Legislating Belonging: Identity, Law & the Indian Act

By Casey Caines

Photo by John Cameron on Unsplash

At the centre of Indian status and citizenship lies the pull between personal identity and state control. As Larry Gilbert writes, “[s]eeking and protecting one’s identity is a personal and a very human aspiration. It is seldom that the state intervenes and declares persons are not who they really are. That is the legacy and the reality of the Indian Act.” It is also the intersection at which many Nations sit as they work through the fraught reality of law, identity, colonial history, and community self-determination. 

At their core, membership codes determine who belongs to a First Nation—who can access rights, participate in governance, and claim cultural and political identity. Yet these determinations are rarely straightforward, and the tensions surrounding them reflect deeper structural and historical challenges.

One major source of complexity is the legacy of externally enforced legislation, in particular the Indian Act. For much of Canadian history, the federal government has imposed rigid and externally defined criteria for “status” (see our previous posts on Bill S-2 for historical context on gendered discrimination and the implications here.) As such many communities now contend with categories of status that are difficult to reconcile with their legal traditions and  understandings of belonging.

Under section 11 of the Indian Act, Nations that do not enact their own membership codes are managed by the federal government under the Indian registrar. This means that citizenship within a membership code is defined strictly by Status under the Indian Act. The other section dealing with citizenship is section 10 of the Indian Act, which deals with the governance of First Nations membership codes outside of federal management.  Under section 10 Nations maintain control over their membership lists, as determined by their own codes (see work by Damien Lee, Kirsty Gover, and Kahente Horn-Miller on individual membership codes). 

The introduction of band-controlled membership codes was intended, in part, to restore authority to First Nations by allowing communities to opt out of federal control and establish their own criteria for membership. It is also supported by UNDRIP Article 33, which states that “Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.”

While this shift is often framed as a move toward self-determination, it has also produced difficult internal debates. Communities must balance competing priorities such as preserving cultural continuity, managing limited resources, and addressing historical exclusions. Decisions about whether to adopt inclusive or restrictive criteria can also have significant implications for housing, education funding, and political representation. 

Despite these challenges, Nations have taken up the work of envisioning community, belonging, and Nationhood under section 10 of the Indian Act. Utilizing their legal orders, laws, and governance rooted in their ways of being and knowing, Nations have and continue to reclaim, renew, and redefine what citizenship and belonging mean to them. An example is Fort William First Nation which developed a "Renewal, Resurgence, Re-Membering" citizenship document that defines belonging based on relationships and "how we belong together" rather than a focus on Indian Act status. 

This work comes at a pivotal time. With government data sheets showing that the second generation cut-off is going to significantly impact most Nations within the next few decades - reenvisioning what citizenship means is more important than ever. Questions of identity and belonging are both deeply political and also deeply personal. They are also the future. While the Indian Act has long imposed external definitions of status and citizenship, the shift toward section 10 membership codes and the affirmation of Indigenous self-determination under instruments like UNDRIP reflect an important opening for Nations to reassert their own legal orders and understandings of belonging.

As the second-generation cut-off rule looms for Nations, the urgency of this work continues to grow. Ultimately, reimagining membership is not only about addressing the legacies of the past, but also about asserting the right of Nations to define themselves into the future, in ways that reflect their laws, values, and visions of belonging. At the Lodge, we are excited about the ways Nations are leading this work and honoured to walk alongside some of them and support them as they do. 

Until next time, 

ReconciliACTION YEG