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3.6 Citizenship


3.6.1. Background

As discussed in Section 2.2 – The Citizens, the institution of citizenship and determining who belongs to the group to which governance arrangements apply, is central to any discussion of Nation building. Today, there is a spectrum of options for exercising jurisdiction over determining who is a part of the Nation, depending on what type of governance arrangements your Nation is subject to. The options allow our Nations to work through the complex legal and political issues of determining citizenship as we move away from governance under the Indian Act. These options range from making a membership code under the Indian Act as to who should belong to the “band of Indians” through to powers for determining full citizenship in the Nation as part of comprehensive governance arrangements (both inside and outside modern treaty-making). Work is also continuing outside negotiations with the Crown for the purposes of preparing for rights and title court cases.

In moving along the continuum of governance options, it should be noted that in some cases an acceptable membership code for a “band” under the Indian Act may be problematic for a Nation or a group of “bands” moving to more comprehensive governance arrangements with the Crown or for representation by their Nation in court. This is particularly the case where the appropriate unit of government for new governance arrangements may not be based on the Indian Act “band”. In most instances, Nations moving beyond the Indian Act, have had to deconstruct their Indian Act reality and the rules for belonging to a ”band” and then reconstruct them as part of the separate and new legal entity recognized and established under new governance arrangements.

3.6.2. Indian Act Governance

Membership under the Indian Act is determined in accordance with sections 5 to 14, specifically sections 6, 7, 10, 11 and 12. On option for our Nations is to continue using these rules to determine our First Nation’s citizenship criteria. There is also a mechanism for a “band” to take over control of its membership pursuant to a procedure set out in the Indian Act itself (section 10).

To assist Nations and the Crown in questions of membership under the Indian Act, INAC has established a Membership program with the responsibility to:

  • enable First Nations to assume control of their membership.
  • ensure that the acquired rights of First Nations members are protected as required by the Indian Act.
  • advise the Claims and Indian Government sector of INAC on membership components of self-government proposals.

In this case, the First Nation assumes control by developing membership rules that protect all rights to membership that had been acquired while INAC was maintaining the “band” membership list. The rules must be approved by a majority of the electorate of the First Nation. Thereafter, all decisions on membership are made by the First Nation.

The following is a checklist of the steps a First Nation should take when assuming control of its membership under section 10 of the Indian Act:

  1. Conduct referendum of the members to begin process to control membership;
  2. Preparation of the Membership Code that meets the minimal legal requirements of the Indian Act. The Code must include an appeal procedure to review rejected applications;
  3. Membership Code approved by the members;
  4. Formal notice sent to the Minister, including a copy of the Membership Code and evidence of notice and consent that the community wants to control membership and has accepted the Membership Code;
  5. Obtain an official response from the Minister; and,
  6. Membership Code in force. Administration established to maintain an updated Membership list containing additions and deletions of the members. List filed in the administration offices of the First Nation and available to all members.

Today, 232 First Nations in Canada determine their own membership under section 10. In BC, 75 First Nations control their own membership under section 10 of the Indian Act and 12 First Nations have codes in accordance with their comprehensive governance arrangements.

3.6.3. Sectoral Governance Initiatives

There are currently no sectoral initiatives to deal with the determination of citizenship. Therefore, the options for First Nations are limited to processes under the Indian Act or as a subject matter for comprehensive governance negotiations or as may be directed by the courts.

3.6.4. Comprehensive Governance Arrangements

An alternative method by which our Nations can assume control for determining their citizenship criteria is through comprehensive governance negotiations. This can be done through a separate negotiation process or as part of treaty negotiations. All the existing self-government agreements recognize the Nation’s jurisdiction in determining their citizenship and all future self-government arrangements would presumably recognize this jurisdiction as well.

In some cases, First Nations desiring to come under comprehensive governance arrangements may have attempted in the past to make codes under the Indian Act, only to have them rejected by the Minister. Self-government negotiations may provide an opportunity to revisit these issues. Codes, in any case, should be fair and non-arbitrary.

Some Nations may include the detailed rules for who belongs to the Nation in their constitution as the core and fundamental law of the Nation, while others might prefer to make separate citizenship laws. Of note, however, is that in most cases where our Nations have developed rules concerning citizenship, significant work has taken place to deconstruct the Indian Act system of membership and replace it with new, more appropriate rules. This is particularly the case for the governance arrangements associated with modern treaty-making.

