Annex A: Minister's Special Representative final report on the collaborative process on Indian registration, band membership and First Nation citizenship
Submitted to: The Honourable Minister Carolyn Bennett, Crown-Indigenous Relations and Northern Affairs Canada
Submitted by Claudette Dumont-Smith, Minister's Special Representative
The opinions and views in this report are those of Claudette Dumont-Smith, Minister's Special Representative on the collaborative process on Indian registration, band membership and First Nation citizenship. They are not necessarily the opinions or views of the Government of Canada.
On this page
- Consultation process outcomes and recommendations
- Theme 1: Impacts of the removal of the 1951 cut-off from the Indian Act
- Theme 2: Remaining inequities related to registration and membership under the Indian Act
- Theme 3: First Nations exclusive responsibility for determining membership and citizenship (moving beyond the Indian Act)
- Annex A: Regional events (November 2018 to May 2019)
- Annex B: Panel events (November 2018 to May 2019)
- Annex C: Consultation sessions attended by MSR (November 2018 to May 2019)
- Annex D: Meetings (November 2018 to May 2019)
Since 1869, IndianFootnote 1 women, as well as their descendants, continue to experience the negative and ongoing effects of discrimination. Inequality between males and females was first introduced in the Gradual Enfranchisement Act of Indians.Footnote 2 Based on this legislation, an Indian woman was removed as a member of her band upon marriage to a non-Indian man whereas non-Indian women who married Indian men became band members.
The Indian Act of 1876 continued to discriminate against Indian women by upholding the 'marrying other than an Indian rule.' The loss of band membership as an Indian through the 'marrying other than an Indian rule' only applied to females. Furthermore, children of Indian women who married out were not to be regarded as Indians while the children of men who married non-Indians were considered as Indians under the law.
In 1951 the Indian Act was amended and therein a centralized Indian Register was established to be led by an Indian Registrar. Under section 11 of the 1951 Act, the federal government was given the authority to determine who could be registered as a 'status' Indian and also, under section 12, determine who could not be entitled. Entitlements such as living on reserve, voting rights in band elections, sharing in band monies and the ability to own and inherit property on reserve were available only to registered/status band members. By way of the Indian Act, the federal government maintains to this day exclusive control over who can be registered as a status Indian.
As a result of domestic and international pressure, several amendments have been made to the Indian Act in an attempt to remedy the existing and obvious discriminatory treatment of Indian women and her descendants. Most notably, Bill C-31, which came into force as law on April 17, 1985, addressed, to some extent, sex-based inequities in the Indian Act. With Bill C-31, the marrying out rule, the double mother rule as well as enfranchisement were removed from the Indian Act, however, the second generation cut-off rule was implemented.
In 2010, the Indian Act underwent further amendments with Bill C-3, the Gender Equity in Indian Registration Act, giving eligibility for registration to the grandchildren of women who had lost their status as a result of marrying a non-Indian male.
Bill S-3,Footnote 3 which was enacted in 2017, brought further amendments to the Indian Act to address on-going sex-based inequities. The Descheneaux case that was presented to the Superior Court of Quebec (SCQ) demonstrated that categories in Indian registration differed depending on the registrant's gender thus resulting in differences in each of their ability to acquire and pass on status to their descendants. While Bill S-3 remedied the siblings and cousins issue as well as omitted minors and unstated parentage, other sex-based inequities remain until the delayed amendments come into force.
Under Bill S-3 the removal of the 1951 cut-off from the Indian Act, with a delayed coming-into-force, will further address ongoing discrimination experienced by Indian women and her descendants. With the removal of the 1951 cut-off, descendants, of women who lost their right to band membership due to marriage to a non-Indian prior to 1951 and going back to 1869, will be eligible for registration as status Indians.
The 1951 cut-off will come into effect following consultations with First Nations through the collaborative process on Indian registration, band membership and First Nation citizenship. Other residual inequities such as adoption, second generation cut-off, enfranchisement, unknown or unstated paternity, voluntary deregistration, categories in Indian registration, cross-border issues, children of same-sex parents, and non-cisgender identities as it relates to Indians and registration and band membership were brought forward for discussion during the consultation process as well as the continued role of the federal government in determining Indian status and band membership.
