Indian status versus Band membership: What is the difference?

For more than 150 years, Canada has maintained a legislated registration system which attempted to define who was and was not considered an “Indian” in the federal government’s eyes.

Beginning in the 1850s, the colonial administration defined “Indians” based on their family, social and Tribal/Nation ties. Such definitions were further narrowed and defined with the passing of the Gradual Enfranchisement Act in 1869 and the Indian Act in 1876.

Indian status

Indian status is the legal status of a person who is registered as an Indian under the Indian Act. If someone is registered as a status Indian under the Indian Act, their name will be added to the Indian Register (which is maintained by the federal government) and they will be issued a status card.

Registration is the process by which First Nations people gain Indian status under the Indian Act. Eligibility for Indian status under the Indian Act is based on the degree of descent from ancestors who were registered or entitled to be registered. Specifically, section 6 of the Indian Act defines how a person is entitled to be registered, with the Indian Registrar determining who is entitled to be registered.

Status Indians are categorized according to the section of the Indian Act under which they are registered. This classification dictates the nature and extent of their legal status and, by extension, influences legal entitlements and the nature of identity.

A “6(1)” can pass on status to their children no matter whom they marry, while a “6(2)” cannot. The “Indian Act math” demonstrates this point:

6(1) + 6(1) = 6(1)
6(1) + 6(2) = 6(1)
6(2) + 6(2) = 6(1)
6(1) + non-Indian = 6(2)
6(2) + non-Indian = non-Indian

Indian status versus Band membership

Although people often use the terms interchangeably, Indian status and band membership are not the same thing.

Indian status is the legal concept created by the federal government under the Indian Act. An individual who is registered as a status Indian is entitled to certain rights and benefits established under federal law, including certain tax exemptions, health benefits and other programs and services.

Band membership, on the other hand, determines whether an individual belongs to a particular First Nation. Membership may carry rights and benefits established by that Nation, including the right to vote in band elections or referendums, seek elected office, receive housing assistance, access education funding and share in per capita distributions made by the First Nation.

Before 1985, Indian status and band membership were generally linked. If an individual was registered as a status Indian under the Indian Act, they were typically also entitled to membership in their affiliated First Nation. This meant that the federal government largely controlled who was considered a member of a First Nation.

That changed with the enactment of Bill C-31 in 1985. Through amendments to the Indian Act, First Nations were given the opportunity to assume control of their own membership and create their own membership rules.

Bill C-31 created two systems for band membership under the Indian Act: Section 10 and Section 11.

These systems determine whether band membership is controlled by the First Nation or remains under federal jurisdiction.

Section 10 – Membership Code

Section 11 – Indian Registrar List

First Nation in control of membership list through a membership law (i.e. a membership code). Band membership is separate from being registered as a status Indian. Registering as a status Indian is a separate process from applying to be a band member. Individuals may be eligible for membership even if they do not qualify for Indian status. The federal government still maintains the list of registered Indians who are affiliated with a First Nation, separate from the membership list of band members maintained by the First Nation.

Indian Registrar in control of membership list. First Nation does not establish membership criteria. Membership directly tied to Indian status defined by the Indian Act.

As a result of Bill C-31, Indian status and band membership became separate concepts. Today, a person may be:

• registered as a status Indian and a member of a First Nation;
• registered as a status Indian but not be a member of a particular First Nation;
• a member of a First Nation under its membership code but not entitled to Indian status; or
• not entitled to register as a status Indian or as a member of a First Nation.

This distinction is important as it recognizes that First Nations and Canada may have different approaches to determining who belongs to a Nation.

While Canada continues to determine who is eligible for Indian status under the Indian Act, First Nations that control their own membership can establish membership criteria that reflect their own histories, traditions, customs, values and priorities.

However, while First Nations have significant authority to control their own membership, that authority is not unlimited. Membership codes must still comply with constitutional requirements, including the right to equality protected by the Canadian Charter of Rights and Freedoms. In our next article in this series, we discuss some of the constitutional issues that can arise when a First Nation develops or updates its membership code.

If your Nation has any questions about legal services or membership codes, a member of the MLT Aikins Indigenous practice area would be happy to assist.

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