Collaborative Process on Indian Registration, Band Membership and First Nation Citizenship: Report to Parliament June 2019
- Message from Minister
- Legislative changes
- Collaborative process on Indian registration, band membership and First Nation citizenship
- Consultation approach and activities
- Consultation: what was heard
- Summary of consultation input
- Next steps
- Annex A: Minister's Special Representative final report on the collaborative process on Indian registration, band membership and First Nation citizenship
- Annex B: Collaborative process fact sheets
- Annex C: Collaborative process survey questionnaire
- Annex D: Overall questionnaire results by Hill+Knowlton Strategies
- Annex E: Explanation of issues under stream 2 of the collaborative process, remaining inequities related to registration and membership under the Indian Act
- Annex F: Description of the Indian Act registration categories
Message from Minister
It is my pleasure to present the report on the collaborative process on Indian registration, band membership and First Nation citizenship; a milestone in our government's pursuit of both ensuring fairness in Indian Act registration and accelerating self-determination for communities in determining their own membership and citizenship.
The government is pleased that Bill S-3, which eliminated all sex-based discrimination from registration provisions in the Indian Act, received royal assent. Provisions eliminating all remaining sex-based discrimination in Indian Act registration since the creation of the modern registry in 1951 were brought into force on December 22, 2017. The elimination of sex-based discrimination going back to 1869 will be achieved once the provisions related to the 1951 cut-off come into force. Those amendments were subject to a delayed coming into force, to allow for consultations with Indigenous partners on an implementation plan, to ensure we get this right.
Consultations under the collaborative process on Indian registration, band membership and First Nation citizenship were launched on June 12, 2018, to seek input on 3 consultation streams:
- the implementation of the removal of the 1951 cut-off from the Indian Act (delayed coming into force provisions in Bill S-3)
- remaining inequities related to registration and membership under the Indian Act
- how to go about transferring the exclusive responsibility for the membership and citizenship to First Nations
This report to parliament reflects what was heard during the consultation discussions and Ministerial Special Representative Claudette Dumont-Smith's full report has been included for further information. We now better understand what our partners need to see in a successful implementation plan to remove the 1951 cut-off. It is now our job to develop that plan as quickly as possible so that we can bring these long overdue amendments into force. The consultation has also provided important feedback on other remaining inequities, which must be addressed, as well as how we can move forward together to ensure decisions on band membership and citizenship are made by First Nations and not the federal government.
I would like to thank First Nations, Indigenous groups and impacted individuals who participated in the collaborative process and provided valuable input on these very important issues. I would also like to thank my Special Representative, Claudette Dumont-Smith for leading the consultation process.
The government will be guided by what we heard during these consultations and welcomes further feedback from parliamentarians. I look forward to a continued collaboration in achieving our shared goals of remedying all remaining inequities in Indian Act registration and seeing First Nations exercise the exclusive responsibility for determining who are the members and citizens of their nations.
The Honourable Carolyn Bennett, M.D., P.C., M.P.,
Minister of Crown-Indigenous Relations
An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) (Bill S-3) received royal assent on December 12, 2017 with the majority of amendments to remove sex-based inequities coming into force on December 22, 2017. Amendments dealing with the removal of what is commonly known as the 1951 cut-off were subject to a delayed coming into force, to allow for consultations with Indigenous partners on an implementation plan for those provisions. Consultations under the collaborative process on Indian registration, band membership and First Nation citizenship were launched on June 12, 2018, to seek input on 3 consultation streams:
- the implementation of the removal of the 1951 cut-off from the Indian Act (delayed coming into force provisions in Bill S-3)
- remaining inequities related to registration and membership under the Indian Act
- how to go about transferring the exclusive responsibility for the membership and citizenship to First Nations
Consultations involved a number of activities, including:
- community consultations with First Nations
- an online survey
- regional events hosted by the Minister's Special Representative
- expert panels
A total of 14,108 people participated in the collaborative process. This report summarizes what was heard throughout the consultation process.
Briefly, we heard that there was general support for implementing the removal of the 1951 cut-off to ensure women and their descendants who are impacted by remaining sex-based inequities under the Indian Act can be registered going back to 1869. First Nations also highlighted the need for additional funding to accommodate the delivery of programs and services to additional registered individuals, the need for more time to understand the impacts of the delayed coming-into-force amendments on their communities, and the need for access to genealogical records to assist their people in applying for registration or membership.
A number of other inequities in the Indian Act were identified as needing to be addressed, in particular how the different categories under the Indian Act and the second generation cut-off are impacting families and communities. The general consensus was that all inequities need to be addressed and that First Nations need to be involved in identifying the solutions. In order to do so, additional funding and resources are required for First Nations to engage with their members.
Ultimately, there was a clear and unequivocal message that First Nations should determine who their people are through control of their membership and citizenship. Discussions on a path forward need to be ongoing between the government and each First Nation, with enough time, funding and support available to First Nations to engage with their members.
Ms. Claudette Dumont-Smith, as the Minister's Special Representative, prepared a report to Minister Carolyn Bennett outlining what she heard during the consultations and her recommendations on how to address the issues raised during the collaborative process (Annex A).