In June 2018, I was appointed by the Honourable Carolyn Bennett, Minister of Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC), to assume the role of Minister's Special Representative (MSR).
My mandate was:
- to engage and consult with First Nations, Indigenous groups and impacted individuals on Bill S-3, specifically on:
- the implementation of the 1951 cut-off
- First Nations exclusive responsibility for determining membership/citizenship
- remaining inequities related to registration and membership under the Indian Act
- to provide a voice to First Nations communities on Bill S-3
- to assist in coordinating the consultation process with First Nations communities, Indigenous organizations and impacted individuals
- to produce a report of the findings on the consultations that will include recommendations
Beginning in late November and ending in May 2019, I travelled to 14Footnote 4 centrally-located regional events and also attended, as an observer, several community-organized sessions whenever my attendance was requested.
Invitations to attend the two-day regional events were sent to all Chiefs or an official community representative. Six hundred and fifty participants representing 395 First Nation communities and/or a tribal council registered at the 14 regional events. And, 424 participated in the 13 community consultation sessions attended. A listing of the First Nation communities and/or tribal councils represented, and community sessions attended are attached (see Annex A and C).
In addition, to the regional and community sessions, other meetings were held with scholars, experts and impacted individuals for added input (see Annex B and D). Five panel events had been planned, however, due to the time-frame and schedules of scholars and experts, 3 were canceled. Panel events were held in Moncton, NB, and in Regina, SK. An additional 6 meetings with impacted individuals, experts and political leaders, who wished to meet with me in a more private setting, were convened throughout the collaborative process.
This report is based on information that was presented to me at the regional and community events, from written submissions received, from discussions at other meetings held throughout the collaborative process and from government and court documents. I sincerely hope that it will accurately reflect the views, challenges and solutions First Nation leaders and impacted individuals have in regard to Indian registration, band membership and First Nation citizenship.
Based on the outcome of the 2015 Descheneaux decision, the Superior Court of Quebec (SCQ) instructed Canada to address paragraph 6(1)(a), (c) and (f) and subsection 6(2) of the Indian Act as these provisions unjustifiably infringe on the equality rights of the Canadian Charter of Rights and Freedoms. The SCQ also suggested Canada to address other remaining inequities in the Indian Act. Canada responded with Bill S-3, An Act to amend the Indian Act, which was introduced in the Senate of Canada in October 2016. The Standing Senate Committee on Aboriginal Peoples adopted Bill S-3 in November 2017, which received royal assent on December 12, 2017.
In 2016, Canada proposed a two-staged approach to respond to the Descheneaux decision. In the first stage, legislation, that came into force on December 22, 2017, addressed the sex-based inequities of the cousins and siblings issue, omitted minors and unknown or unstated parentage.
The second stage approach began in October 2017 involving a pre-consultation process with First Nations and Indigenous organizations. Their input was sought early on to assist in co-designing the collaborative process for consulting on the removal of the 1951 cut-off and broader Indian Act reform in regard to Indian registration, band membership and First Nation citizenship.
The co-design phase of the collaborative process took place between October 31, 2017 and March 31, 2018. Based on the input received, it was recommended that the collaborative process be inclusive, flexible and be carried out as follows:
- government-led/Indigenous-led activities
- face-to-face sessions
- the use of technology
- online options
The collaborative process was planned out accordingly:
- creation of an Indigenous advisory panel
- to provide advice and guidance throughout the collaborative process
- announcement of the consultation approach: June 12, 2018
- formal announcement, MSR appointment, call for funding proposals
- information sessions: June to September 2018
- information on current issues of Indian registration and consultation process (information presentation)
- community sessions
- community-organized sessions with proposal-based funding, MSR attended upon invitation
- regional events
- MSR-led events held across the country to offer a discussion-forum to share perspectives and receive input on Bill S-3
- on-line consultation
- online survey available to everyone
- panel of scholars/experts
- other government/provinces/territories
- seek input from impacted federal departments and provinces/territories
- analysis and recommendations
- consultation input from the MSR as well as the analysis of regional and community sessions including recommendations for the 1951 cut-off implementation and future legislative reform
- report to Parliament: June 2019
- will address recommendations on the 1951 cut-off implementation and changes to broader issues for future legislative reform
Based on the co-design phase, the following 3 discussion themes were put forward to guide the consultation sessions:
- Implementation of the removal of the 1951 cut-off
- Remaining inequities related to registration and membership under the Indian Act
- First Nations exclusive responsibility for determining membership/citizenship (moving beyond the Indian Act)
This report will provide a summary of my overall observations and will include recommendations for the 1951 cut-off and future legislative reform based on the collaborative process activities.