In the case of modern treaties, such as Tsawwassen’s, it is important to appreciate the different entitlements of “Members” (Citizens) and “Individuals” referred to in the Final Agreement. These entitlements reflect the change in the legal structure of the Nation between the last day it existed as an Indian Act “band” and the first day as a self-governing Nation, when the Indian Act “band” ceases to exist. For example, there is a provision in the Tsawwassen First Nation Final Agreement stating that if you were a Tsawwassen member under the Indian Act and chose not to enroll as a Member of the new entity, you become known as a Tsawwassen “Individual.” As such, you are not eligible for treaty benefits or to participate in the governance of the Nation, and while you have some vested rights you do not have many rights with respect to participation in the affairs of the Nation.

Looking at the Nisga’a arrangements, the starting point is that citizenship is actually defined as having no relationship to the Indian Act. In accordance with the treaty, the Nisga’a Constitution provides that persons choosing to enroll in the treaty are considered Citizens unless they renounce this citizenship at some point. The Nisga’a can expand the set of people who are considered Citizens under Nisga’a law but cannot contract the set. They also have the power to pass a Citizenship Act, under which any person can be a Nisga’a citizen. “Participants” in the treaty have no right other than the right to become a Citizen of the Nisga’a Nation. Citizenship is then the basis of any treaty rights.

When looking at comprehensive governance arrangements, it is important, therefore, to appreciate that after the initial set of persons enrolled or entitled to bring the governance arrangements into effect has been determined and the new arrangements are in place, the Nation can determine in accordance with its constitution the extent to which the group will adjust its own rules concerning citizenship as part of the exercise of its ongoing jurisdiction.

3.6.4.1. – Comprehensive Governance Arrangement - Comparative Charts

Entitlement and Enrolment:

Sechelt

Existing members of the Sechelt Indian Band.

Westbank

Existing members of the former Westbank Indian Band. Cannot be a member of another band or First Nation at the same time. (Part VII, ss. 72, 73 & 75)

Nisga’a

a) of Nisga’a ancestry;

b) a descendant of (a) or (c)

c) an adopted child of (a) or (b); or

d) an Aboriginal person married to (a), (b), or (c) and has been adopted by a Nisga’a tribe. (Ch. 20, s. 1)

Tsawwassen

a) was a member or entitled to be a member of Tsawwassen Indian Band prior to effective date

b) of Tsawwassen ancestry;

c) adopted by an individual eligible to be enrolled; or

d) descendant of above.

The child of a non-aboriginal Tsawwassen member (who gained membership through marriage prior to 1985) and a person who is not eligible to be enrolled, is not eligible for enrollment. (Ch. 21, s.2)

Maa-nulth

a) of that Maa-nulth First Nation ancestry;

b) adopted by an individual eligible to be enrolled;

c) a descendant of above; or

d) is accepted by that Maa-nulth First Nation as a member.

Cannot be a member of another band or First Nation at the same time. (ss. 26.1.1 & 26.1.2)

General Jurisdiction:

Sechelt

Federal legislation establishes need for a Sechelt membership code that must have Sechelt electors’ approval. The rules are set out in the Sechelt constitution. (s. 10(2))

Westbank

Westbank First Nation has jurisdiction in relation to membership of Westbank First Nation. (Part VII, s. 70)

Nisga’a

Nisga’a Lisims Government may make laws in respect of Nisga’a citizenship. (Ch. 11, s.39)

Tsawwassen

Tsawwassen Government will make laws regarding entitlement to membership. (Ch. 16, s. 48)

Maa-nulth

Power to make laws in respect of citizenship in the applicable Maa-nulth First Nation. (s. 13.13.1)

Conflict of Laws:

Sechelt

Westbank

Westbank law prevails. (Part VII, s. 77)

Nisga’a

Nisga’a law prevails. (Ch. 11, s. 40)

Tsawwassen

Tsawwassen law prevails. (Ch. 16, s. 49)

Maa-nulth

Maa-nulth law prevails. (s. 13.13.3)

3.6.5. BC First Nations’ Laws/By-laws in Force and Other Activities

Indian Act Governance

First Nations membership codes in BC:


First Nation

Indian Act

Custom

ʔAkisq’nuk First Nation (f.Columbia Lake)

s.11

Adams Lake

s.10

Ahousaht

s.10

Aitchelitz

s.10

Alexandria, aka ?Esdilagh First Nation

s.11

Alexis Creek

s.11

Ashcroft

s.10

Beecher Bay

s.11

Blueberry River First Nations

s.11

Bonaparte

s.11

Boothroyd

s.10

Boston Bar First Nation

s.10

Bridge River

s.11

Burns Lake

s.11

Burrard (aka Tsleil Waututh)

s.10

Campbell River

s.10

Canim Lake

s.10

Canoe Creek

s.11

Cape Mudge

s.10

Cayoose Creek

s.11

Chawathil

s.11

Cheam

s.11

Chehalis (aka Sts'ailes)

s.11

Chemainus First Nation

s.10

Cheslatta Carrier Nation

s.10

Coldwater

s.11

Comox (aka K’omoks First Nation)

s.11

Cook’s Ferry

s.11

Cowichan

s.10

Da’naxda’xw First Nation

s.11

Ditidaht

s.10

Doig River

s.11

Douglas

s.11

Ehatteshaht

s.10

Esketemc (f. Alkali Lake)

s.11

Esquimalt

s.11

Fort Nelson First Nation

s.10

Gitanmaax

s.11

Gitanyow

s.11

Gitsegukla

s.11

Gitwangak

s.11

Gitxaala Nation (f. Kitkatla)

s.11

Glen Vowell

s.11

Gwa’sala-Nakwaxda’xw

s.11

Gwawaenuk Tribe (f. Kwa-wa-aineuk)

s.11

Hagwilget Village

s.11

Halalt

s.10

Halfway River First Nation

s.11

Hartley Bay

s.10

Heiltsuk

s.10

Hesquiaht

s.10

High Bar

s.10

Homalco

s.11

Hupacasath First Nation (f. Opetchesaht)

s.10

Iskut

s.10

Kamloops (aka Tk’emlúps te Secwépemc)

s.11

Kanaka Bar

s.10

Katzie

s.10

Kispiox

s.10

Kitamaat (aka Haisla)

s.10

Kitasoo

s.11

Kitselas

s.10

Kitsumkalum

s.10

Klahoose First Nation

s.11

Kluskus (aka Lkoosk'uz Dene Nation)

s.10

Kwadacha (f. Fort Ware)

s.11

Kwakiutl

s.10

Kwantlen First Nation (f. Langley)

s.10

Kwaw-kwaw-A-Pilt

s.10

Kwiakah

s.11

Kwicksutaineuk-ah-kwaw-ah-mish

s.11

Kwikwetlem First Nation (f. Coquitlam)

s.11

Lake Babine Nation

s.11

Lake Cowichan First Nation (f. Cowichan Lake)

s.11

Lax-kw’alaams

s.11

Leq’ a: mel First Nation (f. Lakahahmen)

s.10

Lheidli T’enneh (f. Fort George)

s.11

Little Shuswap Lake

s.10

Lower Kootenay

s.11

Lower Nicola

s.11

Lower Similkameen

s.11

Lyackson

s.11

Lytton

s.10

Malahat First Nation

s.11

Mamalilikulla-Qwe’Qwa’Sot’Em

s.11

Matsqui

s.10

McLeod Lake

s.10

Metlakatla

s.11

Moricetown

s.11

Mount Currie

s.10

Mowachaht/Muchalaht

s.10

Musqueam

s.10

N’Quatqua (f. Anderson Lake)

s.11

Nadleh Whuten

s.11

Nak’azdli

s.11

Namgis First Nation (f. Nimpkish)

s.11

Nanoose First Nation

s.10

Nazko

s.10

Nee Tahi-Buhn

s.11

Neskonlith

s.11

New Westminister

s.11

Nicomen

s.10

Nooaitch

s.11

Nuchatlaht

s.11

Nuxalk Nation (f. Bella Coola)

s.10

Okanagan

s.11

Old Massett Village Council

s.11

Oregon Jack Creek

s.11

Osoyoos

s.10

Oweekeno/Wuikinuxv Nation

s.11

Pacheedaht First Nation (f. Pacheenaht)

s.10

Pauquachin

s.10

Penelakut

s.10

Penticton

s.11

Peters

s.10

Popkum

s.11

Prophet River First Nation

s.11

Qualicum First Nation

s.10

Quatsino

s.11

Red Bluff (f. Quesnel, aka Lhtako Dene Nation)

