Guide to Bill C-31 - Native Women's Association of Canada Website

Native Women’s Association of CanadaGUIDETOBILL C-31~ 1986 ~An explanation of the 1985amendments to the Indian ActAn NWAC Guide

Table of ContentsPreface.........................................................................................................3Introduction ..................................................................................................41. Who is Entitled to Federal Status........................................................6Section 6(1): ................................................................................................................6Section 6(2): ................................................................................................................8Summary of Major Effects of the New Status Provisions ............................................82. Who is not entitled to Federal Status................................................10Who is excluded from Registering.............................................................................10Who will not gain status Under Bill C-31 ...................................................................12Second Generation Descendants ......................................................................................12Persons Who Took 'Scrip' ...................................................................................................14Women Who Gained Status by Marriage and Lost it......................................................143. Who is Entitled to Band Membership................................................18Those Entitled to be Entered in a Band List Maintained in the Department..............18Those with ‘Conditional’ Membership........................................................................204. Continuing Cases of Discrimination … .............................................23Unequal Transmission of Staus and Band Membership ...........................................23"Illegitimate” Children Treated Differently..................................................................235. Band Control of Membership ............................................................25Band Chooses to Control Membership: ....................................................................27Band Chooses not to Control Membership ...............................................................29Band Chooses to Return Control of Membership to the Department......................................31Notes on Entry to Band Lists and Transfers between Bands....................................316. Protests and Appeal Mechanisms ....................................................33Federal Rules............................................................................................................33Band Rules................................................................................................................337. Other Amendments to Note ..............................................................35Residency Rights / Opting Out...............................................................................35Per Capita Shares and ‘Payback’ Mechanisms ........................................................35Discriminatory Provisions Deleted.............................................................................37Alcohol Control By-Laws ...........................................................................................37Creation of New Bands .............................................................................................37'Absolute Immunity’ Clause .......................................................................................39Report and Parliamentary Review.............................................................................398. Application for Status & Band Membership ......................................41Pg. 2

PREFACEThis is designed to be a guide to understanding the major amendments to the Indian Act as aresult of Bill C-31. It is therefore not intended to describe all of the changes made. Instead nontechnicallanguage and practical examples have been used as much as possible to assist thereader in gaining a good understanding of those provisions which have the greatest impact onour members and their families.It should be noted that because we are dealing with a law that is still foreign to our Nations, weare forced to use its terms in our document. Whenever we are making reference to the IndianAct and Bill C-31, we use terms like "Indian" and "non-Indian". Although these do notnecessarily accurately describe the ancestry of the individual concerned, it is recognized that"Indian" is a term introduced by the Europeans and not the First Nations.The new Act does not deal with Treaty Rights since these rights are not dependent upon federalstatus legislation. It is also important to note that although Aboriginal people in the westernprovinces use the term "Treaty Indian" to refer to status Indians, there are important legaldifferences between these two terms. Therefore we have used the term "status Indian"throughout.Throughout this booklet, we have used the terms -- "pre-1985" Act or "old" Act, to refer to theIndian Act before the amendments made to it by Bill C-31, and "new" Act or "new" sections, torefer to the legal provisions added to the Indian Act by Bill C-31.For the convenience of the reader, and in order to assist in the understanding of the Bill, therelevant provisions of the Bill and of the pre-1985 Indian Act have been reproduced on pagesfacing the commentary.Pg. 3