Consultation process outcomes and recommendations
Theme 1: Impacts of the removal of the 1951 cut-off from the Indian Act
The participants stated that discrimination and inequality against Indian women was a result of the colonization process and legislated in the Indian Act. Removing the 1951 cut-off will, "ensure [that] women will hold the same rights as her male counterparts." The sentiment to make things 'right' for Indian women who had, and continue to be, discriminated against was observed throughout the collaborative process.
Others stated that the 1951 cut-off should not be viewed in isolation as there were many overlapping issues to consider. Nonetheless, it was the general opinion that with proper planning and resourcing, First Nations could address the impacts of the removal of the 1951 cut-off. However, many participants raised the fact that they needed more time to discuss and to prepare for unexpected impacts with their community members.
Participants were of the view that increasing the number of members can be positive in the sense of strengthening the community. Impacts will differ though depending on the size of the community, type of governance or of being under a treaty. Many participants strongly expressed the view that Canada must not neglect nor forego its' fiduciary obligations to First Nations when making changes to the Indian Act such as those being implemented with Bill S-3. As well, promises made with the Crown in the Treaties are to be respected and safeguarded throughout this process.
Many considerations and challenges were raised by the participants concerning the removal of the 1951 cut-off. The most frequent issue raised was that adequate funding be provided before, during and after the implementation of the removal of the 1951 cut-off.
To respond to the 1951 cut-off in an effective manner, the participants stated that funding is required early on to permit communities to consult and inform their community members about the impending changes to the Indian Act resulting from Bill S-3. They also indicated the immediate need for increased program funding for registration clerks as their workload will increase significantly upon the implementation of the removal of the 1951 cut-off. Additionally, funds for researchers and genealogists to assist communities to respond to individual requests for membership will be required as well as added resources to increase capacity at the national level to meet the increased demand for registration.
Funding for many community programs and services do not meet the current need, therefore, adding new community members, without additional funding, was concerning to the participants. Additional funding must be provided in all program areas to accommodate the expected number of new registrants for housing, education, health, social and policing services. The same access to federally-funded programs and services must be made available to new members who wish to return to their community of origin.
Equally important is the need to increase the land base and the need to take into consideration the impact the increased number of members will have on the environment. Traditional hunting, fishing and gathering practices including knowledge of the cultural practices of the community need to be shared with new members.
According to the participants, the government can assist in addressing the impacts of the 1951 removal in multiple ways. Impacts, both negative and positive, can be better managed with proper planning that will necessitate new and increased funding.
To enable a smooth integration of new members to the community, participants are requesting funds to convene community information sessions on Bill S-3 in general and on the 1951 cut-off specifically. This is seen as an important and first step in the process.
It was stressed that Canada must change existing First Nations' funding formulas to meet the increased demand as a result of the 1951 cut-off. Funding must increase for administration costs including infrastructure and in all federally-funded programs for First Nations such as in housing, health, education, social and policing. The issue of the need for increased funding was emphasized at all regional and community sessions that I attended.
An issue brought up frequently at the regional and community sessions is the need to increase the reserve land base, which many indicated is presently insufficient to meet the growing registered on-reserve population. Consequently, the reserve land base must be expanded and many expressed frustrations with the Additions to Reserves (ATR) process. The process is complicated and drawn-out, and the participants requested that this process be improved overall in consideration of the 1951 cut-off.
The Indian Registration Administrators (IRA) have a key role in assisting band members with the application process for Indian status and to issue status cards. IRAs who attended the regional events stated that there is a need to increase their capacity and to provide them with more training to deal with the complexities of the 1951 cut-off. Further, there is a need to have access to genealogists and historical data on an as-needed basis.
The government must also provide timely access for government-held records such as the 1951 band and treaty pay lists as well as other archival documents. Assistance is also needed to access census data, church-held and adoption records including the names of those taken with the '60s scoop to trace lineage and/or to reach out to them as many will be eligible for registration.
