C.A.P. Profile
What's New
Affiliates/P.T.O.s
Programs and Issues
Native Web Site Links Database
Special Features
Congress of Aboriginal Peoples

Bill C-31: The Abocide Bill  
 
by  
Harry W. Daniels   
Former President , Congress of Aboriginal Peoples  

(Note: Speaking notes related to this text are avaialble at this link 

The French have a saying: "Plus que ca change, plus que c'est la meme chose." The more things change, the more they remain the same. This adage aptly describes the changes that Bill C-3 1 brought about more than ten years ago. It is not that the changes Bill C-3 1 made were unimportant, even less that they were ineffective. The amendments Bill C-3 1 made to the Indian Act are without a doubt the most important that had ever been made to the Indian Act regime in its over 100 years of existence. They have affected and continue to affect the lives of Indian and Metis people everywhere in Canada.  

Since 1985, over 100,000 Indian people have acquired Indian Status as a direct result of Bill C-31. There can no question that the Bill has been effective: in fact, no piece of legislation has had a greater impact on the masses of Indian and Metis people in the last ten years than has Bill C-31.   

Yet the more we examine Bill C-3 1 and the effects it has had on the Aboriginal peoples of Canada, the more we are brought to realize how little things have changed after all. The Bill not only continues but will actually accelerate the extermination policies - the integration of Canada's Indian population into mainstream society - that have always been at the heart of the federal Indian Act regime. So serious are the Bill's implications in this regard that, within a few generations, there may no longer be any Status Indians left in Canada.  

The elders tell us that when faced with a confusing and difficult situation if a name can be put on the problem, then you can deal with it. There has never been a name for Bill C-3 1, and it strikes us that it needs one. For us, the Bill is the "Abocide Bill', which is not quite the same thing as genocide, but close. Like genocide, it refers to the extermination of a people; in this case, the extermination not of Indians per se, but of their status as Aboriginal people.   

Overview of Bill C-31  

The Bill did essentially four things:   

Ô it rescinded the "enfranchisement" provisions of the Old Indian Act, and provided for the "reinstatement" of persons who had lost their Status as a result of those provisions; 
Ô it did away with the "patrilineal" definition of eligibility for Indian Status and replaced it with new gender neutral eligibility rules;    

Ô it enabled Bands to assume control of their Band membership list on condition that they adopt a Membership Code that conforms to the Bill; 

Ô it allowed Bands to deny membership to certain classes of Status Indians who would otherwise be entitled to membership if control of the Band List had continued to reside with the Department of Indian Affairs. 
The major impetus for the Bill was clearly to make the Indian Act conform to section 15 - the equality rights section - of the Canadian Charter of Rights and Freedoms. The provisions of the Old Act which most obviously offended the equality rights guaranteed to all residents of Canada by the Charter were those that stripped any a Status Indian women who married white or Non-Status of her Status and any right to confer it on her children, while not doing the same for Status Indian males. A Status Indian male who married Non- Status not only retained his Status, but endowed Indian Status on his children and his non-Indian wife as well. These provisions of the Old Indian Act, in particular section 12(1) (b), were so clearly discriminatory that they had no hope of prevailing against the Charter. They had to go.    

As these sections were now constitutionally invalid, the "enfranchisement" of Indian women that had taken place pursuant to them was now also invalid. The federal government was therefore forced to provide for the "reinstatement" of the Indian people they had affected. And having gone this far, Ottawa decided to revoke all other sections of the Indian Act under which a Status Indian could be "enfranchised" and to provide for the reinstatement of all those who had lost their Status on their account.    

Given the motivations for the Bill and this concern with equality rights, Bill C-31 naturally raised expectations that henceforth all Indians would be treated the same. It was widely expected that the Bill would finally do away with the category "Non-Status Indians" and that, in the future, all Indians would be recognized as Indians under the Indian Act. To most Indian people off-reserve, acquisition of Indian Status implied that they would also be accorded the rights and benefits that the Indian Act regime had traditionally reserved for Status Indians.  

This is the first major failing of the Bill. Not only does it not ensure the equal treatment of Indian people, it actually propagates and reinforces the "caste system" into which the Indian Act has historically divided Indian people. It does not even eliminate the category "Non-Status Indians"; rather, as we shall see, it creates the conditions for a rapid expansion of the Non-Status Indian population in the future. At the same time, it divides the Indian population of Canada into even more classes than ever before in terms of legal rights, while reinforcing the historic division between on and off-reserve Indians that the application of 100 years of integrationist policies has produced and that the Indian Act continues to promote.   

