Rights of Indigenous Peoples
Indian Act
Know Your Rights
Criminal Law
Child Protection
Fair Decision Making
Under the Indian Act a Band is a body of Indians that a reserve has been created for.
Although the Indian Act uses the term Band, the term First Nation is often used to refer to Bands. The term First Nation will be used instead of Band on this site, except when looking at how it is defined in the Indian Act.
Band is a term used in the Indian Act. It means a First Nation that a reserve has been created for. It can also mean a First Nation that money has been set aside for by the Government of Canada or a First Nation declared to be a Band by the government.
Who Are Band Members Under the Indian Act?
When reserves were created, the government made a list of all the members of the First Nation the reserve was created for. The government called these groups of First Nations people Bands. Over time, the government added to this list anyone who was a member of the Band. Under the Indian Act, before 1985, a person could not be on a Band list unless they were also registered as an Indian under the Act or could be.
Since 1985, First Nations have the option of deciding themselves who is a member under the Indian Act and who is not. To exercise this option, they need to give notice to the people who are already members. After this, a majority of the existing members need to agree to the First Nation controlling membership. There are a couple of important rules that still apply…
- The First Nation cannot exclude people who had the right to be members when the First Nation took control even though they were not on the list.
- The First Nation must have a way for people to challenge a decision about membership.
In this section we are looking at who can be a be a Band Member under the Indian Act. Outside of the Act, First Nations can and always have had their own ways of determining who is a member, including recognizing people as members who not recognized in the Indian Act.
Prior to the arrival of Europeans, the question of whether a certain person “belonged” to a First Nation was determined by the cultural rules and practices of that particular nation. In the 1850s, however, the governments of the Canadian colonies began to use laws to establish which individuals, in the government’s view, validly belonged to a particular group of First Nations people. These rules, which eventually became part of the first Indian Acts, had little or nothing to do with the cultural practices and family structures of First Nations peoples.
Is Being an Indian Under the Indian Act the Same as Being a Band Member?
Once a First Nation takes control of their own membership under the Indian Act, they can include people who are not Indians under the Indian Act as members and these people are then included in the Indian Act definition of Band member. The First Nation can also exclude people who are defined as Indians under the Indian Act from being Band members under the Indian Act.
Does the Indian Act Apply to Band Members Who are Not Indian?
There are some parts of the Indian Act that do not apply to members who are not Indian under the Indian Act and some that do.
A member who is not an Indian under the Indian Act:
- can be given possession of reserve land using the same process that is used for members who are registered as Indians under the Act
- can transfer possession to another member using the same process that is used for members who are registered as Indians under the Act
- is exempt from taxes on reserve land
- is protected against their property, such as a house, car or furniture, on the reserve being taken for an unpaid loan
- can vote in First Nation Council elections
- must follow First Nation Council bylaws
- can share in First Nation money held by the government
- may benefit from other social programs the government has for First Nation people
The Indian Act rules about Wills and Estates do not apply to a member who is not an Indian under the Indian Act.
Are There Benefits That Band Members Who are Not Indians Cannot Get?
The personal property (not land or a house) of a member who is not an Indian under the Indian Act is not exempt from taxes.
Members who are not Indians under the Indian Act do not receive Non-insured Health Benefits from the government.
Members who are not Indians under the Indian Act cannot be part of the Post-Secondary Student Support Program.