Funding to reach members who live off-reserve and to develop activities that will help them reconnect to their culture and traditions was also mentioned. Raising awareness of the community's practices and culture to new members will support their acceptance at the community level and prevent misunderstandings between established community members and those who wish to return.
Recommendations: 1951 cut-off
To address the ongoing discrimination of Indian women resulting from the creation of the September 4, 1951 Register, it is recommended that:
1.1 The 1951 cut-off date be removed through an Order-in-Council by June 2019.
1.2 That Indian women and her descendants from 1869 onwards obtain an equal status and category of membership as those of Indian men and their descendants. Once the delayed amendments of Bill S-3 are enforced, this recommendation will be addressed.
1.3 That the Government of Canada provide funding to communities to carry out information sessions with community members on the 1951 cut-off and future legislative reform.
1.4 That the government provide the necessary funds to increase the administrative financial and human resources capacity to effectively manage the removal of the 1951 cut-off at the community and national levels.
1.5 That the government change current funding formulas for federally-funding programs, as noted above, available to First Nations to meet the increased need for services to Indian women and her descendants in a timely manner.
1.6 That the government make immediate adjustments to the Additions to Reserve requests and respond in a more efficient and timely manner upon implementation of the removal of the 1951 cut-off.
Theme 2: Remaining inequities related to registration and membership under the Indian Act
Firstly, the time to carry out a proper consultation to dialogue and develop and recommend solutions on the several remaining inequities in the Indian Act was inadequate at both the regional and community events. This was stated at all events I attended. The remaining inequities especially the second generation cut-off, deregistration and adoption for example warrant more time for participants to understand their impacts and to develop suitable recommendations to move forward. Though the time was limited, participants did provide some input to move forward.
There was general agreement that the remaining inequities embedded in the Indian Act should be addressed as they continue to have a negative impact on families, communities as well as the nation. Participants stated it is disheartening when some community members and families are registered, and others are denied because of set provisions within the Indian Act. It was remarked that these inequities affect all ages, "children are born and do not realize until they are in daycare that they don't have the same rights and access to services that other children have. For the first time, they don't measure up with other children."
Second generation cut-off
Unquestionably, the inequity of greatest concern that was raised throughout the collaborative process was the second generation cut-off. The effect of this inequity is felt in the community and amongst families where some family members are registered and others ineligible in spite of recent legislative changes through Bill S-3. The second generation cut-off affects every First Nation regardless of gender, ancestry, place of residence, family or marital status.
The second generation cut-off inequity has more severe impacts in communities that have a small population base, are not isolated and when there are more instances of marrying out. This will inevitably lead to a significant number of children born to a parent with Indian status yet remain ineligible for Indian status due to this cut-off. This inequity will see the gradual elimination of persons eligible to be registered as an Indian with some communities feeling this impact in the next generation while most First Nation communities, regardless of location, will feel this impact within the next 4 generations. The end result, in the not so distant future, is that some communities will no longer have any registered Indians, or the number of registered Indians will have declined significantly.
Recommendations: Second generation cut-off
The second generation cut-off inequity will impact all First Nation communities at various times and in varying degrees to the point that some communities will not have any children eligible for registration Indians within the next generation. It is, therefore, recommended that:
2.1 First Nations in collaboration with the government, urgently raise the awareness of this issue and its' impact on First Nation communities.
2.2 A separate and more in-depth consultation process begin to develop solutions to address this inequity and in removing the second generation cut-off.
The process of enfranchisement began as far back as 1869. The underlying purpose of enfranchisement was to assimilate Indians to mainstream society, thus, Indians who were enfranchised were no longer permitted to be on the band list (pre-1951), or to have Indian status (post-1951) ensuring their ties to their communities were legally severed.
Indians were enfranchised in the following ways before Bill C-31:
- Indian women who married a non-Indian
- this form of enfranchisement was solely targeted at Indian women from 1869 to 1985 (involuntary enfranchisement)
- Indians of either gender, between 1876 and 1920, were enfranchised if they:
- obtained a university degree and joined the medical or legal profession (involuntary enfranchisement)
- obtained a university degree and were deemed to be civilized based on enfranchisement requirement (involuntary enfranchisement)
- became a member of the clergy (involuntary enfranchisement)
- an Indian could also be enfranchised upon submitting an application with proof that they were civilized and acceptable to society
- this form of enfranchisement was possible from 1876 to 1985 (voluntary enfranchisement)
Children who were born to enfranchised Indians were also considered to be enfranchised.
