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The fundamental legal unit of government for Canadian First Nations is the band.[1]
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A band is typically, but not always, composed of a single community. Many bands, especially in British Columbia, control multiple Indian reserves, that is, multiple parcels of land. Although bands currently have considerable control over their reserve land, strictly speaking neither the band itself nor its members owns the land. Rather, the land is held in trust for the band by the Crown.[2]
The term band is historically related to the anthropological term band society, but as a legal and administrative unit the band need not correspond to a band in this sense. Some bands draw their members from two or more ethnic groups due to the disruption of traditional ways by colonization and/or the administrative convenience of Canada.
The functioning of a band is controlled by the Indian Act, the legislation that defines the position of status Indians. The band government is controlled by a chief councillor and council. The number of councillors is determined by the number of band members, with a minimum of two in addition to the chief councillor. The Indian Act specifies procedures for the election of the chief councillor and council. Some bands make use of a policy provision (called 'custom election') that allows them to exempt themselves from these requirements in order to follow traditional procedures for the choice of leaders. This is a matter of controversy. Proponents argue that it allows First Nations to adapt the externally defined system to their traditions. Sometimes this means that 'hereditary' leaders become the chief councillor. Opponents argue that custom systems are frequently not traditional and that, traditional or not, they are unfair and undemocratic and have the effect of preserving the power of corrupt cliques and, in many cases, of excluding women; and also excluding hereditary leaders.[3] The term "Chief" actually refers to a chief councillor - this individual is not necessarily a hereditary chief or leader, though some are.
Although the current policy of the Department of Indian and Northern Affairs is to treat band governments as largely autonomous, under the Indian Act band council resolutions have no effect unless endorsed by the Minister of Indian and Northern Affairs.
In addition to the chief and council system mandated by the Indian Act, some bands have a traditional system of government that retains considerable influence. In some cases the two systems have come to an accommodation, such as the Office of the Hereditary Chiefs of the Wet'suwet'en. In other cases the two are in conflict.
Two or more bands may unite to form a tribal council. Tribal councils have no independent status; they draw their powers entirely from their member bands. What powers are delegated to the tribal council and which services are provided centrally by the tribal council varies according to the wishes of the member bands.[4]
In addition to tribal councils, bands may create joint organizations for particular purposes, such as providing social services or health care. For example, in the central interior of British Columbia, Carrier Sekani Family Services provides social services for a dozen bands. CSFS was originally a part of the Carrier Sekani Tribal Council but is now a separate organization and includes among its members bands that are not members of CSTC.
During treaty negotiations, like the British Columbia Treaty Process, bands claims may be presented by tribal councils, or by separate "treaty groups" or "treaty councils".
A further complication is created by the existence of groups of Indian descent whose Indian Status is not recognized by Canada. These are often the descendants of bands considered by Canada to have become extinct. Such groups have no official existence but may nonetheless have some degree of political organization. The Sinixt, now based in Washington State as part of the Federated Tribes of the Colville Reservation but who formerly lived in British Columbia are an example of such a politically-active group with no band government but whose members still have Indian status (in the US) and ongoing claims in BC.
In addition to tribal councils and special-purpose service organizations, bands may form larger organizations. The largest is the Assembly of First Nations, which represents the chiefs of over 600 bands throughout Canada. There are also some regional organizations. The Chief of the AFN is referred to as the National Chief. The AFN also has a Vice-Chief for each region.
In British Columbia, the First Nations Summit represents the approximately two-thirds of bands in the province that are engaged in treaty negotiations with Canada and British Columbia, while an older organization, the Union of British Columbia Indian Chiefs, represents the bands that reject the current British Columbia Treaty Process. Some bands belong to both. In Ontario, the Chiefs of Ontario serve as the provincial-level organization; in Saskatchewan, the provincial-level grouping is the Federation of Saskatchewan Indian Nations.
From a constitutional point of view, not all indigenous people are First Nations people. In addition to Indians, the Constitution (section 35.2) recognizes two other indigenous groups: the Inuit and the Métis. The national organization of the Inuit is the Inuit Tapirisat of Canada. The self-governing territory of Nunavut is inhabited primarily by Inuit people. The status of the Métis remains unresolved but has been the subject of recent negotiations leading to the Métis Nation Framework Agreement between various Métis organizations and Canada.
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