INTRODUCTIONOn April 17, 1985, section 15, the equality rights section of the Canadian Charter of Rights andFreedoms came into force. In order to bring the Indian Act into accord with this section,amendments had to be made to it.Bill C-31, entitled An Act to Amend the Indian Act, was tabled in the House of Commons onFebruary 28, 1985. It was then sent to the Standing Committee on Indian Affairs and NorthernDevelopment. After about 5 weeks of hearings on the Bill, the Standing Committee made anumber of amendments to the Bill. When the Bill reached the House, further changes weremade. It was finally passed on June 12, 1985. The Senate made no other changes to the Billand it was given Royal Assent on June 28, 1985.The Minister of Indian Affairs and Northern Development, David Crombie insisted on threemajor principles being reflected in Bill C-31: elimination of discrimination from the Indian Act,reinstatement of individuals who once had status and band membership and band control ofmembership. In order to accommodate these principles, a number of changes have been madeto the Indian Act, through Bill C-31.The sexually discriminatory sections of the Indian Act have been removed, as of April 17, 1985.Those who once had status and membership can now have it restored and those who areeligible for first-time registration of status can be recognized. In both cases, it is up to theindividual to make an application to the Department, since the Government has stated that it willnot automatically register individuals.In order to recognize the principle of band control of membership, the Government has chosento separate the concepts of status and membership. The Federal Government will continue toconfer status; bands will determine membership.Other changes have been made to the Indian Act through Bill C-31. The definitions of “elector”and "child" have been changed, the concept of enfranchisement has been abolished, and as ofDecember 28, 1985 bands now have the by-law making powers to control alcohol on reserves.In addition, major decisions around control of membership and alcohol by-laws require theconsent of a majority of electors.On June 28, 1987, the Minister of Indian Affairs and Northern Development will present toParliament, a report which will assess the impact of Bill C-31.These and other areas are covered as thoroughly, and as simply, as possible in the followingpages.Pg. 4

Pg. 5

1. WHO IS ENTITLED TO FEDERAL STATUSIndian status is considered by the Federal Government to be a definition of its specialrelationship with Indians. The Federal Government also maintains that Parliament isresponsible for determining which individuals are status Indians. This is done throughthe provisions of the Indian Act, which are administered by the Department of Indian andNorthern Affairs. (DINA)In the old Act, status usually also meant band membership. It must be emphasized thatBill C-31 now separates the two. Therefore bands are now recognized to have the rightto determine band membership and can exercise this right if they so wish.Old sections 11 and 12 of the Indian Act dealing with status and band membership havebeen repealed. In the new Act status and membership are now dealt with in twoseparate areas.The discussion to follow describes the new status provisions contained in the newsection 6.Sub-sections 6(1) and 6(2) define who is entitled to be registered as a status Indian inthe Indian register maintained by the Indian Registrar at DINA.SECTION 6(1):a) All those already registered (whether entitled or not) in the Indian register asof April 16, 1985,andAll those entitled by law to be registered as of that date;b) All members of bands newly created or recognized by the Government, e.g.,the Conne River MicMac Band in Newfoundland;c) All persons who lost status through:- Section 12(1)(a)(iv) - the Double-Mother Clause- Section 12(1)(b) - Marriage to a non-Indian*- Section 12(2) - Children born out of marriage to an Indian woman and anon-Indian man and who lost status upon protest- Section 12(1)(a)(iii) and section 109(2) - an Indian woman involuntarilyenfranchised upon marriage to a non-Indianandany or all of her children from a former union who were involuntarilyenfranchised due to that marriage;*Note:"Non-lndian" includes those people who were denied entitlement under the pre- 1985 Act,even though they may have been of First Nations ancestry.Pg. 6

Pg. 7

d) All persons enfranchised under section 12(1)(a)(iii) and section 109 (1) - theenfranchisement of an Indian man along with his wife and unmarried childrendue to his so called 'voluntary' enfranchisement;e) Anyone enfranchised under:- Section 13 of the Indian Act 1927 (first introduced in 1880 and repealed in1951) - residency outside of Canada for more than 5 years without theconsent of the superintendent or Indian agent- Section 111 of the Indian Act 1906, (first introduced in 1867 and repealedin 1920) - upon becoming a lawyer, doctor, clergyman, or upon receivingany degree from a university;(f) Children both of whose parents are entitled to be registered under any subsectionof section 6, whether or not their parents are aliveSECTION 6(2):Children only one of whose parents is entitled to be registered under section6(1)(a) to (f).SUMMARY OF MAJOR EFFECTS OF THE NEW STATUS PROVISIONS1. No one gains or loses status through marriage.2. Persons who previously lost status through sexual discrimination andenfranchisement are entitled to regain status.3. First-time registration of children whose parents lost status is now possible.4. No one will have status unless at least one parent has, or would have had,status.5. The concept of enfranchisement is now entirely abolished; no one can renounceor lose status.Pg. 8

Pg. 9

2. WHO IS NOT ENTITLED TO FEDERAL STATUSWHO IS EXCLUDED FROM REGISTERINGWhen drafting Bill C-31, the Government decided not to have a long list detailing whowould not be entitled to Indian status, as was the case with the old Act. Instead, section6 contains all the categories of people entitled to be registered as status Indians.However one exception was made.The new section 7(1)(a) and 7(1)(b) bars two categories of persons from registering:Section 7(1)(a) Non-lndian women who gained status through marriage under old section 11 (1)(f)and then lost it for any reason.Example: A white woman marries an Indian and gains status. Later she divorcesthe Indian and marries a white man. She will not be able to regain status whichwas lost under old section 12(1)(b).(b) Children of such women whose fathers are also non-lndian.Example: A white woman who had gained status through marriage divorces herIndian husband. She has a child with her common-law husband who is alsowhite. That child is not entitled to be registered.Exception:In order to protect women and their children who had or were entitled to status at birth,from the exclusion under 7(1)' new sections 7(2) and (3) have been added:Section 7(2):This states that a woman will not be barred from registering as a status Indian if she hador was entitled to status at birth.Section 7(3):This applies to children of women described above. They will be entitled to register iftheir mothers had or were entitled to status at birth.Pg. 10

Pg. 11

WHO WILL NOT GAIN STATUS UNDER BILL C-31Despite what may be thought, not all people of First Nations ancestry will regain thestatus they lost, or the rights they were denied. Three major categories of aboriginalpeople are still not covered by the Bill:Second Generation DescendantsThe Bill covers reinstatement of those who lost status through the discriminatoryprovisions or the enfranchisement provisions of the old Act. Their children, referred to asthe first generation, will also gain status. However, the Government decided to cutreinstatement off at the second-generation level.The Act now imposes a new rule for all second-generation descendants. In order for thatchild to have status, both parents must be status under section 6(1) or (2) or at least oneparent must be status under section 6(1).Example: If only one parent has status under section 6(1), the first-generation child willhave status under section 6(2). If that child marries another status Indian, their children(second generation) will have status under section 6(1)(f). On the other hand if the firstgenerationchild has a non-Indian spouse, their children will not be registered.Illustration:Pg. 12

Pg. 13

Persons Who Took 'Scrip'Persons who received or were allotted 'half-breed lands or money script’, were excludedfrom status under old section 12(1)(a), as were their descendants. While C-31 hasrepealed this section, it did not specifically reinstate these persons. To gain status, theymust qualify under one of the categories of new section 6.Women Who Gained Status by Marriage and Lost itAs previously stated, section 7(1)(a) prevents women, who gained status throughmarriage and then lost it through remarriage from regaining status. Although thiswill bar non-Indian women from being reinstated, it will also affect women of FirstNations ancestry who may not otherwise be entitled to status under the new bill.Example: A woman of First Nations ancestry gains status upon marriage to anIndian, then loses it upon remarriage to a non-Indian. If she did not have status atbirth, she will not regain status.Pg. 14