Now, it was quite obvious to all at the time that the source of the problems that the Indian Act was having with the Charter of Rights lay in the "patrilineal" rule that had traditionally been applied to determine eligibility for Indian Status. Under the Old Act, if your father was a Status Indian, you were Status Indian; and if your father was "white" or Non-Status, you were "white" or Non-Status. The mother alone could not confer Indian Status. This rule had to go. However, this raised the difficult question of how eligibility for Indian Status would in the future be determined. The only condition was that, whatever the solution, it had to be gender neutral; that is, it had to treat men and women the same.    

Theoretically, this could have been accomplished in any number of ways. For example, the federal government could have given Indian women the same power as Indian men had under the Old Act to confer Indian Status on their children. In this event, a Status Indian women would have acquired the right to confer Indian Status on her children, no matter what the ethnic background of her partner, in the same way that Indian men under the Old Act could do. All Status Indians, whether male or female, would thereby have been acknowledged the right to pass on Indian Status to their children. What's wrong with that? The solution is gender neutral and has the advantage of simplicity. It would have been a reasonable solutiopn and in keeping with the traditions of Indian nations everywhere.    

However, this was not the solution the federal government adopted. Rather than raise Indian women to the same power as men, the federal government chose to place Indian men in a position akin to that of women under the Old Act. From now on, the children of Indian men who married Non-Status as well as those of Indian women who married Non-Status could be denied Indian Status. Under the Old Act, this occurred the moment a Status Indian women married someone without Indian Status. This position was obviously untenable. Instead, the issue was pushed back one generation. Bill C-31 adopts the rule that after two consecutive generations of marrying Non-Status, children of the third generation are not eligible for Status. The same rule applies to both men and women. Is this solution that Indian people anticipated when they accepted the need to ensure sexual equality? We think not, but that is the solution they got.    

This is the second major problem with Bill C-3 1. The federal government has no business telling Indian people whether they are Indian or not. It did this under the Old Indian Act, with disastrous consequences for hundreds of thousands of Indian people; and it is doing it again with Bill C-31. Once again, the consequences will be disastrous. Within the next twenty years, the new Status rules will result in the disqualification of hundred's of thousands of descendants of today's Status Indians. They will start reducing the Status Indian population, certainly off-reserve, but quite likely on reserve as well. And they will lead to a new explosion of the Non-Status Indian population, fed this time by both male and female unions with Non-Indian partners.    

The federal government has no similar rule to determine who is an Inuit or who is Metis or who is French Canadian for that matter. The reason it has such a rule for Indians should be recognized for what it is: a freak of history, completely unjustifiable in the contemporary world.    

Having devised new gender-neutral Status rules, the federal government was then faced with the question of how to implement them. If there had been any logical imperative to the new rules, the federal government would have sought to implement them immediately and universally to all Indians. However, not even Old Act Status Indians could be assured of passing the genealogy test the new rules imposed. Rather than risk having to once again "enfranchise" Status Indians, Bill C-31 simply accepts that anyone with Indian Status at the time the Bill comes into effect is a Status Indian and retains his or her Indian Status, irrespective of the new rules. Similarly, the Bill absolves anyone who had once had Indian Status but who had lost that Status from having to meet the requirements of the new rules.    

Section 6(1) simply declares them eligible for Status and reinstatement as Status Indians. The Bill also provides that the children of any Status Indian living at the time the Act was passed, including the children of Indians who had had their Status restored to them, are all eligible for Status.    

The new rules do not therefore kick-in right away, in generational terms at any rate. They do not apply to the generation of Status Indians who had obtained Status under the Old Act, nor to Indians who had once had Status under the Old Act but who had lost it through "enfranchisement", only to have it restored to them through Bill C-3 1. Nor to they apply to their first generation of descendants, the children of Old Act Status Indians are all automatically recognized as Status Indians. The new rules start making themselves felt only for the second generation of descendants of today's Status Indians: the grandsons and granddaughters of pre-1985 Status Indians and of Indians who have had their Status restored. To qualify for Indian Status, this generation will have either:    

Ô to have both parents Status Indians; or 
Ô one parent a Status Indian both of whose parents were Status Indians. 
Many will not be able to meet this test. For example, the grandson or grand-daughter of 12(1)(b) Indian women, whose daughter, the child's parent, has also married white or Non-Status, would not be eligible for Status, since that child's lineage would include only one Status Indian parent and only one Status Indian grand-parent, not two as the rules require. The new rules obviously place tremendous pressure on existing Status Indian communities to take steps to maintain the "racial" purity of their community and to discourage unions with Non-Status partners. Given the long history of inter-marriage between Indians and European immigrants to the New World, and the high incidence of out-marriage among Aboriginal peoples today, such attempts are likely to prove futile in the long run, ethically controversial in the short run and politically suicidal in the medium term. It is much better to see the new rules for what they are: a modern attempt at the extermination of the Status Indian population, and to fight them on this ground.    

