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

husbands. In this regard, Indian affairs acknowledges that "[r]egistrants would much
prefer to be affiliated with a band closer to their domicile or to a band with which the
mother or wife in a marriage is affiliated". 79
Indian women have concerns about the right of their children to live on reserves.
Children have special rights with regard to residence. The Indian Act provides in section
18.1 that children may reside on reserve lands if they are dependants of, or in the custody
of, a band member who is himself or herself resident on-reserve. This provision was part
of the Bill C-31 amendments. The most common situations would be cases of adoption,
court-ordered custody and foster children. Because the conditional acquired rights
described earlier and referred to in subsection 11(2) have been avoided by the many
bands that passed membership codes before 29 June 1987, and because band membership
codes may exclude children who might otherwise have been included on band
membership lists under the new membership codes, situations can arise where the natural
children of band members may not themselves be band members. For example, under a
blood quantum test, an Indian man and his non-Indian wife would both be band members,
but their child (being only 50 per cent 'Indian') might not be. However, the children will
be allowed to live on-reserve because of section 18.1 as long as they are dependants. This
provision would seem to constrain the authority of bands to exclude from reserve
residency minor children who are not band members.
Many Indian women believe that further analysis is called for. They would like to see a
review of residency by-laws to ensure that they do not unfairly affect a particular group,
especially as relating to Bill C-31 people. Women would also like the relationship
between residency by-laws and band membership codes examined to ensure that the two
do not operate jointly to exclude people in ways they would not do individually.
Land-holding system on reserves
Many, though not all, Indian bands operate under a 'certificate of possession' system.
Aboriginal women told the Commission that the regulations for issuing certificates of
possession are a limiting feature of the Indian Act because of sexual discrimination.
The certificate of possession (CP) system is set out in section 20 of the Indian Act. Under
it, an Indian is not 'lawfully' in possession of reserve land without an allotment by the
band council as approved by the minister. A CP is therefore evidence of the right to
possess reserve land and to occupy that land. But this right can be terminated if an
individual ceases to be a band member. Section 25 provides that when an Indian ceases to
be entitled to reside on a reserve, he or she has six months to give the right of possession
to another band member (or the band). After that, the land automatically reverts to the
band. Extensions can be granted, and the act allows for compensation for improvements.
This system can create a curious situation in which a band member without a CP can be
expelled from the reserve by the band, but one with a CP cannot be expelled because the
certificate carries with it the right to occupy the land. However, under section 25, any
individual can lose the right to reside on a reserve upon loss of Indian status or band
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