In August 2015, a decision was rendered in Descheneaux c. Canada (Procureur général) by the Superior Court of Quebec, which declared key provisions of the Indian Act inoperative as they unjustifiably violate equality rights under the Canadian Charter of Rights and Freedoms. The Descheneaux decision highlighted residual sex based inequities in Indian registration affecting cousins and siblings that were carried forward following the 1985 and 2010 amendments to the Indian Act. It also highlighted long standing, unaddressed and broader issues relating to Indian registration, band membership and First Nation citizenship.
In July 2016, the government announced its approach to respond to the Descheneaux decision. It included 2 parts:
- legislative changes to respond to the decision
- a collaborative process on Indian registration, band membership and First Nation citizenship that would involve consultations with First Nations, Indigenous groups and impacted individuals on these broader and more complex issues, with a view to future legislative reform
This approach was consistent with the Government of Canada's priority for reconciliation with Indigenous peoples through a renewed relationship based on the recognition of rights, respect, cooperation and partnership.
An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) (Bill S-3) received royal assent on December 12, 2017, with the majority of amendments coming into force on December 22, 2017. Amendments that came into force on December 22, 2017 included immediately extending entitlement to Indian status to individuals impacted by inequities relating to the treatment of cousins, siblings or minors omitted from historic lists. Footnote 1Provisions to remove the 1951 cut-off and extend status under subsection 6(1) of the Indian Act to descendants of women who were removed from band lists or not considered an Indian by the government due to marriage to a non-Indian man going back to 1869 will come into force at a later date, once an implementation plan is developed.
Bill S-3 required the government to launch consultations on the removal of the 1951 cut-off and on specific issues relating to other inequities under registration provisions under the Indian Act within 6 months of the act receiving royal assent. This included consultations on the broader questions around First Nation control of membership or citizenship.
Bill S-3 also requires the government to report back to each chamber of parliament on 3 separate occasions:
- on the design of the consultation process within 5 months of royal assent (by May 12, 2018)
- on the consultations 1 year after the launch (by June 12, 2019)
- on the review of Bill S-3 amendments to determine whether all sex based inequities have been eliminated, and on the operation of those provisions within 3 years of royal assent (by December 12, 2020)
The present report fulfills the second requirement for a report on the consultations.
Collaborative process on Indian registration, band membership and First Nation citizenship
While various legislative changes relating to Indian registration and band membership under the Indian Act have taken place over the years, the Government of Canada is aware there continues to be areas of concern to First Nations.
In January 2011, following royal assent of the Gender Equity in Indian Registration Act (Bill C-3), an Exploratory Process on Indian Registration, Band Membership and Citizenship was launched to identify, examine and discuss the broader issues associated with registration, membership and citizenship that go beyond the amendments in Bill C-3. The information collected under the 2011-2012 Exploratory Process helped to inform the issues to be included as part of the consultations under Bill S-3.
As outlined in the report to parliament on the design of the collaborative process, the consultations under the collaborative process which were launched on June 12, 2018, were to be guided by the following key principles:
- the government would share comprehensive information with its partners in advance of consultation sessions
- the process would be as inclusive and representative as possible
- the process would be flexible
- adequate support would be given to facilitate participation
Further, the government committed to work closely with national Indigenous organizations, but also engage directly with First Nations, regional Indigenous groups, communities and impacted individuals, including Indigenous women and those in urban areas.
The consultations under the collaborative process were designed to seek input on 3 streams:
- 1. The removal of the 1951 cut-off from the Indian Act
Discussions focused on the implementation of the delayed coming into force clauses in Bill S-3 relating to the removal of the 1951 cut-off. First Nations were consulted on how best to implement the changes, and to identify what resources are required and to ensure any unintended consequences are mitigated.
- 2. Remaining inequities related to registration and membership under the Indian Act
These issues were articulated in the 2011-12 Exploratory Process, Bill S-3, and were enhanced by the input received during the co-design phase. Some of the issues discussed included: adoption, the second-generation cut-off, and enfranchisement.
- 3. First Nations' exclusive responsibility for determining membership and citizenship
Views were sought on how to move towards First Nations having the exclusive responsibility for the determination of the identity of their members or citizens.
Consultation approach and activities
A detailed consultation plan was prepared to guide the consultation activities while allowing for an inclusive and flexible process. The following summarizes the consultation approach and activities under the collaborative process.
Indigenous advisory panel
An Indigenous advisory panel was established to provide advice to Crown-Indigenous Relations and Northern Affairs Canada (the department) to help ensure that Indigenous perspectives were considered during the collaborative process. Panel membership consisted of 1 member from 3 national Indigenous organizations that represent individuals or communities who are impacted by Indian Act registration, band membership or First Nation citizenship:
- the Assembly of First Nations
- the Native Women's Association of Canada
- the Congress of Aboriginal Peoples
The advisory panel met 8 times between May 2018 and March 2019, with supplementary ad hoc discussions held as needed. In addition to providing advice and guidance, the advisory panel assisted the in the development of materials for the collaborative process, including the consultation plan, consultation guide, fact sheets, online survey, and presentations.
