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

In addition, because the number of people applying for restoration of Indian status was
much higher than had been predicted by the department, and because restoration is a
complicated and time-consuming process involving proof of descent, status decisions
were sometimes delayed. In fact, in many cases it took years to get a decision. Given that
most band membership codes were adopted in the first two years after passage of Bill C-
31, and given that it took five years to clear up the backlog of Bill C-31 status
applications, it is clear that in the interval between individuals applying for and being
granted Indian status, many bands went ahead and adopted membership codes without
the participation of the very people whose interests were most likely to be affected by the
provisions of membership codes.
Because of delays in processing applications, it seems apparent in retrospect that bands
that wished to adopt membership codes were not always aware of who their potential new
members might be. By the same token, since there was no requirement that the band
membership codes be published, it seems equally clear that many Bill C-31 applicants
were unaware that the bands with which they were affiliated and that they might have rejoined
were going ahead with codes that could exclude them. As a result, Bill C-31
registrants with an acquired right to have their names placed on band lists maintained by
the department have been restored to Indian status but have found that the department no
longer maintains their band's list and that they have been excluded from membership
under a membership code adopted without their participation or knowledge.
Thus, in the survey of Bill C-31 registrants, the department found that only 15 per cent of
registrants had been able to participate in the process by which a band membership code
was adopted. These problems, coupled with the impact of the Indian Act rules requiring
reserve residency as a precondition for voting, compelled the department of Indian affairs
to conclude that "[g]enerally, only regular band members were involved in developing
and voting on these rules". 70
Membership codes still do not have to be published, so even today Bill C-31 registrants
are often unaware of decisions being taken by the bands with which they are associated. 71
The department of Indian affairs has refused to intervene, on the grounds that these are
issues between the individuals and bands concerned. Many Bill C-31 cases are now
before the courts, involving First Nations women and their descendants who are often no
further ahead than when they first applied for reinstatement, having to rely on costly
litigation to obtain the band membership that they believed these amendments had given
them. 72
In the same way, a number of bands have gone to court to prevent people who acquired
or regained status under Bill C-31 from acquiring band membership. The bands have
argued that their right to control their own membership is an Aboriginal or treaty right
protected under the Constitution Act, 1982 that enables them to ignore the requirement in
Bill C-31 to reinstate the persons who acquired rights to band membership during the first
phase. In the Sawridge Band case, however, the trial judge found this argument to be
without foundation, ruling that subsection 35(4) operates in the section 35 context to
prevent bands from discriminating against Indian women in their membership decisions.
43