Canada's Indian community has however been slow to react to this fundamental change in Status rules. This can be explained in part by the fact that the new rules are like a time-bomb with a delayed fuse: Indian populations have not yet really felt their impact. But a second and perhaps more important reason is that all eyes have up to now been focused on the tremendous increase in the Status Indian population to which the reinstatement process put into place by Bill C-31 has given rise. Since 1985, over 115,000 Indian people have obtained Indian Status as a direct result of the Bill. The Status Indian population has accordingly ballooned, particularly off-reserve, in the last ten years. As we shall see later in this paper, this phenomenon is ephemeral. It will pass in relatively short order; after that, "le deluge". But in the meantime, the seemingly positive short-term effects that Bill C-31 has had on the Status Indian population are distracting people from the long term consequences of the Bill.    

However, one short-term effect that Indian people have already begun to feel, much to their regret, is the increased complexity of the "caste system" to which Indian people are subjected under the Indian Act regime. For in addition to the Status Indian and Non-Status Indian categories inherited from the Old Indian Act, the reinstatement process under Bill C-3 1 has created a new category of Aboriginal people, commonly referred to as C-31 Indians. Legally-speaking, there is no such thing as a C-31 Indian; the Indian Act recognizes only Status Indians, and C-31 Indians are officially Status Indians like any other. However, technically-speaking, the term has come into usage to distinguish those Status Indians who owe their Status to Bill C-31 from those who would have had Status even under the Old Act. C-31 Indians are therefore Indians who obtained their Status exclusively because of the amendments Bill C-31 made to the Indian Act, and who would not have had it otherwise. This group includes basically two categories of persons:    

 1) Indians who had lost their Status under the Old Act and who  had their Status restored only because of Bill C-3 1; and    

 2) the children of these persons born before the Act came into  force and who were not therefore eligible for Indian Status at  the time they were born but who became eligible for Status as  a result of Bill C-3 1.    

Of the 115,000 Indians who have acquired Status by virtue of Bill C-31 since 1985, a little over 23,000 fall in category (1), that is, they are persons who have had their Status restored; and the remaining 92,000 fall in category (2). [1] For all practical purposes, Bill C-31 establishes a regime that divides Indian people into at least four major castes:    

 1. Old Act Indians: Indians, mainly on reserve, who had Status  even before Bill C-31;    

 2. Restorations: C-31 Indians who have had their Status  restored to them by virtue of Bill C-3 1;    

 3. First Generation Reinstatements: the children of C-31  Indians who had their Status restored; and    

 4. Non-Status Indians: persons of Indian ancestry who are not  eligible for Indian Status neither under the Old Act or Bill C- 31.    

Nominally at least, Indian Bands already knew all the people to whom Bill C-3 1 restored Indian Status. They had already once had Status; most had once lived on a reserve; many continue to have close relatives on the reserve. But the same could not be said of their children. By no means are all the persons in this second category of C-31 Indians children today - many would be adults by now - but they are all people whom had never previously had Status and whom, unlike restorations, the existing Status Indian communities do not know.    

Existing Status Indian communities looked at the prospect of having to integrate C-31 Indians with some ambiguity. On the one hand, this would enable the consolidation of Status communities and their extension off reserve; on the other, existing communities were being asked to accept new members that they did not know and whom they did not necessarily wish to have. Partly to attenuate fears that Bands would be forced to accept all C-31 Indians in their membership, and partly to recognize the right of self-government, the federal government decided to give Bands a choice in the matter. Bill C-3 1 enables Bands to assume control of their Band List, if they chose, and henceforth to administer it according to the Band's own Membership Code. Though membership codes cannot exclude persons who were members of the Band before the code came into effect, [2]  they can exclude Status Indians who acquire their Status after it comes into effect. Furthermore, any Band that adopted a membership code before April 17, 1987 could exclude all those persons who had been reinstated since April 17, 1985, the date Bill C-31 came into effect, and whom would normally have been members of the Band, with the exception of persons in category (1), whom the Bill sought to protect. [3] The thrust of the legislation was clear:  Bands, if they so choose, could exclude C-31 Indians - and above all the children of formerly "enfranchised" Indians - from membership in their Band.    

