) It is safe to say that the average Canadian does not understand the intricacies of issues of status and membership when it comes to indigenous peoples. The confusion is understandable; this is a complex and ever evolving issue. The terms used in any given context can vary greatly. Many people agree, for example, that the term ‘Indian’ is a somewhat outdated and inappropriate descriptor and have adopted the more acceptable ‘First Nations’. It can seem strange then when the term ‘Indian’ continues to be used, in particular by the government, or in media publications. The fact that ‘Indian’ is a legislative term is not often explained.
I find myself often answering questions about whether or not I have ‘status’, which invariably turns into a primer on status and membership in the Canadian context. This paper is an attempt to flesh out that primer in order to provide a basic explanation of what all of these terms mean.
My discussion will take place specifically within the Canadian political and legislative context. There are various terms that are used within this context, and because my purpose is to clarify the meaning of these terms, I do not wish to start using them interchangeably. When speaking generally, I will use the terms ‘First Nations’, ‘Inuit’ and/or ‘Métis’. If I wish to refer to all three of these groups, I will use the term ‘indigenous’. When referring to specific legal definitions, I will use the legislated terms.
Status versus Membership
Status is a legal definition, used to refer to indigenous peoples who are under federal jurisdiction1. The particular piece of federal legislation that defines status is the Indian Act 2, which was created in 1876 3 and has been updated many times since then. Status then refers only to those indigenous peoples who fit the definition laid out in the Indian Act.
Membership is a much more complex issue. It can refer to a set of rules created by an indigenous community, traditional or not, that define who is a member of that community. It can also refer to those who are considered members of certain regional or national indigenous organisations. It can be used in a much less formal and subjective sense, such as being part of an urban or rural indigenous group.
Obviously these definitions will overlap at times. The most important thing to note is that having membership is not the same as having status.
Who is Aboriginal?
Canada does not just have 'Indians', end of story. We have three groups of indigenous peoples that are constitutionally recognised and who have (mostly undefined) aboriginal rights here.
The term ‘aboriginal’ came into legal existence in 1982 when it was defined in section 35 of the Constitution Act, 1982 4. Section 35(2) defines the aboriginal as including “the Indian, Inuit and Métis peoples of Canada” 5. It is a general, catch all term that has gained legal status in Canada, and therefore is particular to the Canadian context. The term ‘indigenous’ is another such catch all descriptor, but does not have the same national legal connotations. Throughout this paper, I will use ‘aboriginal’ in the legal sense only.
The Constitution Act, 1982 does not define ‘Indian’, ‘Inuit’ or ‘Métis’. As we will see, the ‘Indian’ is defined by the Indian Act explicitly. The other two terms, ‘Inuit’ and ‘Métis’ have been defined through case law, and have changed at times, depending on the interpretation and ruling of the court. Even more confusing is the fact that non-status Indians are not mentioned in the Constitutional definition of ‘aboriginal’, despite the fact that this growing group self-identifies as aboriginal in census surveys7.Therefore non-status Indians are not ‘Indian’ according to the Indian Act, but whether or not they are ‘aboriginal’ according to the Constitution Act, 1982 is an issue that has not yet been satisfactorily resolved. A common sense approach to this issue would allow us to use the legal term ‘aboriginal’ to refer to non-status Indians as well, and any specific questions about who has jurisdiction or responsibility for this group can be addressed later on.
To sum up, ‘aboriginal’ peoples in Canada are constitutionally defined as status and non-status Indians, Inuit, and Métis. Being aboriginal does not mean one has legal status; status refers only to Indians defined by the Indian Act.
Status
Status Indians are persons who, under the Indian Act are registered or are entitled to be registered as Indians7. All registered Indians have their names on the Indian roll, which is administered by Indian and Northern Affairs Canada (INAC)8. Status Indians are entitled to certain programs and services not available to other aboriginal peoples.
Bill C-31
There were various Federal policies over the years that caused status Indians to be removed from the Indian roll9. Some lost status when they gained a university degree, joined the Army, joined the priesthood, gained fee simple title of land, gained the right to vote, or married a non-Indian (this applied only to women). Bill C-31 10was passed in 1985, and was intended to reinstate status for those who had lost it. In particular the Bill was supposed to reverse sexual discrimination that had cause Indian women who married non-Indians to lose their status while men who married non-Indian woman not only kept their status, but also passed status on to their wives.
Bill C-31 added new categories to the Indian Act, defining who is a status Indian, and who will be a status Indian in the future. The legislation does not specifically refer to any sort of blood quantum, therefore there is no official policy that would take into account half or quarter Indian ancestry. Nonetheless, ancestry continues to be a determining factor in who is a status Indian.
Section 6 of the Indian Act identifies two categories of status Indians, called 6(1) and 6(2) Indians. Both categories provide full status; there is no such thing as half status. The categories determine whether the children of a status Indian will have status or not11. A 6(1) Indian who marries a 6(1) or a 6(2) Indian will have 6(1) children. A 6(1) Indian who marries a non-Indian will have children who have 6(2) status. A 6(2) Indian who marries a non-Indian will have children with no legal Indian status. If two 6(2) Indians marry, they will have children with 6(1) status.
One of the most criticised aspects of Bill C-31 was that it did not actually reverse the sexism inherent in denying women status if they married a non-Indian. Women who had their Indian status reinstated under Bill C-31 have 6(1) status, but their children have 6(2) status. Men who married non-Indian women and passed on status to their wives had children with 6(1) status. Therefore, the children of ‘Bill C-31 women’ cannot pass on status to their children unless they marry a status Indian, while men who also married non-Indians have children who will pass on 6(2) status to their children.
Band Membership
There are a number of sub-categories that apply to status Indians12. The first category is Band Membership. A Band is defined as a group of Indians for whom land has been set aside (a Reserve), or who have been declared a Band by the Governor General13. Some registered Indians do not belong to a Band. This means that they are not entitled to any rights that would be held by members of a particular Band. Nonetheless they still have status as ‘Indians’.
What makes the issue of Band Membership even more confusing is that there are non-registered Indians who have Band Membership. They have been admitted to the Band under its own membership rules, but do not have legal status as ‘Indians’. A person who fits the legal definition of ‘Indian’ who does not register as such, is not recognised as an Indian until s/he registers, and the Indian Act will not apply to that person until that point. Therefore, membership in a Band does not guarantee one status, nor does lack of membership in a Band mean that one is not a legal ‘Indian’.
Treaties
Another sub-category distinguishes between Treaty and Non-Treaty Indians. Treaties in this context refer to formal agreements between legal Indians or their ancestors and the Federal government, usually involving land surrenders. The so called ‘numbered Treaties’14 were signed between 1875 and 1921 and cover most of western and northern Canada. (Here is a map of the historical Treaties.) British Columbia, with the exception of Vancouver Island is not covered by any historical Treaty. Other Treaties were signed in eastern Canada, but there are vast areas in the east that are still not covered by any Treaty. A number of modern (since 1976) Treaties have been signed in BC, and in other areas of the country, and negotiations are still underway to create more Treaties. Some Treaties provided for Reserves and others did not.
Reserves
The final sub-category is between Reserve and non-Reserve Indians. This does not refer to whether one actually lives on the Reserve or not, but rather describes whether a status Indian is affiliated with a Reserve. Even though no historical Treaties were signed in British Columbia, there are many Reserves, while in the Northwest Territories which is covered by a numbered Treaty, there are no Reserves.
Conclusion
So you've got status Indians. Some of them have Band Membership, some don't. Some are Treaty Indians, some aren't. Some have Reserves, some don't. No one category (Band, Treaty, Reserve) is going to tell you whether someone has status or not, and some will fit into all the categories or just some of them.
To sum up, status is held only by Indians who are defined as such under the Indian Act. Inuit and Métis do not have status, nor do non-status Indians. There are many categories of status Indians, but these are legal terms only, and tell us what specific rights an indigenous person has under the legislation. If an indigenous person is not a status Indian, this does not mean that he or she is not legally aboriginal. More importantly, not having status does not mean someone is not indigenous. Indigenous people will continue to exist and flourish whether or not we are recognised legally by Canada.
1. J. S. Frideres, R. R. Gadacz, Aboriginal Peoples in Canada, 7th ed. (Toronto: Pearson Prentice Hall, 2005), at 25.
2. Indian Act, R.S.C. 1985, c. I-5.
3. Supra note 1, at 23.
4. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s.35.
5. Ibid, s.35(2).
6. C. Cook, J. D. Lindau eds, Aboriginal Rights and Self Government: The Canadian and Mexican Experience in North American Perspective. (Quebec: McGill-Queen’s University Press, 2000), at 103.
7. Supra note 2, at ss. 6, 7, 8, 9.
8. Indian Status, Indian and Northern Affairs Canada, online: Government of Canada, <http://www.ainc-inac.gc.ca/br/is/index-eng.asp>, [accessed Nov. 2, 2009].
9. Supra note 1, at 28 – 36.
10. Bill C-31, an Act to Amend the Indian Act.
11. M. Furi, J. Wherrett, Indian Status and Band Membership Issues, Political and Social Affairs Division: Parliamentary Information and Research Service Online: <http://www.parl.gc.ca/information/library/PRBpubs/bp410-e.htm#achangestx> , [accessed Nov.4, 2009].
12. Supra note 1, at 27.
13. Supra note 2, s.2.
14. Supra note 1, at 28.
THE INUIT
THE MÉTIS
*doesn't hold breath*