Minister's Special Representative
Ms. Claudette Dumont-Smith was appointed as the Minister's Special Representative to lead the consultations and provide recommendations with on a way forward on the broader issues relating to Indian registration, band membership and First Nation citizenship.
Ms. Dumont-Smith led 15 regional events across the country, held 2 expert panels, and participated in 13 community sessions. The input she received as part of these activities informed her final report and recommendations. Please see Annex A.
The collaborative process began with an information sharing period from May to September 2018 to facilitate discussions and ensure meaningful dialogues could take place during the consultation activities. The information sessions were interactive and included a presentation on the history of Indian registration, the Descheneaux decision, the Indian Act amendments under Bill S-3, and the consultation plan for the collaborative process. A total of 670 participants took part in 47 information sessions that were held across the country. Participants included:
- First Nation leadership
- members of First Nation and Métis communities and organizations
- First Nation registration/membership administrators
- legal counsel
- regional staff
Information was also disseminated through:
- e-mails to all First Nation communities
- the department's website
- social media
- departmental representatives attending community sessions
- informational print materialsFootnote 2
As part of a flexible and inclusive consultation process, proposal-based funding was provided to First Nations, treaty organizations, tribal councils, Indigenous organizations, and friendship centres for community-led sessions. There were 3 levels of funding:
- up to $10,000 for a single community
- up to $35,000 for a multi-community group/organization
- up to $75,000 for regional organizations
Two calls for funding proposals were announced via email, fax, social media, and the department's website. Social media was also used to promote the calls for funding. Eligible activities included community meetings, town hall sessions, group discussions, focus groups, dialogue circles and roundtables.
In all, 143 communities and organizations were funded for single community sessions, 25 were funded for multi-community group/organizations, and 10 were funded for regional organizations for a total of $3.1 million. Funded First Nation communities and Indigenous organizations, including Métis, urban and non-status groups, held a variety of consultation activities across the country. An estimated 10,403 participants provided input through 419 community sessions and included: community members (both on- and off-reserve), Chiefs and council, Elders, youth, consultants, and First Nation registration/membership administrators.
As part of the funding agreements, communities and organizations were to submit a report to the department outlining the information collected on the 3 consultation streams and recommendations on how the government should move forward on the broader issues related to Indian registration, band membership and First Nation citizenship. 109 reports have been submitted to date and informed the development of this report to parliament.
Copies of the community and organization reports (where permission was granted) will be translated and provided as a subsequent addendum to this report.
First Nations or Indigenous groups that did not request, or were not eligible, to receive funding for community sessions and individuals who were unable to attend a community session were able to send written submissions to the department to share their views on the consultation streams. In all, 12 written submissions were received and informed this report.
Ms. Dumont-Smith, as the Minister's Special Representative, hosted 15 regional events between November 2018 and April 2019. These regional events brought together First Nation registration/membership administrators, Chiefs, councillors, band managers and directors. There were a total of 650 people who attended the regional events.
The events were held over 2 days and included information sharing from the Indigenous Bar Association, demographic data collected by Stewart ClatworthyFootnote 3 and presentations on the issues specific to the 3 consultation streams.
Breakout sessions were held for participants to discuss these issues and submit written comments. Technical experts from the Office of the Indian Registrar as well as representatives from the regional Indigenous Services Canada offices were available during the events to provide one-on-one support to participants.
Partnerships with national Indigenous organizations
Four national Indigenous organizations were provided funding under the collaborative process to conduct activities based on their individual proposals for a total of $2.2 million. The funding was provided to:
- the Assembly of First Nations, for:
- the development of information products to support First Nation governments on the issues in the collaborative process
- a discussion paper on First Nation control over First Nation citizenship
- comprehensive research for the development of sample citizenship codes for First Nations
- participation on the Indigenous advisory panel
- the Native Women's Association of Canada, for:
- grassroots consultations through its provincial and territorial member associations
- a national symposium on remaining discrimination under the registration provisions of the Indian Act
- preparation of a final report with recommendations
- participation on the Indigenous advisory panel
- the Congress of Aboriginal Peoples, for:
- the identification of legal expertise for participation in the collaborative process
- regional engagement meetings
- development of a final report with findings and recommendations
- participation on the Indigenous advisory panel
- National Association of Friendship Centres, to fund:
- provincial and territorial associations' engagement with members
- a national summit
- development of a final report summarizing the comments, key issues and concerns raised by participants
It was noted during the co-design phase of the collaborative process that the consultations needed to include impacted individuals who could not participate in community or regional consultation activities. An online survey was developed in response to this need, targeting impacted urban individuals. The survey was also available in print format for those who requested it. Copies of the survey, along with self-addressed, stamped envelopes were provided to regional offices and First Nations to distribute as required. The printed survey is attached as Annex C and a summary report on the responses to the survey questions and demographics is attached as Annex D.