People enfranchised or were enfranchised for many reasons. Men chose to enfranchise to prevent their children from being taken to residential schools, to defend the country and/or even to be able to hunt and fish to feed their families. Others were involuntarily enfranchised if they pursued a university education or became a member of the clergy. Both voluntary and involuntary enfranchisement continues to have an impact on the descendants of both men and women.
In one particular case, members of a community in Ontario chose to enfranchise in order to regain their hunting and fishing rights that had been given up with the signing of the 1923 Williams Treaty. They did so in order that they could feed their families. This continues to have a profound effect on the community as most members are now registered as 6(2). It is projected in the next 20 years or so that the number of children eligible for registration in that community will decrease dramatically.
Many indicated that enfranchisement was a human rights issue and said that those who had been involuntarily enfranchised and their descendants, who had no choice in the matter, should immediately be given 6(1) status and be compensated.
The policy of enfranchisement has had severe impacts on First Nations. These impacts continue to affect the descendants of those who were enfranchised as far back as 1869 in spite of Indian Act amendments. The remaining inequities resulting from the enfranchisement process must be addressed.
2.3 The government must provide the names of all persons who have been enfranchised as far back as 1876 to their community of origin so that they can trace the lineage of their descendants for re-instatement.
2.4 All persons who are currently categorized as 6(2) as a result the enfranchisement process should be re-instated as a 6(1).
Categories in Indian registration
There are 2 major categories to be registered as an Indian under the Indian Act. If both parents are registered or are entitled to be registered as being status, they are entitled to be registered as 6(1). When 1 parent is deemed to be entitled to status but not the other parent, the children are registered as 6(2). Passing on Indian status is dependent on either of these categories with less ability to pass on status if you are a 6(2). There are 14 sub-categories under 6(1) with each section providing an explanation for registration.
According to some participants, Indian women continue to be discriminated against under the 6(1)(c) section of the Indian Act, which was a section created with Bill C-31. Women and her descendants who were born before 1985 were reinstated in this class while males and their descendants are categorized as 6(1)(a).
Recommendations: Categories in Indian registration
2.5 That the government address the ongoing discrimination of Indian women and her descendants resulting from the 6(1)(c) category of the Indian Act and amend the women's category from 6(1)(c) to 6(1)(a) status by June 2019.
Unknown or unstated paternity
Prior to Bill S-3, children who had a parent or a non-stated parent had an impact on how they were registered. It was assumed that an unknown or unstated father was not entitled to registration, therefore, the child's registration was based on only parent being eligible for registration so that child was either registered as a 6(2) or, in some situations, not eligible at all.
It was left to the applicant, women in most instances, to produce evidence to the Registrar of the father's Indian status. The burden of providing proof for parenthood was ruled by the Ontario Court of Appeal as being unfair to women in comparison to men. Further, the court ruled that the Indian Act did not require such evidence to be provided for registration.
This inequity has been addressed with Bill S-3. The Registrar must now apply the following rules in regard to unknown or unstated paternity:
- flexibility in the types of evidence that can be submitted
- balance of probabilities of having a parent, grandparent or ancestor entitled to Indian status
Recommendations: Unknown or unstated paternity
Enacted with Bill S-3 (December 12, 2017).
"As Nations, we recognize ourselves as Nations. The Jay Treaty addressed that." Cross-border issues were brought forward from participants whose communities are located close to the United States (US) border and who still maintain strong familial and cultural ties with Native American Indians.
The issue of marriage and the birth of children between Indians and Native American Indians is a matter of great injustice because the children of these unions have parents who are both "Indian," and often of the same nation but are registered as 6(2) in Canada as a result of the Native American Indian not being recognized as a status Indian in Canada. This was widely viewed as being unfair and an inequity that needed to be addressed while examining other Indian Act inequities.
Recommendations: Cross-border issues
A border between Canada and the US was inexistent prior to the arrival of the settlers. The territories of Indian nations extended across both countries. Since the establishment of the Canada/US border, interrelationships and kinship ties have been affected. It is recommended that:
2.6 Regardless of country of citizenship of the Indian parents, children born of Indian and Native American Indian citizens be classified as 6(1) Canada.
2.7 Children born of Indian and Native American Indians should be given dual citizenship at birth.
There was much discussion surrounding adoption. The participants were especially concerned with the loss of their members through the adoption process. They want to gain access to adoption records for the purpose of bringing their members back home. This was particularly stressed at the Atlantic regional events where access to adoption records are kept 'closed' in Nova Scotia. They stated that, in the past, many children were taken from the communities without consent and adopted out.
A concern that was brought up several times was the adoption of non-Indian children who can obtain full status when adopted by Indians. Though they have no Indian blood, status can be transmitted to their descendants. This was seen as being unfair and it was stated that the community should be more involved in the adoption process and to have a say in who can be a band/community member.
Many Indian children, who have a right to be registered as an Indian, were adopted out. The names of those adopted out should be provided to First Nation communities so they and their descendants can be traced and added to the membership list.
2.8 The government must assist First Nations in identifying those who were adopted out by providing access to adoption lists/records in respect of privacy laws.
2.9 The government must raise this issue at the federal/provincial/territorial roundtables to develop strategies to give First Nations access to provincial/territorial closed adoption lists/records where those exist.
2.10 The government must recognize and grant Indian status and Canadian citizenship to children who were adopted out in other countries.
2.11 First Nation communities should be given the authority to determine if adopted children can become registered as Indians of their band.
Children of same-sex parents
A child of same-sex parents can be registered if one of the parents is registered according to the Indian Act rules in regard to registration. There is, however, an issue that must be addressed for same-sex parents in the registration application, which requires the father's family name as well as the maiden name of the mother. This should not apply for same-sex couples and may force them to include a name of a parent that isn't applicable under the circumstances and which may cause problems later on.
Recommendations: Children of same-sex parents
The requirement to have the father's family name and mother's family maiden name for children of same-sex parents may lead to presenting false information that can lead to future legal issues later one.
2.12 The government must make adjustments to the current registration form to allow the names of same-sex couples as parents of the children.
The Indian Act does not have any current provision for deregistration. Deregistration would permit removal of a registered person's name from the Indian Register. Persons may want to deregister for several reasons such as wanting to identify and register as a Métis, belong to an American Indian tribe or for personal reasons. Whatever the reason, this option should be a provision included in the Indian Act. For section 11 bands, the name of the person would be removed from the band list as well, however, for section 10 bands or those under self-government agreements, the process of removing a name and the consequences of making this request would be at the discretion of the band or according to the self-government agreement stipulations. A person choosing to deregister could lose access to the benefits and services provided to registered Indians but their entitlement to registration would continue to exist.
The Indian Act must include a provision to permit a person to deregister as a status Indian person. The inability to have this provision in the Indian Act prohibits a person to become a member of his/her desired group/nation for identity, cultural and citizenship reasons.
2.13 A provision should be included in the Indian Act allowing individuals to deregister as a status Indian.
2.14 Descendants of individuals who deregister would not have their names removed from the Indian Act when this provision is added.
2.15 Persons who wish to identify as Métis should be permitted to deregister upon request.
Gender diversity is not addressed in the Indian Act; however, all sex-based inequities were amended under the Bill S-3 amendments. The amendments are gender neutral and are to be applied equally, regardless of gender identity or expression and in keeping with the Canadian Charter of Rights and Freedoms and the Criminal Code.
Gender diversity includes those who are assigned their gender at birth but can later identify with the opposite sex, with a combination of genders or no gender identity such as a transgender, non-cisgender or non-binary person. Indian registration at the current time only refers to sex as officially recorded at birth and does not recognize gender diversity.
Recommendations: Non-cisgender identities
Though gender neutral amendments were amended under Bill S-3, these are not reflected in the registration forms and/or status cards.
2.16 The registration to Indian status and status cards must include a non-binary option to reflect that choice.
Theme 3: First Nations exclusive responsibility for determining membership and citizenship (moving beyond the Indian Act)
The majority of participants agreed that determining membership is a First Nations responsibility and, "wasn't given up, it was always our responsibility and we need to take ownership. We didn't give the responsibility up." Control of membership by First Nations will eliminate the different categories of status created through the registration provisions of the Indian Act. Membership to a community, as was in the past, should be based on the knowledge of elders and family lineage as well as on traditional laws. It was the view of many that determining who is a member of a community is a right of self-determination and underpins a fundamental principle of self-government.
