Area of Law: Aboriginal Law
Answer # 0652
Nation and Band membershipRegion: Ontario Answer # 0652
The following information has been provided with the assistance of Lakehead University Faculty of Law, Aboriginal Law Studies.
Definitions under Canadian law
“Aboriginal” refers to the original peoples of North America and their descendants. Section 35 of the Canadian Charter recognizes three groups of Aboriginal people:
- Indians (today known as “First Nations”),
- Métis, and
“Bands” are communities that are governed under the Indian Act.
“First Nations” refers to the communities or nations of indigenous peoples in Canada who used to be called “Indians”. One nation can be made up of several bands. For example, the Tsilhqot’in Nation is made up of six bands.
“Inuit” refers to the Aboriginal people of Arctic Canada.
“Métis” are people descended from mixed ancestry of First Nations and European ancestry who formed distinct communities. In a recent 2016 Supreme Court of Canada case, Daniels v. Canada, the Court concluded that the definition of “Indians” under section 91(24) of the Constitution Act, 1867 includes the Métis and non-status Indians under federal jurisdiction. The Court noted that determining whether particular individuals or communities are Métis and non-status Indians—and therefore, “Indians” under s. 91(24)—is to be decided on a case-by-case basis.
“Registered or Status Indian”: an Aboriginal person may be a “registered” or “status” Indian if they meet the criteria provided in the Indian Act. Having status entitles the person to certain programs and services from the government.
Bands under the Indian Act
Some First Nation communities are governed under the Indian Act. These communities are referred to as “bands”. Each band has a Chief and a Council.
Under the Act, a nation is a “band” if it has a reserve, if it has a trust fund held by the government for its benefit, or if it has been declared as a band by the Governor General acting on the advice of the Cabinet.
Specifically, the Indian Act defines a “band” as follows:
“band” means a body of Indians
(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,
(b) for whose use and benefit in common, moneys are held by Her Majesty, or
(c) declared by the Governor in Council to be a band for the purposes of this Act.
Various types of government funding and land are provided for the benefit and use of the bands. However, the bands and their members cannot own the land.
There are many First Nation communities that are not governed under the Act. These nations are “self-governing”. For example, in the Yukon, only three of the eleven First Nations remain under the Indian Act. Where the nation is self-governing, the members are referred to as “citizens”. Each self-governing nation has its own constitution, owns, and manages its land.
Membership in a Band
To become a member of a band, a person must:
- be a registered or status Indian under the Indian Act, and
- be accepted as a member by the band.
Registered or Status Indian
Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) states that a person is entitled to be registered under the Indian Act, if they qualify under one of the following categories:
- Parents, and their children, who were omitted from inclusion, or removed from, the Indian Registrar before September 4, 1951 and are now entitled to be registered following the enactment of Bill S-3: An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général).
- People who were entitled to be registered prior to April 17, 1985,
- Women who lost their status as a result of marrying a man who was not a status Indian,
- Children of women who were entitled to be registered prior to April 17, 1985, who were enfranchised upon their mother’s marriage,
- Children whose mother and whose father’s mother did not have status under the Actbefore their marriage, and who lost their status at the age of 21 (s.12