IN FEBRUARY 2020, a special feature by APTN called “Perspectives on Band Membership” addressed the seemingly ongoing challenges First Nation community members face around membership and belonging, with a specific focus on two-spirit families.

APTN revealed that families from the Stoney Nakoda and Madawaska Maliseet First Nations are experiencing difficulty in registering their children as members of their respective bands. Both communities control their membership lists under section 10 of the Indian Act; this story raises questions about the ways in which band-controlled membership might exclude individuals who otherwise might belong with their communities.

To date, very little academic literature exists that accounts for how two-spirit people have experienced the Indian Act generally, and band membership specifically.

This brief provides two points of context on two-spirit band membership issues in Canada.¹ First, we look at the legislative framework that First Nations can use to write their own membership codes, specifically focusing on section 10 of the Indian Act. We then consider  some of the ways that two-spirit and queer family making is challenging not just how belonging is imagined in First Nations, but the concept of Indigeneity itself. 

Section 10 of the Indian Act

Canada’s Indian Act was introduced  in 1876. While there have been dozens of amendments to the law, it is still in place today. In 1985, however, it underwent a major amendment in an attempt to eradicate sex-based discrimination. Throughout much of the Act’s history, “Indian” women would lose their status if they married a non-Indian man. The 1985 amendment, known as Bill C-31, sought to change this, but failed.

But Bill C-31 also did something else: It gave Indian bands the option to control their own membership for the first time in the Indian Act’s history. Somewhere between 220 and 240 bands took this opportunity, using the Act’s newly minted “section 10” to write their own membership codes.

However, while section 10 membership was positioned as giving First Nations more control over their affairs, it also offered bands the chance to exclude certain classes of people.²

As Bill C-31 was rolling out, many bands were worried about an influx of potential new members coming back to reserves. This fear was rooted in economic anxieties. And so section 10 was structured in part to mitigate these fears. To be specific, bands had the power to now exclude some people, so long as they ratified membership codes before June 28, 1987.³

The ability to exclude individuals who would otherwise likely belong to their nations has thus been baked into section 10 from the beginning.⁴

The majority of section 10 codes made membership contingent on Indian status, lineal parentage, or blood quantum, all of which rely strongly on biology-based notions of identity and belonging. Ironically, this is not dissimilar from historic federal Indian policy. 

But as we can see in the APTN feature noted above, such criteria are also heteropatriarchal: male-female sexual encounters were required to make a child with enough Indian blood to qualify for state-recognition as an Indian.

From Canada’s perspective, historically, this made sense; queer Indigenous families and sexualities were seen as “unproductive,” and therefore abhorrent in the emerging capitalist economy.⁵ But with Bill C-31, this heteropatriarchy made it into many band-controlled membership codes.

Two-spirit family making

Despite the long history of heteropatriarchy impacting First Nations communities, two-spirit families have always participated in the renewal of their nations. While other less formal kinship practices might have been one way to do so in the past, two-spirit families today have (some) access to a range of options to bring children into their nations. These include surrogacy and an assortment of assisted reproductive technologies (ARTs) such as in vitro fertilization.

Research has shown that with the rise of ARTs, non-Indigenous queer families are claiming their children not just in a custodial sense, as might be the case with adoption, but in biological sense. In other words, when creating families outside of the heteropatriarchal mold, some queer families see ARTs as “creat[ing] biology itself.”⁶

This fluidity around kinship resonates within inherent Indigenous citizenship orders, many of which see identity, biology, and “blood” as malleable or contrapuntal concepts.⁷ Indeed, for the Stoney Nakoda and Madawaska Maliseet families noted in the APTN article above, their children are their children. Full stop.

Possibly more salient, however, is the effect that two-spirit family making has on the larger discourses of First Nations identity and belonging. 

Given the fact that Indianness and band membership were contingent on essentialized biological criteria for so long, ARTs and two-spirit kinships challenge the very criteria of “authentic” Indianness that have been inherited from the Indian Act. Put another way: they are challenging the commonly held (and in some cases imposed) belief that Indigeneity is something that can only be produced heterosexually. This has significant implications for how Indigeneity and belonging are constructed, considering the Indian Act’s legacy of instituting biologized Indianness.

The future of band membership

Section 10 of the Indian Act is now 35 years old. And in that time, a number of individuals have brought legal action against their respective bands with regard to how membership is determined.⁸ But in light of APTN’s recent coverage on these matters, it seems that we’re entering into a new phase of section 10 challenges, this time led by two-spirit families.⁹

And the timing is right: In late 2017, in response to the Descheneaux Decision, the federal government was forced to pass Bill S-3 to amend the Indian Act (again), this time extending Indian status to women who lost it upon marriage all the way back to 1869.¹⁰ While preparing for this amendment, Canada considered accepting feedback on “issues surrounding children of same-sex parents and non-cisgender identities as they relate to…band membership.” 

For the first time in the Indian Act’s history, then, it seems there is room to imagine band membership in ways that refuse heteropatriarchal family formations.

But any new membership regime will need to carefully consider how to include all who rightfully belong, regardless of sexual orientation and family status.

This brief is part of a larger project focusing on understanding the legacy of section 10 band membership codes in Canada. The authors would like to thank the Social Sciences and Humanities Research Council (SSHRC) for its generous financial support. More information on the project can be found here: https://exploringsection10.com