Pg. 15

Pg. 16

Pg. 17

3. WHO IS ENTITLED TO BAND MEMBERSHIPAs mentioned earlier in the discussion around status provisions, bandmembership is now separate from status. Just as status no longer necessarilymeans band membership, nor does band membership necessarily mean status.As a result of Bill C-31, bands can now determine who their members are if theyso wish. The new Act outlines procedures to be followed in these cases. Bill C-31also provides section 11 which defines band membership for those bands whochoose not to control their membership.Section 11(1) lists the categories of persons who are eligible for band membership as ofApril 17, 1985. Section 11(2) covers what we are referring to as 'conditional'membership.THOSE ENTITLED TO BE ENTERED IN A BAND LIST MAINTAINED IN THEDEPARTMENT.Section 11(1):a) Persons who were on the band list, or were entitled to be on the list, immediatelybefore April 17, 1985;b) Persons who are members of new bands;c) Persons who regain status under section 6(1)(c) of the new Bill:- Section 12(1)(a)(iv) - the Double-Mother clause- Section 12(1)(b) -Marriage to a non-Indian- Section 12(2) -Children born out of marriage to an Indian woman and a non-Indian man and who lost status upon protest- Section 12(1)(a)(iii) and Section 109(2) - an Indian woman involuntarilyenfranchised upon marriage to a non-Indianandany or all of her children from a former union who were involuntarily enfranchiseddue to that marriage;d) Children born after April 171 1985 both of whose parents are members of thesame band.Pg. 18

Pg. 19

THOSE WITH ‘CONDITIONAL’ MEMBERSHIPOn June 28, 1987, or earlier, if a band decides not to control its own membership threecategories of persons are automatically entitled to membership.Unlike persons who are immediately entitled to membership under section 11 (1) above,those who have 'conditional' membership under section 11 (2), wait up to two years.Once this delay has passed, or if the band decides not to control its own membership,their names will be entered in the band list maintained by the Department.The three categories of persons affected are included in section 11 (2):Section 11(2):a) Anyone who was enfranchised under- old section 12(1 )(a)(iii) pursuant to old section 109(1 )- section 13 of the pre-1951 Indian Act- section 111 of the pre-1920 Indian Act;b) A child whose parents belong to different bandsorA child only one of whose parents is, or was, entitled to be a member of a band.It is important to note that a band that takes control of membership can either include orexclude all those 'conditionally' entitled. Again though, it is important to keep in mindwhen the band assumes control. If this is before June 28, 1987, the band can validlyexclude all the conditionally entitled. After June 28, 1987, the band may not excludeanyone who, immediately before that date, was entitled to band membership undersubsections (1) and (2) of section 11. This will be more fully explained in the followingpages.Pg. 20

Pg. 21

Pg. 22

4. CONTINUING CASES OF DISCRIMINATION RESPECTINGSTATUS AND BAND MEMBERSHIPWhile the new law has done away with the sexually discriminatory sections of the IndianAct for the future, the effects of past discrimination will still have an impact for the future.There are two major areas of continuing discrimination:UNEQUAL TRANSMISSION OF STATUS AND BAND MEMBERSHIPUnder Bill C-31, reinstated persons are treated differently than those already registeredas band members, when it comes to transmitting status and band membership to theirchildren and future generations.The child with only one reinstated parent is eligible for status only; band membership is'conditional'. On the other hand, the child of two parents who are already registered asband members, is entitled to both status and band membership, immediately.Example: A brother and sister who were both status each married non-Indians beforeApril 17, 1985. The brother's wife gained status, so their children are status and bandmembers. Not so for the sister who married a non-Indian. Under Bill C-31, she willregain status and band membership, but her children are entitled to less. They cangain status only and have 'conditional' band membership.Note: As indicated in this example, Bill C-31 does not affect the rights of the non-Indianwoman who gained status upon marriage. It is important to note that Government isintent on respecting the 'acquired rights' of the non-Indian spouse. Parliamentarians aresimply not willing to alienate the nation-wide women's vote."ILLEGITIMATE" CHILDREN TREATED DIFFERENTLYIn 1983, the Supreme Court of Canada ruled in the case of MARTIN vs. CHAPMAN, thatthe "illegitimate" male child of a status male parent and a non-status female parentwould have status and membership, under old section 11(1)(c). However, the"illegitimate" female child was not entitled to be registered.This sub-section has been repealed under Bill C-31, but its legal effects still persist. Theseparation of status and band membership in the new Act means that the female child isstill treated differently.If a male child had status under old section 11, he will be registered under new section6(1) and therefore has an automatic entitlement to band membership. His sister,however, will now gain status, but under new section 6(2). She will therefore have only a'conditional' entitlement to band membership.Pg. 23

