Below is a direct copy from the current Indian Act. This describes the vast powers of Reserve Band Councils. It must be said this only applies to reserve lands, the only jurisdiction Band Councils presently have any say over.
At present, contained within this act is the right to tax the residents of the reserve and perform almost anything any other government in Canada has the right to perform. In most cases the Band Councils have more power than Municipal and Regional District Councils.
Other parts of the Indian Act protect the Indians from all styles of abuses and ensures the Indians are afforded the best protection.
Considering the present powers of the Band Council along with the other provisions of the Act; those protecting Indians from abuse by their Councils and more, the only discussion might be the size of the reserve lands. That which has been at the forefront of the arguments since 1880 and earlier.
Settling this single issue would be the logical first step. Talking about the other details, all those issues to remove the Indians from the Indian Act, should only be debated after the land claim issue is first settled. This is the only issue every elder, ancestral, negotiating team has considered for over 125 years.
And Band Councils do not have that authority, only Hereditary Chiefs do. Band Councils were appointed by the Federal Government so thereby face a position of conflict of interest.
Allowing the government negotiators to side track the issue onto other matters is trickery. The elders are likely yelling from their graves, land first, Indian Act second. Elected band Councillors are generally not listening to the screams of anguish from those who have gone before.
Further, if the high Hereditary Chiefs of each clan are unclear or uncertain, this is strictly the fault of the Canadian government, the party in these negotiations who the Indians attempt to resolve this land question with. It was this government that banned the Potlatch (the manner in which to select and install Hereditary Chiefs) and took the children away to residential schools.
Thereby it is incumbent upon the Canadian Government to wait and ensure the correct and proper lineage is in place prior to any negotiations proceeding.
The Potlatch was banned for a total of close to 75 years.; 1876 to 1951. It is not unreasonable to ask the government wait that long after they were permitted again, even though it should be twice that long due to the lost knowledge and taken children. Seventy five years would be 2026.
To not ensure this is proper, is to begin a process on false grounds. This must be made clear to the Band Councils and the Government negotiators.
Ensuring the proper lineage requires other bordering Indian nations accepting the authority of the Hereditary Chiefs. Much like Canada and other Nations accepting Kosovo or Libya as independent Nations with appropriate governance (political) bodies; when multiple bordering First Nation groups acknowledge the appropriate Hereditary Chiefs are in place, the Federal Government will then have a proper negotiating body ready.Treaty Vs Indian Act
When considering negotiating a treaty, it must be known what style of deal is already in place.
Is the Indian Act better or worse than a potential treaty?
Is there any harm in waiting until the Hereditary Chiefs are properly installed to settle this issue?
To know this one must know what the Indian Act provides now.
Below is an excerpt. Read the entire Indian Act herePOWERS OF THE COUNCILBy-laws
81. (1) The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely,
(a) to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases;
(b) the regulation of traffic;
(c) the observance of law and order;
(d) the prevention of disorderly conduct and nuisances;
(e) the protection against and prevention of trespass by cattle and other domestic animals, the establishment of pounds, the appointment of pound-keepers, the regulation of their duties and the provision for fees and charges for their services;
(f) the construction and maintenance of watercourses, roads, bridges, ditches, fences and other local works;
(g) the dividing of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any zone;
(h) the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band;
(i) the survey and allotment of reserve lands among the members of the band and the establishment of a register of Certificates of Possession and Certificates of Occupation relating to allotments and the setting apart of reserve lands for common use, if authority therefor has been granted under section 60;
(j) the destruction and control of noxious weeds;
(k) the regulation of bee-keeping and poultry raising;
(l) the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies;
(m) the control or prohibition of public games, sports, races, athletic contests and other amusements;
(n) the regulation of the conduct and activities of hawkers, peddlers or others who enter the reserve to buy, sell or otherwise deal in wares or merchandise;
(o) the preservation, protection and management of fur-bearing animals, fish and other game on the reserve;
(p) the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes;
(p.1) the residence of band members and other persons on the reserve;
(p.2) to provide for the rights of spouses or common-law partners and children who reside with members of the band on the reserve with respect to any matter in relation to which the council may make by-laws in respect of members of the band;
(p.3) to authorize the Minister to make payments out of capital or revenue moneys to persons whose names were deleted from the Band List of the band;
(p.4) to bring subsection 10(3) or 64.1(2) into effect in respect of the band;
(q) with respect to any matter arising out of or ancillary to the exercise of powers under this section; and
(r) the imposition on summary conviction of a fine not exceeding one thousand dollars or imprisonment for a term not exceeding thirty days, or both, for violation of a by-law made under this section.
Power to restrain by order where conviction entered
(2) Where any by-law of a band is contravened and a conviction entered, in addition to any other remedy and to any penalty imposed by the by-law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted.
Power to restrain by court action
(3) Where any by-law of a band passed is contravened, in addition to any other remedy and to any penalty imposed by the by-law, such contravention may be restrained by court action at the instance of the band council.
R.S., 1985, c. I-5, s. 81;
R.S., 1985, c. 32 (1st Supp.), s. 15;
2000, c. 12, s. 152.Copies of by-laws to be sent to Minister
82. (1) A copy of every by-law made under section 81 shall be forwarded by mail by the chief or a member of the council of the band to the Minister within four days after it is made.
Effective date of by-law
(2) A by-law made under section 81 comes into force forty days after a copy thereof is forwarded to the Minister pursuant to subsection (1), unless it is disallowed by the Minister within that period, but the Minister may declare the by-law to be in force at any time before the expiration of that period.
R.S., c. I-6, s. 82.Money by-laws
83. (1) