September 1995

INTRODUCTION

Important changes were made to Canada's Indian Act on June 28, 1985, when Parliament passed Bill C-31, an Act to Amend the Indian Act. Bill C-31 brought the Act into line with the provisions of the Canadian Charter of Rights and Freedoms.

The three principles that guided the amendments to the Indian Act were:

• removal of discrimination;

• restoring status and membership rights; and

• increasing control of Indian bands over their own affairs.

In addition to bringing the Indian Act into accord with the equality provisions of the Canadian Charter of Rights and Freedoms, Bill C-31 expanded band control over membership and community life, enabling Indian people to take an important step toward self-government.

The Indian Act, passed in 1876, combined all existing policies affecting Indians and outlined the responsibilities of the federal government, established by the British North America Act of 1867.

The Indian Act was subject to frequent legislative fine-tuning and amendments. However, until the 1985 amendments, its basic features remained the same from 1867 to 1985.

KEY AMENDMENTS BROUGHT BY BILL C-31

Registration (Status)

• C-31 changed the registration system so that entitlement was no longer based on sexually discriminatory rules.

• The amendments, effective April 17, 1985:
  • treat men and women equally;

  • treat children equally whether they are born in or out of wedlock and whether they are natural or adopted;

  • prevent anyone from gaining or losing status through marriage;

  • restore Indian status for those who lost it through discrimination or enfranchisement;

  • allow first-time registration of children (and in some cases descendants of subsequent generations) of those whose status is restored; and

  • allow for the registration of children born out of wedlock if either parent was a registered Indian, regardless of their date of birth.

• The federal government continues to maintain the Indian Register. Those who were recorded in the Indian Register when the amendments came into force continue to be recorded there. Those whose status was to be restored or who are eligible to be regist ered for the first time must apply to the Registrar to be recorded.

• Two categories of persons were excluded from registration under the C-31 provisions:

  • women who gained status only through marriage to a status Indian, and later lost it (e.g. through re-marriage to a non-Indian); and

  • children whose mother gained Indian status through marriage and whose father is non-Indian.

Band Membership

• Those who lost their membership in a band through sexual discrimination in the past, can apply to regain membership.

• Bands can control their own membership based on their own membership rules.

• Bill C-31 provides that, under the Indian Act, band membership rules respect two principles:

  • a majority of band electors consent to the band's taking control of membership, as well as to a set of membership rules; and

  • existing band members and those who are eligible to have band membership restored do not lose their entitlement to band membership because of something that occurred before membership rules were adopted.

• Two years after Bill C-31 was passed into law on June 28, 1987, bands who chose to leave control of their membership with the Department of Indian Affairs and Northern Development (DIAND) were subject to the Indian Act provisions that a person who has Indian status also has a right to band membership at the same time.

• Bands may still take control of their own membership registration, but the rights of those individuals already registered and added to the band list are protected.

• A woman who marries a member of another band no longer automatically becomes a member of her husband's band. Transfers between bands are still possible if the receiving band agrees.

New By-law Powers

• Bands gained new by-law powers to regulate:
  • which band members and other individuals reside on reserve;

  • the provision of benefits to non-member spouses and children of band members living on reserve; and

  • the protection of dependent children's right to reside with their parents or guardians on reserve.

• Bands can better control development on reserve lands.

• The maximum fine for all by-law violations under section 81 of the Indian Act increased to $1,000 from $100.

• Bands can seek court orders to enforce all by-laws made under section 81.

• A provision empowers courts to make orders prohibiting the continuation or repetition of the offence by the person convicted.

• Since some people accepted into band membership under band rules may not be status Indians, C-31 clarified that various sections of the Indian Act would apply to such members. The sections in question are those relating to community life (e.g., land holdings). Sections relating to Indians as individuals (e.g., wills and taxation of personal property) were not included.

Enfranchisement

• C-31 abolished the concept of enfranchisement. Band membership is subject to band rules (for bands that had assumed membership control) or subject to the membership provisions of the Indian Act.

Intoxicants

• Band by-laws cover:
  • prohibition of sale, barter, supply or manufacture;

  • prohibition of intoxication;

  • prohibition of possession;

  • exceptions re: intoxication or possession.

• By-laws apply on reserve if agreed to by a majority of electors at a special meeting called by a band council to review the proposed by-law.

• The Minister of Indian Affairs and Northern Development cannot disallow intoxicant by-laws.

• Maximum penalties:

  • $1,000 or six months or both, for provision of intoxicants;

  • $100 or three months or both, for possession and intoxication.

• Sections 94 to 100 of the Indian Act regarding control of intoxicants were repealed to permit bands to make the transition to band by-laws or to provincial laws if they desired.

Funding

All status Indians including those newly registered as a result of Bill C-31 are eligible to apply for post secondary education assistance through DIAND and are eligible for non-insured health services through Health and Welfare Canada. This applies to b oth on-reserve and off-reserve Indians.

The federal government provides programs and services to Indians living on reserve much as provincial and municipal governments provide programs and services for other residents. For people living on reserve, the federal government provides funds for hou sing, elementary and secondary education, health services and social assistance, most of which are delivered by bands or tribal councils.

DIAND has undertaken to meet the additional cost of providing these programs and services to people who gained status as a result of the 1985 amendments.

TWO-YEAR REVIEW

A review of the impacts of Bill C-31 was submitted to a Parliamentary Committee in June 1987. A study, Impacts of the 1985 amendments to the Indian Act (Bill C-31), was tabled in the House of Commons on December 19, 1990.

This is one of a series of information sheets produced by the Communications Branch, Department of Indian Affairs and Northern Development. For information sheets on other topics, or for copies of the Report to Parliament on the Implementation of the 1985 Changes to the Indian Act, or copies of the study, The Impacts of the 1985 Amendments to the Indian Act (Bill C-31), contact:

The Department of Indian Affairs
and Northern Development
Public Enquiries Kiosk
Ottawa, Ontario
K1A OH4

Telephone: (819) 997-0380

QS-6047-002-EE-A5

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