Considering Membership Codes
By Peter Nyhuus
The Government of Canada has made recent changes to the criteria for “Indian Status.”
Is now the right time for your First Nation community to take control of your membership list by developing a “custom membership code”?
The Indian Act of 1876, gives the Government of Canada control over the governments, economies, lands, citizenship and identities of First Nations and First Nations peoples. This colonial policy decides who qualifies as an “Indian,” and in most cases, still determines which “Indian” belongs to which “Indian Band.” Almost 150 years after its enactment, the Indian Act authority to grant “Indian Status” (“Status” for short) continues to have a profound impact on the personal and political lives of First Nations people in Canada.
Under the original terms of the Indian Act, only a person with Status had the right to live on reserve, run for leadership, vote in elections, and share in band monies. By controlling Status, Canada controlled who qualified for Band membership, who could participate in Band politics and society, who could live on reserve, and who could be part of a First Nations family.
This has had an impact across generations. In multiple lawsuits, courts have repeatedly determined that the Indian Act discriminates by making it harder for Indigenous women to pass Status on to their children than it is for Indigenous men to do the same.
To address this discrimination and other unfairness, Canada has made amendments to the Indian Act, broadening who fits under the umbrella of Status. (You can read more about the details of these changes here.)
This is a positive step, but it comes with implications that First Nation communities must now consider.
Here’s the challenge: changes to Status will also change who qualifies for Band membership.
Some individuals who were previously ineligible for Status may now wish to be added to a Band List. Some Bands may welcome these new Status individuals to their communities, others may have legitimate concerns about the strain this membership growth might put on Band resources.
An important tool to help manage this change
Since 1985, Bands have been able to ‘opt out’ of the Indian Act’s rules for membership by developing their own “custom membership code.”
Creating a Membership Code is an act of self-governance and self-determination which permits First Nations to control on their own terms who belongs to their Nation.
Making the Switch: Membership Code Requirements
A First Nation wishing to change its membership rules by enacting its own Membership Code must fulfill several requirements. It must first:
- provide notice to its electors (the band’s current membership), as well as the Minister of Crown-Indigenous Relations, of its intention to assume control of its own membership and to establish new membership rules;
- obtain consent of a majority of its electors to do this; and
- set out the new Membership Code in writing, including processes for appealing membership decisions.
Opting out of the Indian Act membership rules gives the Band complete control over its membership.
But with this control comes responsibilities.
Communities must reflect on how they want their membership to be comprised: who will they welcome to their community and how will membership be passed down for future generations? What will be the process for applications, for membership decisions, for appeals and amendments?
A consequential choice – pros, cons and human rights
It’s important to note that Membership Codes only determine membership of the First Nation – not Indian Status. This matters because Band funding arrangements with Canada are generally based upon the number of Status members. Growing your membership by including non-Status persons can therefore stretch a band’s resources.
But excluding non-Status persons comes with consequences as well.
One example is the Indian Act’s “second-generation cut-off.” This rule states that those who have a non-Status grandparent and a non-Status parent are themselves not entitled to Status. For many First Nations the “cut-off” rule creates a generation of children who, due to their lack of Status, are prohibited from full participation in the life and direction of that community. Blocked from full membership in society, these generations may have incentive to leave – putting the long-term sustainability of communities at risk.
Using a Membership Code to eliminate Status as a requirement for band membership may be one way to address this concern.
A First Nation must also ensure that its new Membership Code is compliant with the Charter of Rights and Freedoms—that it does not inadvertently discriminate on the basis of gender, sexual orientation or residency (living on- or off-reserve).
And it must, ultimately, involve significant community input and consultation, followed by careful drafting.
Is now the time for a custom membership code?
Membership codes can be a sensitive and difficult subject. It requires a great deal of self-reflection and deliberation to design a custom membership code that addresses the interests and concerns of your community.
But despite the challenges, the recent amendments to the Indian Act regarding the rules for Status, make this the right time to consider developing, or revising, a custom membership code.
DGW lawyers have had the privilege of assisting several First Nations through the process of assuming control over their membership. We can help your First Nation design a community consultation process, and develop and draft a modern membership code that responds to your community’s desires and hopes for the future. Please contact us if you would like to discuss taking this important step of self-determination.
Map source: First Nations People of British Columbia, Ministry of Education, British Columbia. http://www.bced.gov.bc.ca/abed/map.htm