It is, many felt, important to have control of membership. It was frequently raised how the current system has allowed persons with no Indian blood the right to be registered as Indian while others who should be are denied. Many raised the fact of non-Indian women gaining status upon marriage to Indian men prior to 1985 giving them the ability to transmit status to their children even if they parent with non-Indians following separation and/or divorce. Their children too can pass on Indian status. Participants brought this issue up as an example of the unfairness of the Indian Act provisions regarding registration.
Though the majority were in favour of taking on this responsibility, factors that must be considered before moving forward include the engaging of community members in regard to this undertaking, the development of membership codes based on traditional laws and practices, funding to carry out research, development of databases as well as seeking legal direction as they begin this process. Concerns were raised about liability risks and the need for the government to provide funding for legal support early on is necessary and was seen as an important component in the devolution of this responsibility to First Nations.
The nation-to-nation relationship that is recognized in the treaties is consistent with this process and with the reconciliation efforts of the government. However, the participants felt that, here to, foundational work needed to be done in order to prepare adequately to take back this responsibility. The participants indicated that this process should begin immediately, however, noted it may be a lengthy process that would help in the re-building of their nations.
Recommendations: First Nations exclusive responsibility for determining membership and citizenship (moving beyond the Indian Act)
It was the opinion of the majority that First Nations retake the responsibility of determining their members, which was taken from them through the colonization process. It is recommended that:
3.1 The government and First Nations work collaboratively to begin the process of transferring the exclusive responsibility for determining membership and citizenship to First Nations.
3.2 The government provide the necessary funding to First Nations to do the necessary groundwork to carry out research, develop membership codes, protocols and criteria to develop plans based on their beliefs, traditions and customs.
This report highlights the ambitions and the concerns of First Nations in regard to Indian registration, band membership and First Nation citizenship. The collaborative process, though limited in time and scope, provided an opportunity for people to come together and begin to discuss how the delayed amendments of Bill S-3 will impact First Nation individuals, families and communities.
All who participated in the collaborative process provided invaluable guidance and direction on how best to move forward in implementing Bill S-3. With the implementation of the Bill S-3 delayed amendments, sex-based inequities experienced by Indian women and their descendants will be addressed by removing the 1951 cut-off date from the Indian Act registration provisions and going back to 1869 when enfranchisement regulations for women was first introduced.
Input to address other inequities that remain in the Indian Act were also brought forward during the collaborative process. Issues such as the second generation cut-off, enfranchisement, cross-border issues, deregistration, gender identity and adoption continue to have an impact on individuals and families. The inequities and discrimination ensuing from these issues need to be addressed and the Indian Act amended accordingly. However, because of the collaborative process schedule, the time-frame was too short to fully discuss each issue in depth and to develop feasible solutions with First Nations and impacted individuals. It is, therefore, urgent and necessary to consult further on these issues.
The government took away the responsibility from First Nations in deciding who would be an Indian and who would not be an Indian. First Nations view this as their responsibility because of their knowledge of who their people are as transmitted from generation to generation and in keeping with their self-determination and self-government aspirations. Again, further discussion is necessary on this issue especially in relation to the treaties and the fiduciary responsibility of the government vis-à-vis First Nations.
It is important to remember in moving forward that any changes to the Indian Act will impact both the status and non-status Indians living both on and off-reserve or as one participant said, "home or away-from home," in describing the members not residing in their community. The Métis as well are impacted with any changes to the Indian Act. They brought to light the fact that the collateral effects of the collaborative process and outcomes will necessitate a need to educate their people about making informed decisions about applying for registration as a status Indian. Currently there is no provision for deregistration so once they do become registered, they must give up their Métis membership as they cannot be members of both according to the Manitoba Métis Federation constitution. This is of great concern and worry to the Métis Nation community as many may be doing so solely for economic advantages.
In closing, I would like to acknowledge and thank all those who participated and provided input in the collaborative process by attending the community and regional events, in private sessions/meetings, in submitting reports or other written submissions as well as in private conversations. Last but not least, I would like to thank all the CIRNAC staff, most notably, Chad Kicknosway, who accompanied me everywhere on this challenging but interesting journey.
