Getting out of the business of Indian registration

What authorities provide First Nations the ability to determine band membership?

In 1985, Bill C-31 created two separate regimes for the control of band membership under sections 10 and 11 of the Indian Act. Section 10 grants the opportunity for First Nations to take control of their band membership by developing membership rules and codes to be approved by the Minister of Crown-Indigenous Relations. Section 11 band membership lists are maintained by the Indian Registrar.

First Nations can also take control of their membership if they have entered into a modern treaty or self-government agreement with Canada. This option was made available in 1995 through the Federal Policy on Aboriginal Self-Government.

Description of Figure 1: Band Membership Control in First Nations (618) May 2018

Figure 1 presents a pie graph to represent band membership control in 618 First Nations:

• 37 self-governing First Nations make up 6% of the total number of First Nations represented.
• 229 section 10 bands make up 37% of the total
• 352 section 11 bands make up the remaining 57%

What is a section 10 band?

Section 10 of the Indian Act allows a band to assume control of its own membership so long as the band can meet the requirements outlined in section 10. A band is required to meet three specific requirements:

• notices I and II: under section 10(1), the band must give notice to its electors of its intention to assume control of its own membership and establish membership rules for itself
• notice III: under section 10(6) once all requirements under section 10 of the Indian Act have been met, the band must give notice in writing to the Minister of Crown-Indigenous Relations indicating that the band is assuming control of its own membership and provide the minister with a copy of the membership rules
• consent: under section 10(1) the intent to assume control must be approved by a majority of the majority ("double majority") of the eligible electors of the band
  • this means that the majority of the eligible electors of the band must vote, and a majority of those who vote must be in favor
  • for further clarification, consent refers specifically to the intention to assume control and to establish rules

In addition to these three specific requirements, bands are also required to respect the acquired rights of individuals who are currently members or entitled to be members of their band. In other words, the band cannot deny membership to persons who were entitled to be a member on the day before the band's membership rules came into force. The minister cannot approve a code if these acquired rights are not preserved. If the requirements of section 10 are met, Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) will notify the band of the change of membership control and provide the band with a copy of its band list. From that day forward, the band is required to maintain its own band list and CIRNAC has no further responsibility with respect to the band's membership. Any individual who wishes to be a band member must contact the band to be added to their membership list.

What is a section 11 band?

Section 11 of the Indian Act describes membership rules for band lists maintained by the Indian Registrar. Membership on these lists is dependent upon an individual's eligibility for registration as a status Indian under the Indian Act. If an individual is registered and identifies with a band whose band lists is maintained by the Indian Registrar, this individual automatically becomes a member of the band. Family lineage is used to see if the individual's parents or grandparents were members or entitled to be members of the band as well. No consent is required on behalf of the band.

What is a self-government agreement?

Self-government agreements set out arrangements for First Nations communities to govern their internal affairs and assume greater responsibility and control over the decision making that affects their communities. Self-government agreements address areas such as the structure and accountability of First Nation governments, their law-making powers, financial arrangements, and their responsibilities for providing programs and services to their members. Self-government arrangements can also enable a First Nations community to exercise its own control over membership outside of the Indian Act. Registration of status Indians under the Indian Act remains the responsibility of the Indian Registrar under these agreements. Modern treaties are also a way for First Nations to take control of their internal affairs and decision making that affects their communities. Self-governing First Nations may fall under self-government agreements or modern treaties.

Why is First Nations' authority in determining band membership important?

Based on the findings of the exploratory process, First Nations have highlighted that bands are dependent upon federal legislation to determine who belongs to their communities or Nations, and this is contrary to international covenants such as the United Nations Declaration on the Rights of Indigenous Peoples where Indigenous peoples have the right to determine their citizenship.

The work undertaken under the collaborative process on Indian registration, band membership and First Nation citizenship will inform these issues through consultation on how First Nations can exercise exclusive responsibility for the determination of the identity of their members or citizens, and Canada getting out of the "business" of determining status under the Indian Act.

What is Canada's current role?

The Government of Canada has exclusive control over the registration of status Indians under Canadian law. Indian status is determined through the application of sections 6(1) and 6(2) of the Indian Act. Indian registration provides status Indians with access to certain entitlements and programs, such as:

• tax exemptions for income earned on reserve and for federal sales tax
• access to non-insured health benefits
• access to post-secondary education funding
• Treaty rights (such as, Treaty annuity payments) and Aboriginal rights (such as, hunting and fishing)

The purpose of Indian registration is to enable CIRNAC to clearly identify who is entitled to federal programs and funding.

Indian Registrar

The Indian Registrar has the sole authority under the Indian Act to determine eligibility for Indian registration. The Indian Registrar is a federal government employee and is responsible for maintaining the Indian Register and departmentally controlled band lists under section 11 of the Indian Act.

Indian Register

The Indian Register is the official record identifying persons registered as status Indians under the Indian Act. The Indian Registrar is responsible for maintaining the Indian Register. Registered Indians, also known as status Indians, have certain rights and benefits not available to non-status Indians, Métis, Inuit or other Canadians. These rights and benefits include:

• on-reserve housing
• non-insured health benefits
• education
• exemptions from federal, provincial and territorial taxes in specific situations

To be included in the Indian Register, you must have successfully applied for registration under the Indian Act, as determined by the Indian Registrar.

Processing applications

CIRNAC officials have the responsibility for processing applications for Indian registration under the authority of the Indian Registrar. Applications are assessed by the national processing unit in Ottawa or the processing unit in Winnipeg, Manitoba. The Winnipeg office is responsible for processing Bill S-3 applications and formerly Bill C-3 applications. Regional offices across the country are responsible for registration of applicants born after April 17, 1985 who have one parent registered under section 6(1) of the Indian Act or for cases where both parents are registered under section 6 of the Indian Act.

Section 10 and 11 band lists

The Indian Registrar maintains band lists under section 11 of the Indian Act and currently controls the band lists for 352 First Nation communities. Bands also have the option of determining their own membership under section 10 of the Indian Act where they can obtain control over their band list through an application and creation of a membership code or rules that are approved by the Minister as defined by the Indian Act. Find out more by consulting the First Nations' authorities to determine band membership fact sheet in the related links section below.

Government transition and how it relates to its role in determining Indian status and band membership

On August 28, 2017, the Government of Canada announced the creation of two departments:

• Crown-Indigenous Relations and Northern Affairs Canada
• Indigenous Services Canada

These departments replace Indigenous and Northern Affairs Canada. This change was described as a step towards ending the Indian Act with mandates intended to accelerate self-government and self-determination agreements based on new policies, laws and operational practices. Canada hopes to tear down the outdated and paternalistic structure that supported the Indian Act in favour of a true nation-to-nation relationship based on recognition and respect for the right to self-determination. This will require complete reform of many policies. It will involve discussions on many issues including urban groups, treaties, and land agreements in addition to defining who is and is not an Indian.

The collaborative process on Indian registration, band membership and First Nation citizenship will inform these issues through consultation with discussions around how First Nations will exercise their responsibility for the determination of the identity of their members or citizens.