This is the third major failing of Bill C-3 1. For it is all well and fine to talk of the control over membership as being a fundamental right of nations and of self- government, but when the Aboriginal right to self-government is used in such a way as to deny Aboriginal and Treaty rights to large numbers of Aboriginal people, there is something wrong. Bill C-31 threatens to do just that to C-31 Indians on a massive scale. Aboriginal and Treaty rights are not individual rights, but rights that an individual exercises only by belonging to a distinct Aboriginal people or nation. In allowing Bands to exclude Status Indians from membership in an Indian nation to which they would normally belong, the Bill places the Aboriginal and Treaty rights of persons thereby excluded into jeopardy. It is imperative to find a solution to this problem that is at once fair to reserve communities and to C-31 Indians and their descendants off-reserve.    

Equality versus Continuity  

Ever since its inception in 1876, the central premise of the Indian Act has been that Indian people - and Aboriginal peoples generally - should and would eventually be integrated/assimilated into mainstream society. [4] It should be remembered that it was for this purpose that the concept of "enfranchisement" was introduced in the first place. Technically, "enfranchisement" involved the revocation of Indian Status for any Indian who fell under one or other of the many enfranchisement provisions of the Old Act. Bill C- 31, as we know, rescinded all these enfranchisement provisions, including the infamous 12(1)(b). But why did the Old Act consider it so important to revoke Indian Status? What was the point? What purpose did this serve?     

Revocation of Indian Status was only a means to an end. And that end was to remove Indians off reserves so as to progressively integrate them into the dominant culture. By denying them Status, the federal government was withdrawing from them the right to live on a reserve and membership in an Aboriginal community. In the process, "enfranchisement' also effectively denied Aboriginal and Treaty rights to   
numbers of Indian people, placing them in the same position as the Metis in this regard, and made them ineligible to receive benefits from the federal government under the Indian Act.     

But an Indian did not become less of an Indian just because he or she no longer resides on a reserve. The proof of that is the significant number of Status Indians who left reserves voluntarily, either on a temporary or permanent basis, without ever having their "Indian-ness" put into question. The effect of federal Indian policy was simply to treat Indian people differently depending essentially on whether they lived on reserve or off-reserve. [5] So it was that the Old Indian Act gave rise, after over a hundred years of operation, to two classes of Indian: Status Indians, most of whom lived on reserves or in Indian settlements of Northern Canada; and Non-Status Indians, virtually all of whom lived off-reserve, mainly in the urban centres of the Southern Canada. Status Indians had rights and access to benefits; Non-Status Indians and Metis did not.     

This essentially legal and legalistic distinction between Status and Non-Status Indians came, in the minds of many, to represent all at was wrong with the Indian Act. Merely eliminate this distinction, it was said, and all would be made right again: all Indians would be recognized as Indians under the law, and all would have access to the rights and benefits that is their due and their heritage.     

The experience of the past ten years has made it abundantly clear that the hope that equality of off-reserve and on reserve Indians could be achieved simply by eliminating the Status/Non-Status distinction was an illusion. If the Status/Non-Status distinction has ever close to being erased, it is certainly during the period when the "reinstatement" process under Bill C-31 was at its height in the late 1980's and early l990's. Some l00,000 formerly Non-Status Indians acquired Status during this period; and in some regions, particularly in Western Canada, so many were reinstated that Non-Status Indian and even Metis populations were dramatically reduced. [6] For all practical purposes, formal legal distinctions between Indians had reputedly ceased to exist.     

But has this done anything to eliminate disparities in legal status and official treatment of off-reserve Indians relative to Indians on reserve? Have C-31 Indians any more of an opportunity to live on a reserve than they did before? Have they had their Band membership restored? Are they any more able to receive treaty entitlements than before? Do they have the same access to federal benefits as reserve Indians? Have their Aboriginal and Treaty rights been affirmed and recognized in any meaningful way? In short, how has  their status really changed now that they are Status Indians?     
 

 
TABLE 1     
NUMBER OF BANDS THAT HAVE ASSUMED  CONTROL OF MEMBERSHIP. 
BY REGION, October, 1997  
Total #  
of Bands 
# with own Membership  
Codes
% with  
own Codes
Atlantic 31 11 35.5
Quebec 39 3 7.7
Ontario 126 53 42.1
Manitoba 61 20 32.8
Saskatchewan 70 30 42.9
Alberta 43 30 69.8
B.C. 197 82 41.6
Yukon 16 9 56.3
N.W.T. 26 1 3.8
Canada Total 609 239 39.2
Source: INAC Industry Branch
   