The content and wording of the survey was reviewed and informed by the input from:
- the Indigenous advisory panel
- a focus group with Indigenous departmental employees
- the Minister's Special Representative, Ms. Dumont-Smith
- a pre-test of the paper version of the survey with local First Nation individuals
- a pre-test of the online version of the survey with First Nation individuals from across the country
- a research firm with extensive experience in developing surveys, with input from specialized Indigenous advisors
The survey was administered by a contracted firm that specializes in survey development and engagement, with direction from the department. Although the survey was available to all Canadians, it was crafted to separate and analyze responses from First Nations and Indigenous individuals as compared to other respondents.
The survey was available from January 15 to March 31, 2019, and was disseminated to all First Nation communities across the country through an online link sent to Chiefs and council in January 2019. Social media was used to promote the survey to help reach urban Indigenous people who may have been unable to participate in community sessions. The National Association of Friendship Centres also promoted the survey throughout their national network. There were a total of 3,034 respondents to the surveyFootnote 4.
The objective of the expert panel discussions was to gather Indigenous experts to discuss the 3 consultation streams and to provide an academic perspective on possible future reform. Panel participants were identified as academics, scholars, published authors, lawyers, respected leaders/advocates, and Elders. An effort was made to invite participants from a wide spectrum of perspectives in order to enrich the discussion. Due to limited availability of identified experts, only 2 of the proposed 5 panels were completed with 6 participants, and they were conducted as roundtable discussions. Ms. Dumont-Smith hosted the panel discussions and was able to gather valuable input despite the limited numbers.
Consultation: what was heard
Information collected through all consultation activities between June 2018 and April 2019 is summarized in this report and sorted by the 3 consultation streams. Key messages derived from the information collected are provided, and recommendations for the government are noted when identifiable.
1. The removal of the 1951 cut-off from the Indian Act
Removing the 1951 cut-off will allow for entitlement to registration for descendants of women who were removed from band lists or not considered an Indian due to marrying a non-Indian man, going back to 1869. It will also result in individuals previously entitled under paragraph 6(1)(c) to be entitled under paragraph 6(1)(a) of the Indian Act.
Participants generally felt that the removal of the 1951 cut-off from the Indian Act is required in order to eliminate continued sex-based inequities.
As a result of the increased number of registered Indians and First Nation members due to the removal of the 1951 cut-off, the greatest concern raised by participants was the need for appropriate funding for services to First Nations, both on- and off-reserve. The primary services mentioned were: health; education (both primary/secondary and post-secondary); housing; infrastructure; cultural education; employment; and First Nation governance.
There are concerns that newly entitled individuals will apply for registration in order to take advantage of services and benefits without seeking a connection to the community or culture.
Concerns were also raised about the availability of land for First Nations. In addition to the appropriate funding for housing, many communities identified the need for additional land, not only to support existing members, but also for any new members that result from the removal of the 1951 cut-off. Land concerns relate primarily to the need for housing for First Nation members, but also economic sustainability for communities, including hunting and fishing rights.
First Nations indicated that they have not had enough time to consult with their full membership (on- and off-reserve) on the removal of the 1951 cut-off. They indicated that more time is needed to understand what the changes mean for their communities, determine all the impacts related to additional members, and to develop or update membership codes. This stems from the uncertainty around how many people could have their Indian status restored and how many may seek membership or access to First Nations' community programs and services.
Throughout the collaborative process, the issues around the removal of the 1951 cut off were often discussed in conjunction with broader issues. Considerable comments were made that the removal of the 1951 cut-off does not go far enough to rectify inequities in the Indian Act. It was noted that further changes need to be made to the legislation to address other inequities such as the second generation cut-off, the categories for registration, enfranchisementFootnote 5, and overall control of membershipFootnote 6.
As a result of the historical loss of status or removal of women and their descendants, there are cultural impacts for those individuals, the families they are connected to, and for their communities. This disconnection meant a loss of language and cultural practices. Participants noted that the need for cultural education, cultural awareness, and activities to reinforce cultural connection should be considered.
In order to address the concerns raised regarding the removal of the 1951 cut-off, First Nations strongly stated that the government must provide support to address the impacts on 5 main levels:
- funding and resources for programs and services such as health, education, housing, child and family services, and infrastructure
- increased support and resources for First Nation registration/membership administrators
- funding and resource support for First Nations to engage with off-reserve members for First Nation governance, such as sharing information or voting, and to promote and ensure cultural preservation
- the registration application forms and process needs to be simplified and streamlined with more information and assistance available for applicants
- access to genealogical information, databases such as the Indian Registration System, research, and provide support for building capacity and expertise to First Nations staff and individuals to trace ancestry
2. Remaining inequities related to registration and membership under the Indian Act
Bill S-3 identified other registration and membership inequities for the government to consult on. The issues were:
- the second-generation cut-off rule
- unknown or unstated paternity
In addition, the collaborative process also sought input on the following issues that were identified in the 2011-12 exploratory process and the co-design phase:
- voluntary de-registration
- categories in Indian registration
- cross-border issues
- children of same sex parents
- non-cisgenderFootnote 7 identities in relation to Indian registration and band membership
The key messages outline the overall input collected during the collaborative process. See Annex E for a full description of each of the identified inequities.
