian Act after a consultation process. The issue of equality for Native women was discussed at the Constitutional Conference in While government officials, non-status and Métis representatives and the Inuit appeared to support the entrenchment of equal rights for Native women, the Assembly of First Nations emphasized that membership or citizenship matters were the prerogative of the First Nations and could not be dictated by the federal government. It was agreed to amend section 35 of the Constitution, which guarantees existing Aboriginal and treaty rights, to apply equally to men and women. 62 Some groups, especially Aboriginal women's groups, wanted stronger equality guarantees because the current wording did not protect women against the discrimination contained in the Indian Act. Changes were proposed by the federal government at the 1984 Constitutional Conference but were not acceptable to the Assembly of First Nations. No amendments regarding sexual equality were made at that conference. Several months later, in June 1984, the Minister of Indian and Northern Affairs introduced Bill C-47. With the stated goal of ending discrimination against Indian women, Bill C Bands stopped requesting suspension of these sections in November 1984, probably because of upcoming changes to the Act. As of that date, 111 bands had requested suspension of 12(1)(b), and 313 had requested suspension of 12(1)(a)(iv). Data provided by the Membership and Reinstatement Unit, Indian and Northern Affairs Canada. 62 See Norman K. Zlotkin, "The 1983 and 1984 Constitutional Conferences: Only the Beginning," Canadian Native Law Reporter 3 (1984), pp. 6-7, for a more detailed discussion of Aboriginal rights in the Constitution and the Constitutional Conferences of 1983 and 1984.