 
The vast majority of C-31 Indians continue to live off-reserve; only 15% report having a reserve address.[7] Certainly, many do not wish to return to reserves, but those who do must confront the realities of housing shortages and, often too, community resistance to the acceptance of new members. Moreover, Bill C-3 1 has given Bands the authority to revoke the right of many C-31 Indians to reside on reserve. About 40% of Indian Bands have opted to control their own membership lists, including many of the largest Bands in the country, and presumably most new Band membership codes exclude C-31 Indians, as Bill C-3 1 enables them to do.. The proportion of Bands that have done this varies tremendously by region with a low of 7.7% in Quebec and a high of close to 70% in Alberta. [8]     

C-31 Indians have difficulty as well having their treaty rights and entitlements respected. Treaty payments are administered through Bands, and many Bands do not included C-31 Indians on their treaty rolls, nor, for that matter, on the distribution lists of Band trust funds. The Twin Case is an example of the extent to which some Bands will go to deny C-31 Indians - who would otherwise be entitled to Band membership - access to Band revenues.     

In like manner, most C-31 Indians have seen little of the benefits reputably available to Status Indians under the Indian Act and certain federal programs. The most important practical benefit that they have obtained is the Status Indian card can exempt them from having to pay sales tax on retail purchases. However, the fact of the matter is that most Indian Act benefits are available only to persons living on reserve. Since the vast majority live off-reserve, C-31 Indians do not, for the most part, enjoy the income tax exemptions that the Act recognizes to Status Indians on reserve; nor do they qualify for INAC-funded programs and services, most of which are directed exclusively at reserves. And though they qualify for assistance under the federal government's Non-Insured Benefits program and Post-Secondary Education Grants - the two major programs available to Status Indians as of right - take-up off reserve has been slight, in part because few C-31 Indians are aware of these programs. [9] The federal government has moreover been threatening to limit eligibility for Non-Insured Health Benefits to Indians on reserve, and has recently cut-back post-secondary education grants so dramatically that we fear that this program too will eventually be restricted to reserve Indians. [10]     

Bill C-31 has not only failed to eliminated inequalities in the treatment of Indians, depending on whether they live on or off reserve, but it actually serves to make this demarcation more evident and more important than ever before. The old legal distinction between Status and Non-Status Indians has essentially been perpetuated under the guise of protecting reserve communities from the influx of off-reserve Indians. Whereas in the past, it was Status Indians who had rights and access to benefits, and Non-Status Indians who did not, today, it is Status Indians on reserve who have rights and access to benefits, while Status Indians off-reserve for the most part do not. It is not surprising therefore that a growing number of Aboriginal people are becoming disenchanted with Bill C-3 1. The Bill is viewed with suspicion on reserve, while, off-reserve, it is considered feeble and ineffective. Rather than eliminating legalistic distinctions between Aboriginal peoples, it divides the Indian peoples of Canada in new ways. The integrationist policy of the Indian Act regime has not been changed in any fundamental way as a result of Bill C-3 1, it has merely taken a new garb.     

A New Non-Status Indian Population: The Culmination of Extermination Policy  

Contrary to popular belief, Bill C-3 1 has not relegated the concept of Non-Status Indian to the dust bin of history. It is true that that the Bill has induced a great number of former Non-Status Indians to apply for Indian Status, and, as previously noted, over 100,000 did obtain their Status cards. Since most of these C-31 Indians live off-reserve, the Status Indian population off-reserve has ballooned as a result of reinstatement. On a Canada-wide basis, the number of Status Indians off-reserve grew by 156% between 1984 and 1996, compared to a growth rate of only 42% for the on reserve population over the same period. [11] There are now some 256, 000 Status Indians living off-reserve in Canada; and a least half are C-31 Indians or children of C-31 Indians born since April 17, 1985. At the same time there was a noticeable reduction in the Non-Status Indian population of provinces, and particularly on the Prairie provinces where the incidence of intermarriage with Non-Aboriginals is relatively recent and comparatively low.     
 

CHART 1    
  
Annual C-31 Additions to Indian Register. 19851995    
C-31 Chart
  
 
 
However, it is important to appreciate that this ballooning of the Status Indian population and the corresponding decline of the Non-Status population is not a permanent condition but a passing event. Most persons who are eligible for reinstatement under Bill C-3 1 have by now acquired Indian Status. As Chart 1 demonstrates, the majority of C-31 Indians were reinstated in the period immediately following the introduction of Bill C-3 1, and the number of reinstatements has decreased significantly in the last five years. [l2] As a result, growth rates of the off-reserve Status Indian population is once again beginning to approach those of the on reserve population. [l3]     

By 1991, the reinstatement process had by and large done its best in terms of reducing Non-Status Indian populations. It is at that point that we should expect the Non-Status populations to have been diminished the most significantly by the rapid exodus of members that could not be made up through natural increase. However, if we examine the Census for that year, we find that the Bill C-31 reinstatement process, even at its height, had not managed to extinguish the Non-Status Indian population. Some 60% of OntarioÌs Aboriginal population, for instance, continued to be made up of persons of Indian ancestry off-reserve who did not have Status. A similar situation prevailed throughout Eastern Canada and in British Columbia, where over 40% of the Aboriginal population continued to be made up of Non-Status Indians. Only in the Prairie provinces, did the proportion of Indian people without Status fall below 25%.     