Concerns were raised about how individuals are registered under the Indian Act, specifically:
- the different categories under the registration provisions of the Act
- the impacts around having different abilities to transmit entitlement to children under subsection 6(2) (second generation cut-off)
- how people are treated differently based on the categories they are registered under
The second biggest issue that was raised during discussions of other inequities was to note that any further changes to the legislation to increase the number of registered Indians must come with associated funding and support for First Nations from the government. Current community funding approaches cannot support the increases in the number of registered Indians and subsequently band members. Further, the government needs to ensure that First Nations are not taking on problems created by the government without the funding and support.
Generally, participants noted that remaining inequities that exist under registration provisions of the Indian Act need to be identified and removed. People need to be reinstated and families reunited. Benefits need to be provided to all those who lost entitlement over time. There was strong support from participants that anyone that has ancestral ties to First Nations should be considered an Indian by the government or a First Nation.
Issues raised around adoption relate to 4 main aspects and are complicated by other inequities or factors:
- there is an inequity in the treatment of children due to adoption
- for example a child that has no Indigenous ancestry can be adopted and gain status while an Indigenous child may not be entitled to status due to the second generation cut-off
- the process for adoption and the recognition of adoption for the purposes of registration needs to be simplified and support provided to individuals for accessing adoption records, birth records and genealogical information
- tracing ancestral lines for both current and historical adoptions (sixties scoop) is complex, costly and takes years in some cases
- adoption into a First Nation community and adoption of Indigenous people by non-First Nation parents has an impact on individual access to benefits (health and education), personal identity, families, and connection to culture, language and community
- First Nations should have a voice, if not full control, when it comes to recognizing adoptions for the purpose of registration and membership
- all future policies around adoption should be developed by First Nations or in cooperation between the governments (federal and provincial) and First Nations
Second generation cut-off / categories in Indian registration
These inequities and their impacts related to how people are registered under the Indian Act were identified as the most significant issues that need to be addressed. These issues are too inter-connected to address separately and have been combined for the purposes of this report. The second generation cut-off is a direct function of subsection 6(2)Footnote 8 of the Indian Act. See Annex F for a summary of the Indian Act registration categories.
First Nations are the only group of Canadians who are categorized, listed and numbered. No other race, nationality or cultural group is categorized in this way.
The second generation cut-off, and the existence of subsection 6(2) of the Indian Act, has a negative impact that affects identity, family, culture, language and connection among First Nations communities and needs to be addressed. The differential treatment based on category of registration creates cultural disconnection, differential treatment of "real" or "true" Indians (those who have always been recognized as Indians) and those who have been reinstated, and impacts families of people who cannot pass on entitlement to their children.
There is a clear perception among participants that the second generation cut-off was created to "legislate" First Nations out of existence and is a form of assimilation. Participants noted that families cannot be limited to 2 generations. Some noted the need to take a longer view, a view that would be respectful of traditional teachings and the need for caring for the coming 7 generations.
The category by which people are registered (paragraphs 6(1)(a) or 6(1)(c), or subsection 6(2)) or how people were able to be registered (changes under Bill C-31) are used within communities to: label people (e.g. "Bill C-31'er"); to differentiate rights within communities (such as voting); to determine access to certain benefits; and often results in discrimination at the community level. These labels create feelings of being less of an Indian and of not belonging to a community. It was reported that such disconnection can lead to exclusion from cultural ceremonies and teachings.
More time is needed to determine how to properly address this inequity. There was mixed support for a number of options, including:
- removing all cut-offs
- shifting to a one-parent rule (requiring only one parent to be registered)
- use of blood quantum
- use of DNA
- removing the categories completely so people are either simply registered or not
- transfer of control to First Nations to decide who their people are
"The categories of 6(1) and 6(2) should be done away with. These categories create "classes" of Indians which causes friction and discrimination."
"What other nationality in Canada has categories like this?"
Unknown or unstated parentage
The lack of information, or inability/unwillingness to provide evidence of registration for a second parent, often results in children not being registered and being unable to obtain basic health care or other benefits.
The requirements to prove parentage under the revised unknown or unstated parentage policy remains problematic and results in children not being registered or entitled to registration under a lesser category (subsection 6(2)).
It is unfair and discriminatory to force women to name a father, and provide proof of registration, to get a child registered; it can also present risk to personal safety and impact psychological wellness.
The application process needs to be simplified. The additional work and requirements to collect additional statements or provincial records is both costly and burdensome. More information on the requirements as well as more assistance when there are questions is also needed.
Participants indicated that the best way to address the issue of unknown/unstated parentage issues is for registration to be based on only 1 parent's entitlement for registration rather than 2 parents.
The primary view is that anyone who was enfranchised should be entitled to reinstatement and there should be automatic entitlement for descendants of those who were enfranchised.
Ancestors enfranchised because they wanted a better life for their families, including ensuring that their children were not taken to residential schools or removed from their families. Even if the enfranchisement was listed as voluntary, it was often done under duress.
Women and children that had been enfranchised along with their husband did not have a say. Women who lost status due to marriage now have a greater ability to pass on status than women who were enfranchised due to the enfranchisement of their husband.