Pg. 24

5. BAND CONTROL OF MEMBERSHIPAs has been stated earlier, while the Federal Government will maintain its policy ofconferring status to Indians, it has decided to recognize the principle of band control ofmembership in Bill C-31. It is emphasized again that status and band membership areseparate elements, therefore individuals who may be recognized as members of a bandaccording to the band's own rules will not necessarily be status Indians as well.In order to accommodate the diversity amongst bands across the country, the Billcontains provisions which not only outline the requirements and process whereby a bandmay assume control of its membership, but also allows for situations where bands maydecide not to assume its own membership rules. As well, other provisions are availableto deal with bands, who once having controlled membership, decide to return this controlto the Department.Further to previous discussions around 'conditional' membership, it is important toremember that a band's decision to control or not control membership, as mentionedabove, and the timeliness of that decision will have different effects on those people whoare now status Indians, but whose membership is dependent on the band.While for the most part, the Federal Government intends to respect the decisions madeby the bands in determining and controlling membership, Bill C-31 does call for somefundamental principles to be met: the 'acquired rights' of individuals must be protected,equality between sexes must be maintained, and a majority of electors must giveconsent to band decisions regarding membership.There are many variables and complexities involved in the whole matter of band controlof membership under Bill C-31. These are dealt with in the following sections of theGuide.Pg. 25

Pg. 26

BAND CHOOSES TO CONTROL MEMBERSHIP:Process:The new section 10 outlines the procedures to be followed by a band wishing to controlits membership in accordance with Bill C-31:1) 'Appropriate Notice' of its intention to assume control must be given to the"Electors" of the band (Bill C-31 does not define what "appropriate notice"means) [Sec.10(1)];Note: The age of an "elector" as defined in the new Act is now eighteen, not twenty-oneyears. Also, for purposes of voting in band elections, section 77(1) states that the personmust be "ordinarily resident on the reserve." However for purposes of the consentrequired to control band membership section 10(3) specifies that the band council couldalso include off-reserve band members.2) A majority of the electors of the band must consent:a) to assume control of membership [Sec.10(1)];andb) to the membership rules of the band which must be in writing [Sec.10(1) and(2)(a)];3) The rules may include a process for reviewing membership decisions[Sec.10(2)(b)]. This is not obligatory;4) Once approved, the rules are sent to the Minister [Sec.10(6)] who ensures thatpoints (1) and (2) above have been followed [Sec.10(7)];5) If they have, the band is given notice that it has control of its membership[Sec.10(7)(a)], and the Department sends the band a copy of its band list[Sec.10(7)(b)];6) The membership rules take effect on the date that notice is sent to the Ministerthat the band was assuming control of its membership [Sec.10(8)];7) The band begins to keep its band list once it has been received from theRegistrar and from this day onwards, the Department is no longer responsible forthe band list [Sec.10(9)]. Additions and deletions are made to the list by the bandin accordance with its own rules [Sec.1 0(10)].Pg. 27