The principal reason a Non-Status Indian population continues to exist is that the new eligibility rules operate, as did the old ones, in such a way as to exclude persons of Indian descent from being recognized as Indians for purposes of the Indian Act. This Non-Status Indian population, though of Aboriginal ancestry, is in danger of falling through the cracks, and as belonging to no Aboriginal people or nation. There is no question that these persons are for the most part of mixed Indian/European descent, and, for constitutional purposes, the possibility always exists that they could be considered Metis. However, in the event that they are not, they will have even more of a problem being recognized as belonging to an Indian people, since, by definition, they are not affiliated with any particular Indian Nation or Band. This Non-Status population is in real danger of being denied its "aboriginality" and being merely subsumed into mainstream society. Is this not precisely the goal of the Indian Act regime and integrationist policy?     

If it is, then Aboriginal people are in for a rude awakening in the not too distant future, for the Non-Status Indian population disclosed by the 1991 Census will do nothing but grow once the reinstatement process has run its course and the full impact of the new Status rules make themselves felt. It does not take a genius to figure this out. We merely have to ask what would happen if all Status Indians alive today married a Non-Indian or someone without Status, and their children did the same: within two generations, there would be no Status Indians left in Canada. All persons of Indian descent would by then have fallen through the cracks and none would any longer belong to any Aboriginal group or First Nation. While this is unlikely to occur as quickly as in our hypothetical example, there is no question that, as more and more Status Indians form unions with persons other than Status Indians, the fewer Status Indians there will be in the succeeding generation, and the larger the Non-Status Indian population will become. The rate at which this will occur depends on the incidence of inter-marriage with Non-Indians of each successive generation, a calculation which I leave to demographic experts. The fact that the new rules now apply to descendants of males as well as females only serves to accelerate the process.     

TABLE 2     
  
Distribution of Aboriginal Population by Group and Class
Canada, l991 Census
Total Abo. 
Pop.
Inuit 
Pop not Multiple Abo.
Abo. on Reserve Off- 
Reserve Status Indians
Metis without Indian Status Approx. 
Non-Status Indian Pop. Off-Reserve
Non-Stat us as % 
of Total 
Abo.
Canada 1,016,335 43,000 189,365 200,450 188,970 394,550 38.8
Nfld. 13,260 5,830 480 560 1,565 4,825 36.4
P.E.I. 1,910 75 345 170 175 1,145 59.9
N.S. 22,160 640 5,710 2,040 1,470 12,300 55.5
N.B. 13,210 320 2,845 1,855 860 7,330 55.5
Que. 139,510 8,065 21,455 14,845 17,110 78,035 55.9
Ont. 246,895 2,975 29,240 41,550 24,670 148,460 60.1
Man. 117,455 670 36,430 26,925 39,630 13,800 11.7
Sask. 97,675 330 30,300 27,035 28,570 11,440 11.7
Alta. 149,855 1,815 23,785 31,150 50,650 42,455 28.3
B.C. 172,470 1,325 38,220 40,930 20,455 71,540 41.5
Yukon 6,480 135 340 3,800 435 1,770 27.3
N.W.T. 35,465 20,825 215 9,590 3,390 1,445 4.1
Source: Statistics Canada catalogues 94-327and 94-325
    
 
The point is that the new Status rules that Bill C-31 imposes actually encourage the formation of a new Non-Status Indian population and, to this extent, they fit squarely within the continuum of the integrationist policies of the Indian Act regime. We must not let ourselves be distracted by the huge and rapid increase in the Status Indian population of  the last few years, particularly off-reserve. This phenomenon will pass and grow rates will decline to more normal levels once reinstatement has run its course. Nor should we take too much comfort in the fact that what is left of the Non-Status Indian population today and the Non-Status Indian population of tomorrow will at least not be composed of persons who had lost their Status. The new Non-Status Indian population will be made up exclusively of persons of Indian descent who cannot qualify for Status under the Indian Act. This is no reason to rejoice. The new eligibility rules for Indian Status will deny off-springs of Status Indians the opportunity to obtain Status for themselves, and many parents the right to pass on their heritage to their children. This is in many ways as pernicious as the old rules ever were.     