Enfranchisement is discriminatory as not all descendants of those who enfranchised can be registered. Bill C-31 allowed for the majority of people who were enfranchised to be reinstated, along with their children. Through Bills C-3 and S-3, the impact on descendants of Indian women who were enfranchised due to marriage to a non-Indian man have been corrected beyond 1 generation, however, these same corrections have not been made for people descended from individuals who were enfranchised for other reasons.
The issue of scripFootnote 9 has never been addressed. Taking scrip has the same impacts as enfranchisement resulting in First Nation individuals losing the ability to be recognized as an Indian under the Indian Act. To date, First Nation individuals who took scrip, or who are descended from someone who took scrip, cannot be registered under the Indian Act..
"We have always been Indigenous and we always will be Indigenous. We want to be identified and recognized for who we are. We know who we are."
The Indian Act does not allow for an individual to be voluntarily removed from the Indian Register if they are entitled to be registered. Removing the choice from individuals is deemed as an inequity.
Individuals should have the right to choose if they are registered or not, as many individuals are registered without consent by their parents as children, but cannot deregister as adults.
Concerns raised by participants include: if an individual chooses to de-register, there should be no impact on descendants; First Nations should be notified if someone is removed from the Register; and more information on how this would work and what the impacts could be needs to be provided.
The issue primarily impacts Métis and the ability for them to choose if they wish to be a registered Indian or MétisFootnote 10.
Cross border issues
Although a separate process on border issues was recently completed where the department worked in partnership with First Nations, Métis and Inuit communities to address concerns they have relating to Canada's international bordersFoot note 11, some issues were raised within the collaborative process.
Canada's non-recognition of the Jay TreatyNote de bas de page 12 creates mobility issues for First Nations in Canada crossing the Canada-United States border. Barriers at the border create negative impacts on family connections, cultural practices, and economic opportunities of First Nations in Canada who live close to the border.
Crossing the border with an Indian status card is problematic as some border crossings do not accept it as valid.
Many First Nations have family on both sides of the border. American Indians are not recognized by Canada as being eligible for registration under the Indian Act. As a result, any children born to families with an American Indian parent may not be entitled to be registered in Canada or can only be registered based on 1 parent under subsection 6(2).
The registration application requires a number of gendered terms such as "mother", "father", "maternal", and "paternal". Same-sex parents and descendants of same-sex parents face challenges to completing these forms. Issues around same-sex parents are also interrelated to gender identity and adoption.
Communities generally accept new family and parental structures of same sex marriage.
The Indian Registration System, application forms, and status cards should be gender neutral.
Regardless of the sex or gender of the parents, participants indicate that issues around same-sex parents could be resolved by having registration of children based solely on 1 parent, rather than 2.
Issues around the need to identify gender on applications for Indian registration and on Indian status cards creates inequities. First Nations are generally accepting of Two-SpiritedFootnotes 13 people and the need to pick a single gender (male or female) is viewed as being discriminatory. This includes having to identify ancestral connections by "maternal/paternal", "mother/father".
Gender labels should not be placed in the Indian Registration System, on status cards, or on registration applications. Continued use of binary gender markers (male or female) is discriminatory.
Having to identify gender-based ancestral connections reinforces gender marking and creates challenges for both gender identity and registration of children of same-sex families.
If a gender marker is needed for the Indian Registration System or status cards, a third, generic option (such as an "X")Footnote 14 should be available.
"If sex-based inequities in the registration provisions of the Indian Act have been corrected, then gender markers should be ultimately pointless."
A number of other issues were raised during the collaborative process. The 2 most common are described below.
With the passage of Bill C-31 amendments to the Indian Act, a 1985 cut-off was created. Whether an individual is born or married before or after the effective date of Bill C-31 (April 17, 1985) may impact registration of individuals and result in the denial of status and related benefits. For example, 2 siblings born or married on opposite sides of the 1985 cut-off might not have the same ability to on pass on status to their children.
Non-Indigenous women who obtained status due to marriage:
Concerns were raised about non-Indigenous women who received Indian status through marriage to an Indian man prior to 1985Footnote 15 and then divorced after 1985, retaining Indian status and the associate rights and benefits. There are inequities in that:
- these women retained registration under subsection 6(1) and despite being non Indigenous could pass on status under subsection 6(2) to any subsequent children born or adopted with a non-Indigenous partner
- in many cases, these women and their children are considered band members and can obtain benefits and vote despite having no connection to the community or not living on reserve
"Why not just give them the special category so they can't pass it on and get rid of every other category, and make status a 1 parent rule?"
