Decision reached

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The Supreme Court decision to strike out the words from the Indian Act that determined eligibility for voting in First Nation band elections may or may not affect First Nation people in Alberta. It will depend on whether bands have established or will establish custom election codes and whether those codes limit certain people.

"The decision does not affect our First Nation because we are under band custom," said Eddie Tallman, chief of the Whitefish First Nation.

Though Tallman is also the grand chief of Treaty 8, he said each First Nation has the right to autonomy and made a point of saying he was only speaking for his community as its chief.

The chief said Whitefish band members are welcome to vote at elections whether they live on reserve or off reserve, that is providing they cast their votes at the Whitefish polling station, said Tallman.

"The direction comes from the membership for approval of our custom election code. It is those people who come to our meetings that can decide and they have that right to be there," said Tallman.

Each First Nation community should have authority over what happens for their band. How that happens should come from within the community through meetings. It is a special decision that belongs to that band, said Tallman.

In Tallman's opinion, the court ruling takes away from the First Nation people's right to determine how law is made, which in turn takes away any decision making power of the people, he said.

"When a ruling is made by a court that is not our law, it is not respecting First Nation autonomy - that's my beef. We signed the treaty with the Crown and they are not recognizing that we signed it nation to nation," said Tallman. He believes First Nations people are equal to other people in Canada, but, because of the special status First Nations people have through the treaties, they have a different relationship with Canada, said Tallman.

There are bad court decisions and good court decisions, said Tallman. He points to the Supreme Court ruling on the well-known Delgamuukw case as a good decision.

"The court said,'Yeah we believe you.' It re-affirmed what we knew all along," said Tallman. The Batchewana court decision, however, over-steps First Nation jurisdiction, said Tallman.

"Because now the court comes along and says 'you have to do it this way or face consequences,'" said Tallman. For my First Nation, we'll let everyone vote who is a member," said Tallman.

The issue of membership at Whitefish First Nation was prominent before 1985. It was then that Whitefish First Nation changed the membership code and there was very little time to do it, said Tallman. He is referring to the 1985 court decision, better known as Bill C-31, that spawned an amendment to the Indian Act.

For some First Nations people, the Batchewana court decision may correct a biased system for the Aboriginal people who live off-reserve, according to Brad Enge, director of the Indigenous Law Program at the University of Alberta.

It seemed inherently unfair to the people who live off-reserve, for whatever reasons, to exclude them from a vote." But Enge said the "Supreme Court did not go far enough to include the Aboriginal people who are re-instated through Bill C-31."

The law director believes First Nations bands will find a way around the Batchewana decision because there are still ways and means of doing that through band custom membership codes.

Another factor in the outcome of the decision will be how Indian Affairs decides to remedy the Indian Act so it conforms to the Constitution, said Enge. The court suspended the judgment for 18 months. In that time, bands can develop band membership codes and take control over who is a band member and exclude those people who don't reside on reserve, said Enge.

"The issue is, is it a valid argument to assert an Aboriginal right to exclude members of a band who don't physically reside on the designated Indian reserve when elections come around?" asked Enge.

nge doesn't think it is a custom or a tradition of Aboriginal people to keep out those members just because they are absent from their home reserve, said Enge.

"It is very disrespectful of modern day First Nation leaders to the grandmothers and the grandfathers, to the ancestors of those people, to deny them the opportunity to participate in the politics of the band. Those grandfathers and grandmothers kept the band together and respected one another. It is a very undignified way of treating band members merely because someone has higher political aspirations," said Enge.

Some of the ideals of Aboriginal self government are geared towards inclusiveness because the traditions and customs can be hurt, along with the people, by using the Indian Act provisions to exclude people from being able to participate, said Enge.

For the next 18 months Indian Affairs and First Nation leaders will meet to discuss the decision that will amend the Indian Act to make it conform to the principals set down by the Supreme Court of Canada.