Pg. 28

Impacts:On the date the band rules come into effect, the Federal membership rules nolonger apply;Individuals who are entitled to be entered in the band list before the bandassumes control, cannot be left out because of a previous situation or actiontaken [Sec.10(4)]. Bill C-31 makes it clear in section 10(5), that a reinstatedIndian woman, for example, who is eligible for automatic band membershipcannot be left out of the band's own rules because she had married a non-Indianbefore the band assumed control of membership. In other words, her 'acquiredrights' are protected;All band members, including reinstated persons or individuals with 'acquiredrights', may lose band membership in the future according to the band's ownrules;Individuals with 'conditional membership' are affected according to the date onwhich bands assume control:If before June 28, 1987, a band may assume rules that will exclude them fromband membership;If after June 28, 1987, they will have received band membership according toFederal rules. Therefore their 'acquired rights' must be protected under theband's own rules;Band membership does not necessarily mean status. If a band's rules do notmatch Federal rules regarding status, an individual accepted as a member of aband, may not be accepted by the Government as a status Indian. Similarly, lossof band membership does not mean loss of status;Band membership rules will apply equally to female and male persons.BAND CHOOSES NOT TO CONTROL MEMBERSHIPProcess:New section 13.1 outlines the procedures to be followed if a band decides that theFederal status rules should apply immediately:1) A majority of the electors must decide that control of the bands list will be left withthe Department [Sec.13.1(1)];2) The band council must inform the Department, in writing of the decision[Sec.13.1(2)].Impact:• The band's membership list will be maintained according to Federalmembership rules under section 11, and all those with 'conditional'membership will immediately be eligible to be on the band's membership list.Note: An initial decision to leave control of its membership with the Department does notprevent a band from assuming control in the future, under section 10 [Sec.13.1(3)].Pg. 29

Pg. 30

BAND CHOOSES TO RETURN CONTROL OF MEMBERSHIP TO THE DEPARTMENTProcess:New section 13.2 outlines the procedures to be followed if a band assumes control of itsmembership but later decides to return control to the Department:1) A majority of the electors must decide to return control to the Department [Sec.13.2(1)];2) The band council must inform the Department, in writing, of the decision and provide theDepartment with a copy of its band list and membership rules [Sec.13.2(2)];3) Maintenance of the band list becomes the responsibility of the Department on the date thatthe Department receives the written notice [Sec.13.2(3)].Impacts: The Department will be once again responsible for keeping the band listaccording to Federal membership rules under section 11, and the band's ruleswill no longer apply. From that point onwards, persons will become bandmembers according to Government rules and not band rules.All persons whose names appear in the band's list when it is returned to theDepartment will be entitled to be entered in the Department's list, whether or notthey meet the federal rules under section 11.NOTES ON ENTRY TO BAND LISTS AND TRANSFERS BETWEEN BANDSPossible gaps exist in the legislation. There may be cases where someone who isentitled to status under section 6 is for some reason not entitled to band membershipunder section 11. There may be other cases in which someone wishes to transfer fromone band to another. If a band has control of membership, these two questions wouldhave to be resolved according to those membership rules.What happens where the band has not taken control of membership?Section 12(a) deals with the situation of a person who is entitled to status under section6, but is not entitled to band membership under section 11. The best (if not the only)example involves persons on the General List. This list had about 100 persons on itbefore it was abolished by Bill C-31. The 'General List Indians' did not, under the old Act,have a right to be members of bands. If such a person has, or regains status, andwishes to belong to a particular band, and that band council agrees, then she/he cangain entry onto the band membership list maintained in the Department.Paragraph (b) of section 12 deals with a different situation. Someone who already hasmembership in one band, but who wishes to belong to another, may transfer under thisprovision. As long as the council of the admitting band agrees, that person may transfer tothat band and may have her/his name entered in the band list maintained in the Department.It is important to remember, that according to section 13, a person can be listed in onlyone band list maintained by the Department. This limitation on band membership onlyapplies to Departmental lists. There is nothing in section 13 which prevents a personfrom being a member of two bands, as long as one (or both) have control of their ownmembership.Pg. 31