The most common recommendations made by participants to address other inequities under the Indian Act are:
- share more information, provide funding for ongoing discussions, and co develop solutions to any further changes or fixes to the Indian Act with First Nations, especially with Indigenous women, leaders, and Elders
- address inequities to ensure that any direct descendant from a First Nation or registered Indian can be registered
- 1 registered parent should be sufficient in order to pass on status to a child
- provide increased funding for First Nations for any subsequent changes to the Indian Act that results in more people being entitled to registration or band membership
- simplify the legislation: individuals should simply be registered or not and there should be no categories of registration
- simplify the application process for registration, reduce the requirements, and provide more information and assistance to applicants
- provide First Nations with support and resources to assist their people in determining ancestry for both registration and membership, including funding for staff, access to records, databases, research, and capacity building for First Nations registration/membership administrators
- the burden of proof is on the applicant but it is the government who holds all records. This information should be made available to First Nations and the public
- support and empower First Nations to define who their own citizens are, in accordance with the treaties and the United Nations Declaration on the Rights of Indigenous People, rather than continued registration through the Indian Act
"…some communities are experiencing challenges for families to track down or access historical documents to support an application (a historically unreasonable evidentiary threshold)"
3. First Nations exclusive responsibility for determining membership and citizenship
Indigenous organizations and First Nations have been telling the government for many years that First Nations should be the ones deciding who their people are as members or citizens of their Nations. Bill S-3 included the requirement for the government to consult on:
- the continued federal government role in determining Indian status and band membership
- First Nations' authorities to determine band membership
Consultations under the collaborative process on these issues were intended to begin discussions and help determine next steps on how First Nations can take on the exclusive responsibility for determining membership and citizenship. The key messages outlined below continue to reflect consistent messaging that was heard following the last amendments to the Indian registration under the Gender Equity in Indian Registration Act in 2010 (Bill C-3), and in the 2011-12 exploratory process.
The government should not have control over registration, First Nation membership or citizenship. First Nations should be determining who their people are. This is consistent with self-determination under the treaties and the United Nations Declaration on the Rights of Indigenous People, the principles of self government, and historical and traditional practices prior to the government taking control beginning in 1869. Registered or status Indians are the only people in Canada who are counted, numbered and categorized by the government. This is discriminatory and goes against the rights of Indigenous people for self determination. First Nations know best who their people are, and leadership, Indigenous women and Elders should be part of any future process.
Any transfer of control over membership or citizenship must be accompanied by appropriate resources and support, including funding, land, administration, authority and capacity building. The government also needs to acknowledge that it will continue to have a fiduciary duty towards First Nations, as well as obligations under the Indian Act and treaties.
More time is needed to further discuss and build capacity within each First Nation. Although many Nations have been working towards membership or citizenship codes or laws, there are many who require time and support before they could move towards First Nation controlFootnote 16. Continued discussions could be staged to account for the varying levels of capacity of First Nations across the country.
Various concerns were raised around First Nation control, including:
- the possibility for preferential treatment
- existing members may be removed or asked to leave
- the need for an appeal process
- the need for committees, rather than individuals or leaders to make the decisions
Other concerns included:
- recognition of Indian status cards for identification outside of the community
- the need for reinforcing cultural practices with members
- an ongoing need for some government involvement in an overseer type role
- tribal councils or regional/treaty groups having a role in decisions on membership or citizenship
During the consultations, participants raised various matters that should be considered in order to move towards First Nation control of membership and citizenship, including:
- continued and ongoing discussions between the government and each First Nation to develop a plan for First Nation control of membership or citizenship
- First Nations and the government should be working under founding relationship agreements such as treaties, international commitments under the United Nations Declaration on the Rights of Indigenous People, and Canadian laws including the Canadian Charter of Rights and Freedoms, and the Canadian Human Rights Act
- there is a need for an appeal process, tribunal body or mediator to keep the process for membership or citizenship fair
- there were mixed comments on whether this should be First Nation driven or if the government would need to have a role
- the government needs to address voting and ratification processes to ensure that First Nations can develop membership or citizenship codes and laws, and have them supported by their existing members
- the current rule requiring a vote by a majority of members with a majority of those voters supporting the taking control of membership under the Indian Act ("majority of a majority") makes it difficult to engage community members, especially when First Nations have a significant portion of their members living off-reserve
- assurances are needed that the government is not transferring problems that they created for First Nations to deal with, such as, but not limited to, any existing inequities in the registration and membership provisions of the Indian Act
- there were mixed comments on whether this should involve fixing the Indian Act first, or if the focus should be on moving ahead with discussions to ensure a quicker transfer of control
- the existing funding approach used by the government for residency based programs and services would need to be discussed
- the funding relationship would have to reflect the government honouring each First Nation's determination of their people, which may include the need for funding off reserve members that may not be considered in the current funding approach
- genealogical and ancestry information held by the government would need to be made available to First Nations
- the government would also need to support First Nations in building capacity for record keeping, research and genealogy tracing
- tribal councils or other First Nation groups could also be part of understanding, managing and researching Indigenous genealogy
"The government and First Nations need to work together to create resources that will help with this transition in order for the First Nation to have a successful, sustainable self-government. Workshops and training will be essential for this process"
Summary of consultation input
Throughout the collaborative process, regardless of the activity, the following common messages were heard:
- there is general support to implement the removal of the 1951 cut-off from the Indian Act registration provisions sooner, rather than later, to ensure women and their descendants who are impacted by remaining sex-based inequities under the Indian Act can be registered going back to 1869
- more time and information is needed for First Nations to understand the issues identified in the collaborative process, engage within their communities, and to provide input on what the impacts are for First Nations on all the issues. This was reflected slightly differently for each consultation stream:
- removal of the 1951 cut-off: First Nations need more information, time, and support to consult with members and understand the impacts of the implementation of the delayed coming into force changes in Bill S-3 on their membership, community and band administration
- other inequities under the Indian Act: more time and information are needed for First Nations to work collaboratively with the government to determine how further changes could be addressed
- First Nation control of membership and citizenship: more time and information are needed for continued discussions between the government and each First Nation on co-developing a path towards First Nation control of membership or citizenship. Part of this involves time and training to build capacity within First Nations where needed
- the government needs to provide funding and support to First Nations to continue discussions, both with the government and within First Nation communities, including providing information and having departmental representatives available for discussions
- any further changes to the Indian Act need to be co-developed with First Nations, and involve Indigenous women, leadership and Elders
- the application process and requirements for registration need to be simplified. Waiting times and costs also need to be reduced. Assistance and funding to First Nation registration/membership administrators is needed. A help line with registration experts should be available to individual applicants as well
- the government needs to share access to genealogical, registration and membership records with First Nations
- First Nations should be deciding who their members or citizens are and the government should honour their decisions in the ongoing relationship with First Nations
"A timeline for implementation of this authority would need to be longer term, comprehensive and provide adequate resources, time and funding. This includes access to all genealogical records and resources that are currently held by the Government of Canada."
