2. Women's Perspectives - Christian Aboriginal Infrastructure ...

ands (those that were not were on a 'general list' of Indians). The department of Indian
affairs maintained both the general list and the band lists. The 1985 amendments gave
bands the authority to take control of their membership lists and determine who was and
was not a band member. For the first time, Indian status and band membership were
separated.
Strict rules were put in place to protect existing band members and those who acquired
the right to band membership through section 6. A woman's ability to be recognized as a
band member and to be treated in the same manner as other First Nations people is a
significant issue. This is particularly true for women with Indian status gained under Bill
C-31.
Under the 1985 amendments, bands can adopt a membership code if a simple majority of
"electors of the band" agree to it in a vote called for that purpose. 64 Adoption of a
membership code means that the band, not the department of Indian affairs, will maintain
the membership list according to its own rules as set out in the membership code. Under
the Indian Act, electors of the band are all band members over the age of 18, 65 whether
they live on- or off-reserve. By December 1995, about 240 bands had adopted
membership codes and 370 had not.
The 1985 amendments to the Indian Act contain apparently conflicting provisions. On
one hand, First Nations can assume control of membership. This implies a form of selfgovernment
in which it is bands alone that decide their membership. On the other hand,
under section 10, certain categories of persons acquired the right to have their names
placed on band lists maintained by the department of Indian affairs before these lists were
transferred to the bands and as soon as the amendments were passed into law. Under
normal circumstances, persons whose names were placed on departmentally maintained
band lists would automatically become band members, irrespective of the wishes of the
bands concerned. This flies in the face of band control of membership, since the
department of Indian affairs would still be making decisions about band membership, this
time by restoring Indian status and band membership to those eligible under Bill C-31.
The primary intent of section 10 is to give bands control of their membership, with a
secondary goal being to protect the acquired rights to membership of Bill C-31
registrants. In other words, the theory seemed to be that these persons ought not to be
deprived of band membership arbitrarily by bands that may not have wished to include
them as band members. Acquired rights did prevent bands from subsequently adopting
band membership codes that excluded persons with these rights. Persons with these
acquired rights of band membership would, in principle, have the right to vote on all band
matters on which the general membership can vote. 66 This would include band
membership codes. However, for reasons discussed below, this did not always happen,
and band membership decisions were sometimes taken without the participation of those
with acquired rights of membership.
The protection of acquired rights to band membership was established in two phases. In
the first phase, which lasted roughly two years from the adoption of Bill C-31, until 28
41