Pg. 32

6. PROTESTS AND APPEAL MECHANISMSUnder Bill C-31, it is up to an individual to apply to the Department for status. Anapplication must also be made to the Department for band membership, if the band isnot controlling membership. If the band is, then she/he must deal with the band directly.Protests and appeals with regards to status can only be directed to the Registrar sincethe Department alone is responsible for the Indian register. Actions concerning bandmember- ship may differ, on the other hand, if a band has control of membership.Both situations will be discussed in turn as follows:FEDERAL RULESThe new Act specifies that a protest may be made within three years from the date aname was included, added, omitted or deleted from either the Indian register orDepartmental band lists [Sec.14.2(1)]. A protest may be made by any person, her/hisrepresentative, the band councilor any band member [Sec.14.2(2)].Protests in writing may be made to two separate lists:1) The Indian register (the status list)2) The band list (the membership list)A new provision will help people to establish their right of entry to these lists. Section14.2(6) states that the Registrar may receive any evidence, whether legally admissibleor not, that would prove that a person is entitled to status or membership. Since it maybe difficult for many people to prove ancestry through birth or baptismal certificates, thisnew amendment will allow the use of oral testimony from elders and other communitypeople.Example: Someone wishes to prove her/his ancestry but the birth records for theparents (or grandparents) are missing or don't exist. If elders in the communitycan be found who have some recollection of the person's ancestors, then thisevidence can be used. Under the pre-1985 Act this evidence would usually havebeen rejected.Within six months after the Registrar has made a decision, an appeal can be made tothe superior court of any province or territory [Sec.14.3].BAND RULESWhen a band decides to assume control of membership, it has the option to set up areview mechanism. It is expected that many bands will, or already have, set up such amechanism. In this case, decisions on membership within a band must be appealedthrough this process.It is important to note that this process has no effect on status nor will a protest to theRegistrar on status have any effect on membership. The decision on membership, madewithin the band review process, may not be further appealed to the courts unless there issome violation of Bill C-31 or of Constitutional Law.Pg. 33

Pg. 34

7. OTHER AMENDMENTS TO NOTERESIDENCY RIGHTSUnder section 18.1, dependent children have a right to reside on the reserve with theirparent(s) or with anyone else who has custody - a grandparent, aunt, uncle, for example.Under section 81(1)(p.1), the band council has new by-law making powers to controlresidency on the reserve of both band members and any other persons. Band councilsalso have new powers under section 81(1)(p.2) to provide for the rights of spouses andchildren who live on the reserve with members of the band.OPTING OUTSection 4 of the Indian Act, as a result of Bill C-31, now prevents individual bands fromopting out of the new registration and membership sections (section 5 - 14.3).It also confirms that the Minister had the authority in the past to allow individual bands tobe exempt from the application of old sections 12(1)(a)(iv) and 12(1)(b).PER CAPITA SHARES AND 'PAYBACK' MECHANISMSBefore Bill C-31, when someone was enfranchised or lost status, that person may havereceived a per capita share of the band assets.If that share was more than one thousand dollars ($1000), she/he, upon regaining bandmembership, will be unable to receive a share of the band's capital monies arising out ofthe sale of the band's lands until the amount, minus $1000,* has been held back fromher/him, plus any interest. In other words, the reinstated band member must in effect payback the original amount received, minus $1000, plus interest [Sec.64.1(1)] beforereceiving any more band assets. As well, under section 64.1(2), the band council canpass a by-law requiring re-payment before that person can receive band benefitsincluding royalties.Under the new amendments, status cannot be lost by anyone. However, membership ina band can be lost, depending on the rules adopted by that band when it took control ofits membership. If a band council wishes, a payment of no more that one per capitashare of its capital monies can be made to the person who has lost band membership[Sec.64(2)].Pg. 35

*Note: The Act specifies that in any case of 'pay-back' or 'hold-back' of amounts receivedprior to April 17, 1985, the first $1000 is forgiven.Pg. 36

