On December 24, 2022, Bill C-38, An Act to amend the Indian Act (new registration entitlements), was introduced.
The Bill primarily deals with registration for Indian status under the Indian Act. Indigenous Services Canada maintains the Indian Register, which is the official record of persons registered under the Indian Act.
The Bill is part of a long history of amendments to the Indian Act aimed at addressing discrimination in registration.
The Bill addresses four main issues:
- allowing descendants of enfranchised individuals to obtain Indian status;
- allowing for voluntary deregistration;
- recognizing a person’s right to register with their natal Band; and
- eliminating offensive language.
Enfranchisement
Enfranchisement is the process that results in a person losing their Indian status. Previous amendments to the Indian Act allowed individuals who were voluntarily or involuntarily enfranchised to apply to have their registration reinstated; however, their grandchildren remained ineligible for registration. The Bill would allow these descendants to obtain Indian status. Canada estimates that approximately 3,500 individuals may be eligible for registration over the next five years under this amendment.
Individual deregistration
Currently, individuals who have Indian status cannot request to be removed from the Indian Register. The Bill would allow individuals to apply to have their names removed from the Indian Register but give them the right to reapply in the future. They will also retain the ability to pass their Indian status to their descendants. Once a person is de‐registered, they no longer have access to services or benefits associated with Indian status.
Canada indicates that a person may want to de-register if they wish to enroll with an American Indian Tribe, if they want to identify and/or register as a Métis person, if they no longer wish to be recognized on the federal Indian Register or if their parents registered them as children and they are withdrawing their consent for registration.
Right to membership in natal band
The Bill recognizes the rights of all First Nations persons to membership with their natal Band. This amendment mainly affects women who were automatically moved to their husbands’ band list upon marriage, along with their descendants. The Bill will allow people who grew up as members of one First Nation but lost their membership to apply to be members of that First Nation again.
Outdated and offensive language
The Bill will remove outdated and offensive language in the Indian Act.
Potential impacts
If passed, the amendments will primarily impact those First Nations whose Band lists are maintained by Canada under section 11 of the Indian Act. The amendments to the Indian Act could result in both decreases and additions to some First Nations’ membership. For example, if persons obtain Indian status and Canada adds those persons to a First Nation’s membership list or if persons de-register and are removed from a First Nation’s membership list. This could have implications for funding sources that are based on membership numbers.
The Bill is currently making its way through the House of Commons. MLT Aikins Indigenous practice lawyers will be watching for opportunities to provide input at the Committee stage before the House and Senate. We would be pleased to work with Indigenous governments and organizations who wish to make submissions to Parliamentary committees on Bill C-38. Contact us to learn more.