The time has come to consider alternative ways of dealing with the issue of Status, what it means and who should obtain it. While this is not the place to devise alternative solutions to Bill C-31 rules, there are few principles that any new solution should, in our opinion, respect: These are:     

 1. The federal government has no business telling Indian people  who is and who is not an Indian.     

 2. Status Indian communities should not fall into the trap of  trying to ensure the purity of their race: this is not only  morally reprehensible, it would ensure the extinction of their  community in the long run.     

 3. Eligibility for Indian Status should be based primarily on  having Aboriginal ancestry and self-identification with an  Aboriginal people.     

 4. Persons who meet these requirements should be entitled to  apply for membership in the Band of their ancestors, and  membership should be granted automatically by the Band upon  verification of ancestry.     

 5. All persons who are accepted as members of the Indian  Nation/Band should be accepted as Indians by the federal  government and recognized as Indians with legal rights  regardless of place of residence.     

Band Membership and Aboriginal and Treaty Rights     

Bill C-3 1 has served not to clarify but to confuse and obfuscate the issue of which Indians have rights and which do not. Under the Old Act, the rule of thumb was that Metis and Non-Status Indians had no rights and were not entitled to benefits under the Indian Act, while Status Indians had rights and could receive benefits. Under Bill C-31, we still have Metis and Non-Status Indians, and it is still the case that they are not recognized as having any Aboriginal and Treaty rights, nor can they access benefits under the Indian Act..   

However, the divorce of Status from membership in an Indian Band brought about by Bill C-31 means that we can no longer assume that even all Status Indians have rights and access to Indian Act benefits. In effect, the Bill establishes a new category of Indian - C-31 Indians - in respect to whom rights and benefits are left in limbo, if not outrightly denied.     

As previously noted, Aboriginal and Treaty rights are in the nature of collective rights, such as the right to self-government, or rights that a person can exercise or benefit from only by belonging to a specific collectivity or Indian Nation (e.g. hunting and fishing rights, treaty rights etc. . .). Bill C-3 1 allows these collectivities - Bands or First Nations - to exclude C-31 Indians, who, in the very act of obtaining Status, would normally be entitled to Band membership. What does this imply in terms of the recognition and affirmation of Aboriginal and Treaty rights of C-31 Indians? This is a question that is not easy to answer, and around which there is currently considerable debate and contention. Is Indian Status sufficient to establish that one belongs to an Aboriginal people? How can one claim to belong to an Indian Nation that officially denies you membership? How is it even possible to access Aboriginal and Treaty rights without being a member of an Aboriginal people, in this case, Indian Nation or Indian Band? The courts may ultimately find innovative ways to cut this Gordian knot, but in the meantime, C-31 Indians are left in limbo as far as the definition of their rights and benefits are concerned.     

It is imperative in our view to resolve this issue. This is true despite the fact that the category "C-31 Indians" is, by the very definition that the federal government has given it, bound to disappear. It will be recalled in this regard that the term "C-31 Indian" applies only to persons born before April 17, 1985 who would not have been eligible for Indian Status had it not been or Bill C-31. Eventually all persons born before April 17, 1985 will pass away, and so too will the "C-31 Indian" category as presently defined. Though not included in statistics on C-31 Indians at the present time, there will however be children born to C-31 Indians post 1985 and these descendants of C-31 Indians are no more likely to be accepted in Indian Bands than were their parents. Many may not even qualify for Indian Status under current rules. Assuming however that a significant portion do obtain Status,  the difficulty of defining the rights of Status Indians who are not members of Indian Bands will remain even after C-31 Indians as a category are long gone.     

It must be made clear that the issue is not whether Band's should or should not have the right to control their own membership. The issue is over the nature of membership.  Is membership an inherent right that should only be suspended under extraordinary circumstances and through due process; or is membership in an Aboriginal people, community or nation a prerogative right that only sovereign authority can confer on an individual? The Old Indian Act assume the former, while Bill C-31 is premised on the latter proposition. Hopefully, a way will be found that will permit reserve communities to control their own affairs without jeopardizing the Aboriginal and Treaty rights of Indians who trace their ancestry to that particular community or reserve but who no longer live there.     