s.10

Saik’uz First Nation (f. Stony Creek)

s.11

Samahquam

s.11

Saulteau First Nations

s.10

Scowlitz

s.11

Seabird Island

s.10

Semiahmoo

s.11

Seton Lake

s.11

Shackan

s.11

Shuswap

s.11

Shxw’ow’hamel First Nation

s.11

Shxwhá:y Village (f. Skway)

s.10

Simpcw First Nation (f. North Thompson)

s.11

Siska

s.10

Skatin Nations (f. Skookumchuck)

s.11

Skawahlook First Nation

s.10

Skeetchestn

s.10

Skidegate

s.11

Skin Tyee

s.11

Skowkale

s.10

Skuppah

s.10

Skwah

s.11

Sliammon

s.11

Snuneymuxw First Nation (f. Nanaimo)

s.11

Soda Creek (aka Xat'súll First Nation)

s.11

Songhees First Nation

s.10

Soowahlie

s.11

Spallumcheen (aka. Splatsin)

s.11

Spuzzum

s.10

Squamish

s.10

Squiala First Nation

s.10

St. Mary’s

s.10

Stellat’en First Nation (f. Stellaquo)

s.11

Stone (aka Yunesit'in Government)

s.11

Sumas First Nation

s.11

T’it’q’et (f. Lilloet)

s.10

T’Sou-ke First Nation (f. Sooke)

s.11

Tahltan

s.11

Takla Lake First Nation

s.11

Tl’azt’en Nation

s.11

Tl’etinqox’t’in Government Office (f. Anaham)

s.11

Tla-o-qui-aht First Nations

s.10

Tlatlasikwala

s.11

Tlowitsis Tribe

s.11

Tobacco Plains

s.10

Toosey

s.11

Ts’kw’aylaxw First Nation (f. Pavilion)

s.11

Tsartlip

s.11

Tsawataineuk

s.10

Tsawout First Nation

s.10

Tsay Keh Dene

s.11

Tseshaht (f. Sheshaht)

s.10

Tseycum

s.10

Tzeachten

s.10

Ulkatcho

s.11

Union Bar

s.10

Upper Nicola

s.11

Upper Similkameen

s.11

West Moberly First Nations

s.11

Wet’suwet’en First Nation (f.Broman Lake)

s.11

Whispering Pines/Clinton

s.11

Williams Lake

s.10

Xaxli’p (f. Fountain)

s.11

Xeni Gwet’in First Nations Government t (f. Nemaiah Valley)

s.11

Yakweakwioose

s.11

Yale First Nation

s.11

Yekooche

s.11

Totals

111

75

Comprehensive Governance Arrangements

BC First Nations with Citizenship Acts, Membership Acts and Regulations under comprehensive governance arrangements:

First Nation By-law Description

Huu-ay-aht First Nations

HFNA 2011

Citizenship Act

Ka:’yu:’k’t’h’/Chek’tles7et’h’ First Nations

KCFNS 10/2011

Citizenship Act

Nisga’a Lisims Government

Mar 2008

Nisga'a Citizenship Act

Nisga’a Lisims Government

Oct 2008

Nisga'a Citizenship Regulation

Sechelt Indian Band

1993

Sechelt Constitution

Toquaht Nation

TNS 10/2011

Citizenship Act

Tsawwassen First Nation

Apr 2009

MEMBERSHIP ACT

Uchucklesaht Tribe

UTS 10/2011

Citizenship Act

Uchucklesaht Tribe

UTS 1/2011

Citizenship and Enrolment Forms Regulation

Ucluelet First Nations

YFNS 10/2011

Citizenship Act

Ucluelet First Nations

YFNS 1/2011

Citizenship and Enrolment Forms Regulation

Westbank First Nation

Jul 2007

Westbank First Nation Constitution

3.6.6. Resources

  • Assembly of First Nations

Trebla Building

Suite 900, 473 Albert Street

Ottawa, ON K1R 5B4

Phone: 613-241-6789

Toll Free: 1-866-869-6789

Fax: 613-241-5808

www.afn.ca

  • Indian and Northern Affairs Canada

British Columbia Region

Suite 600, 1138 Melville Street

Vancouver, B.C. V6E 4S3

Phone: 604-775-7114 or 604-775-5100

Fax: 604-775-7149

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