Migwech, Thank You, Merci!
Annex A: Regional events (November 2018 to May 2019)
|Regional Event||Attending Invitees (FN/TC)||Invitees unable to attend (FN/TC)||Number of participants|
|Whitehorse, YT||Total: 13||Total: 6||23|
|Prince Albert, SK||Total: 31||Total: 25||48|
|Yellowknife, NT||Total: 20||Total: 11||26|
|Toronto, ON||Total: 20||Total: 17||32|
|Ottawa, ON||Total: 11||Total: 9||19|
|Halifax, NS||Total: 26||Total: 18||42|
|Regina, SK||Total: 25||Total: 20||41|
|Edmonton, AB||Total: 31||Total: 36||60|
|Nanaimo, BC||Total: 28||Total: 30||38|
|Vancouver, BC||Total: 44||Total: 71||65|
|Prince George, BC||Total: 31||Total: 45||41|
|Winnipeg, MB||Total: 38||Total: 27||70|
|Wendake, QC||Total: 32||Total: 18||47|
|Thunder Bay, ON||Total: 25||Total: 50||45|
|Edmonton (Treaty 8), AB||Total: 20||Total: 8||53|
Annex B: Panel events (November 2018 to May 2019)
|Panel event||Number of invited||Number of unable to attend||Number of participants|
January 19, 2019
|10||8||2 participated in Moncton, NB|
February 2, 2019
|6||5||1 participated in Moncton, NB|
February 16, 2019
February 23, 2019
March 9, 2019
Annex C: Consultation sessions attended by MSR (November 2018 to May 2019)
|Community/organization||Location and date||Participants (in general)||Approximate number of participants|
|Red Rock Indian Band||Lake Helen, ON
November 26, 2018
|Chief, Elders, community members, youth drum group||13|
|Peter Ballantyne Cree Nation||Prince Albert, SK
December 18, 2019
|Chief and councillors, Elders||18|
|Anishinabek Nation (Union of Ontario Indians)||Sault Ste. Marie, ON
January 16, 2019
|Community reps, Elders, UOI staff, IRAs and urban community member||25|
|Gwich'in Tribal Council
January 30-31, 2019
|Chiefs, councillors, tribal council staff, Elders||18|
|Mohawks of Akwesasne||Akwesasne, ON
February 6, 2019
|Chiefs, councillors, Elders, community members||41|
|Paqtnkek Mi'kmaw Nation||Paqtnkek, NS
February 10, 2019
|Chief, councillors, band staff, Elders, youth, community members||85|
|Confederacy of Mainland Mi'kmaq
||Millbrook First Nation, NS
February 11, 2019
|Chiefs, councillors, band staff||18|
|Glooscap First Nation, NS
February 12, 2019
|Chiefs, councillors, band staff||10|
|Yellow Quill First Nation||Yellow Quill First Nation, SK
February 19, 2019
|Band staff, Elders, community members||50|
|Cowessess First Nation||Regina, SK
February 23, 2019
|Chief, band staff, community members, online viewers||27|
|Nooaitch Indian Band||Nooaitch Indian Band, BC
March 5, 2019
|Council rep, 2 band staff, Elders, community members||48|
|North West Indigenous Council Society (NWICS)||Vancouver, BC
March 10, 2019
|President, NWICS staff, community members||30|
|Manitoba Métis Federation||Winnipeg, MB
March 28, 2019
|President and executive council||11|
|Gitxaala Nation||Kitkatla, BC
April 30, 2019
|Chief and council, hereditary council, Elders||30|
Annex D: Meetings (November 2018 to May 2019)
|Organization or individual(s)||Location and date||Participants (in general)|
|Jeremy Matson, individual||Richmond, BC
March 11, 2019
|Conseil de Pekuakamilnuatsh
(Communauté de Mashteuiatsh)
March 21, 2019
|Staff, director, counsel, IRA|
|Congress of Aboriginal Peoples||Ottawa, ON
April 3, 2019
|Chief, president and staff|
|Senator McPhedran||Ottawa, ON
April 8, 2019
|Native Council of Nova Scotia||Truro, NS
April 11, 2019
|President and staff|
|Sharon McIvor, individual and guests||Richmond, BC
April 28, 2019
|Sharon McIvor and 3 guests|
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