DISCRIMINATORY PROVISIONS DELETEDThe amendments changed other provisions in the Act which had previously been appliedunequally. Men and women are now treated equally concerning spousal desertion[Sec.68]. The definition of child has been expanded to include children born in and out ofmarriage and children adopted according to provincial law or Indian custom.Consequently, children born in or out of marriage are now treated equally concerninginheritance of property [Sec.48].ALCOHOL CONTROL BY-LAWSThese amendments were introduced because of conflicting court decisions regarding theprohibitions on alcohol control contained in the pre-1985 Act. Band councils now havethe power to pass a by-law to prohibit:1) The sale, barter, supply and manufacture of intoxicants on the reserve;2) Any person from being intoxicated on the reserve;3) Any person from having intoxicants in her/his possession on the reserve.The band can make any exception to the areas covered in (1), (2) or (3) above - forexample, it can allow medicinal use, transportation of unopened bottles across thereserve, or intoxicants in private houses. The by-law must be approved by a majority ofthe band's electors called to vote at a special meeting of the band. Once passed, theMinister has no authority to overrule the decision. The amendments also containprovisions for penalties, by way of fines or imprisonment or both. This amendment cameinto force on December 28, 1985.CREATION OF NEW BANDSBill C-31 made changes to section 17 of the old Indian Act regarding creation of newbands. Under the old Act, new bands could be made only from "existing Band Lists orGeneral Lists or both". Since the new amendments to Bill C-31 did away with band listsand general lists, new provisions had to be made.The new Act now specifies that the Minister may, whenever he considers it desirable,create new bands from:1) Existing band lists, or2) The Indian register, if requested by persons wishing to form the newbands.He may also amalgamate bands, if a majority of electors from each band agree to formone new band. It should be noted that the Minister has complete discretion, as towhether to create a new band.It should also be noted that subsection 17(3) states that there can be no protest andtherefore no court review of a Ministerial decision to either add names to a new list, or toremove names from the old list. This subsection merely ensures that someone on theold band list, who wishes to be on a new band list, cannot later protest the Minister'sdecision.Pg. 37

Pg. 38

Pg. 40

8. APPLICATION FOR STATUS AND BAND MEMBERSHIPIn order to be registered in the Indian register and the band list maintained by theDepartment, an application form (see appendix for sample copy) must be completed andsubmitted to the Registrar. Forms are available from Departmental offices, NativeWomen's Associations, Friendship Centres, and other Aboriginal organizations.The Department has set up a toll-free number (1-800-567-9605 or 1-800-567-9606) toanswer any questions an individual might have in filling out an application. As well, thestaff of the Native Women's Associations are available to help in filling out theapplication forms. A listing of NWAC Provincial/Territorial Member Associations'addresses and telephone numbers are included as an appendix to this guide.To individuals who have never been registered:It is well known that a number of you, who are of First Nations ancestry have never beenregistered as Indians by the Department. The NWAC encourages you to submit anapplication for registration.In many cases you may not have the documents, such as birth and marriage certificates,that are usually required to be registered. It is important to note that a refusal by theIndian Registrar to register someone because of lack of documents, can be protested. Inthis process, the Registrar now has the authority to accept what is called "heresay"evidence. This means that you could gain registration by using such things as an oathfrom an Elder that you are an Indian.To individuals whose names may have never been removed from the Indianregister: You should not have to apply for registration. If you think that your name mightstill be on the Indian register, you can confirm it in either of three ways:1) Your band may be administering the band list. If so, contact the bandmembership clerk directly to find out if your name is still on the list;2) The district or regional office of the Department of Indian and NorthernAffairs has an alphabetical listing of names of all registered Indians thatthey serve. They can tell you if your name is on the list and what yourband number is;3) Write a letter to the Registrar at the Department of Indian and NorthernAffairs in Ottawa and ask him to confirm your band and band number.The NWAC encourages those of you seeking band membership to approach your bandsfirst before applying to the Department. If your band has not adopted membership rules,you are urged to get involved in beginning the process. You have a responsibility tomake sure that your community begins to exercise self-government again, whether theFederal Government recognizes the right or not. A first good step in achieving this, is toestablish a citizenship code based on First Nations way and not Indian Act way.Pg. 41