Conclusions  

Bill C-31 was born of the necessity to amend those provisions of the Indian Act that offended the equality rights clause of the Canadian Charter of Rights and Freedoms. This it did, but in a manner that preserves the insidious integrationist bias of the Indian Act, so that, despite all the changes that it introduced, the fundamental goal of assimilating Indian peoples as indistinguishable members of the Canadian body politic remains intact. The Bill has three major failings:     

 Ô it raised expectations that all Indians would be recognized as Indians and treated equally before the law and by the federal government, yet it merely reproduced in a new form the old disparities in the treatment accorded off-reserve Indians relative to Indians on reserve; 
 Ô it eliminated the sexual discrimination inherent in the old        patrilineal eligibility rules for Indian Status, only to impose new gender-neutral rules that are as detrimental in their own way to the Indian people of Canada as were the old rules that they replace; and 
 Ô it allows for the reinstatement of C-31 Indians, but then laces their rights in jeopardy by enabling Bands to deny them membership. 
The regime that Bill C-3 1 imposes must be changed. The Congress is prepared to discuss this matter with other Aboriginal groups and the federal government. But Indian people off-reserve will not long support a regime that raised so much hope yet has proved so ineffective in terms of promoting equality and that imposes new Status rules that they will soon come to despise. Though in the short run, Bill C-3 1 has led to a dramatic increase in the number of Status Indians there are in Canada, in the long run, it will actually act to disqualify the descendants of today's Status Indians from obtaining Status in their turn. This is equivalent to "abocide": the elimination of the Status Indian population.     
     
Footnotes:     

[1] INAC, Indian Registration Branch, S-3 Report, November, 1997.     

[2] In the Twinn case three of the wealthiest Alberta Bands (Sawridge, Erminskin and Sarcee) are even challenging the constitutional authority of the federal government to impose new members on Bands that chose to limit membership essentially only current residents of the reserve. Though the case was initially dismissed by the Federal Court  Canada (Trial Division) in 1995, this decision was set aside on appeal and a new trial ordered by the Appellate Division Federal Court of Canada in June, 1997, a ruling which has since been upheld by the Supreme Court of Canada when it refused leave to appeal the Appeal Court's decision.     

[3]  The protection given current Status Indians and Indians whom have had their Status restored to them is not as strong as Bill C-31 makes it appear. The Bill enables Bands to assume control of their Band List, and "control" is the operative word. In order to assume control in the first place, a Band must adopt a Membership Code that conforms to the Indian Act, as amended by Bill C-31. However, once control is transferred to the Band, neither the federal government nor the Department of Indian Affairs any longer has any say in how the Code is amended or administered. Thus the protections and guarantees of membership set out in the Bill are relatively weak and may not be enforceable against Bands who have already taken control of their Band List.     

[4]  This point has been made in a multitude of studies. See for instance: Sally M. Weaver, Making Canadian Indian Policy: The Hidden Agenda 1968-1970, University of Toronto Press, 1981; and Report of the Royal Commission on Aboriginal PeopIes. Volume 1, Canada Communications Group Publishing, 1996.     

[5]  The official policy of the Department of Indian Affairs is that federal responsibilities extend to Indians on reserve and Aboriginal people North of 60. Though there are very few reserves North of 60 - three only in the Northwest Territories for instance - the Department has traditionally distinguished between Indians who reside outside reserves but on Crown Land and off-reserve Indians proper. The bulk of Indians north of 60 live on Crown Land. The Department usually includes Status Indians on Crown Land within the on reserve population for policy purposes and in departmental statistics.     

[6] This occurred primarily in Manitoba and Saskatchewan, both provinces with relatively large Aboriginal populations (in both provinces, almost 10% of all residents are Aboriginal) which have among the lowest rate of out-marriage of Aboriginal people anywhere in Canada (close to 60% of the Aboriginal population is of     
single Aboriginal ancestry, as opposed to multiple Aboriginal/Non-Aboriginal ancestry).     

[7]  Figures calculated from INAC, Indian Registration Branch, data for August, 1997.     

[8] Calculated from membership code data supplied by lNAC, Indian Registration Branch, for October, 1997. Note that Table I only lists Bands that have adopted their own Membership codes through Bill C-31 and excludes Bands that have done so through legislation other than the Indian Act (e.g. self-government agreements, such as Sechelt, or comprehensive land claims agreements, such as the Cree and Naskapi in Northern Quebec).     

[9] Though official statistics on the take-up of these programs by C-31 Indians have never been compiled, the consensus among officials who operate these programs is that benefits continue to be directed predominantly at the on reserve population, the traditional clientele for these programs before the advent of Bill C-3 1.     

[10] Funding for Post-Secondary Education Grants to Status Indians was reduced by 50% in 1998-99.     

[1l]  Calculated from Basic Departmental Data INAC), 1996, Tables 4 and 5, and Indian Register Population by Age and Sex (INAC), 1984 and 1996.     
     

     
     



Contact InformationBack To TopHome

Copyright InformationCongress of Aboriginal Peoples