Crown-Indigenous Relations and Northern Affairs Canada will:
- develop an implementation plan for the removal of the 1951 cut-off
- continue to inform First Nations on the issues identified in the collaborative process and changes to the registration provisions under An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) (Bill S-3)
- work to assess, address and simplify aspects of the application process and registration requirements and provide better support and information for applicants
- work collaboratively with First Nations to develop measures for addressing other inequities related to registration and membership under the Indian Act
- continue discussions with First Nations on how to move towards First Nations controlling membership and citizenship
Annex C: Copy of collaborative process survey questionnaire
The collaborative process survey closed on March 31, 2019. For a copy of the survey, please email firstname.lastname@example.org.
Annex E: Explanation of Issues under Stream 2 of the collaborative process: Remaining inequities related to registration and membership under the Indian Act
Adoption in Indian registration
Adoption is not defined in federal law. It is currently under the jurisdiction of provinces and territories, meaning the terms can vary across the country. This could be challenging for adoptees when applying for Indian status whom must adhere to the adoption laws of their province or territory.
The concept of a "second-generation cut-off" was introduced in 1985 as part of the Bill C-31 amendments through the creation of 2 general categories of Indian registration (sections 6(1) and 6(2)). After 2 consecutive generations of parenting with a person who is not entitled to registration (a non-Indian), the third generation is no longer entitled to registration.
In response to the Gehl decision, a new provision provides flexibility for applicants to present various forms of evidence. It provides the following rules to be applied by the Indian Registrar when considering applications for registration in situations of unknown or unstated parentage:
- flexibility in the types of evidence that can be submitted
- balance of probabilities of having a parent, grandparent or ancestor entitled to Indian status
Indians who were enfranchised were removed from their band lists before September 4, 1951, or lost Indian status if enfranchised after September 4, 1951. When an individual was no longer considered an Indian, the individual lost all associated benefits that resulted from being on a band list (pre-1951) or a status Indian (post-1951). It also meant all their descendants were not considered Indian and could not obtain any related benefits. This impact affects subsequent generations of people.
Deregistration, if implemented, would be the act of removing the name of a registered individual, at their request, from the Indian Register and from the band list maintained in the department if applicable. Once deregistered, an individual would lose access to services and benefits associated with Indian status but their entitlement to registration would remain (or would continue to exist). Deregistration would not be the same as enfranchisement.
Categories in Indian registration
Section 6 of the Indian Act defines how a person is entitled to be registered under the Indian Act. The federal government has the sole authority, through the Indian Registrar, to determine who is entitled to be registered. A person may be registered under section 6(1) if both of their parents are or were registered or entitled to be registered. There are 14 categories under section 6(1) which identify how someone is entitled for registration.
Registration and the Canada-United States border
Drawing on meetings with representatives from more than 100 First Nations, the MSR's August 2017 report identifies 7 key sets of border crossing challenges. These include issues relating to registration, membership, identity and identity documents. The report also touches upon mobility rights, the Jay Treaty, immigration laws, and the experience of crossing the border at ports of entry administered by the Canada Border Services Agency (CBSA).
Indian registration for children of same sex parents
Determining Indian status for children of same-sex parents involves looking at both the biological parents and adoptive parents. For children of same-sex couples, there are a number of combinations of parents that may be present in their life. At least 1 parent, either adoptive or biological, must be registered or entitled to be registered under section 6(1) under the Indian Act in order for the child to be entitled to be registered.
Gender identity and registration for Indian status
Since entitlement to registration is determined by genealogy/lineage, there is a legislative need to record birth-assigned sex in the Indian Register. Registration currently only refers to sex as identified on official proof of birth documents and does not account for gender identity, especially when it may differ from an individual's recorded sex designation as male or female. The sex indicated on the application forms for registration as a status Indian or for the Secure Certificate of Indian Status (SCIS) must match the sex indicated on an applicant's proof of birth document.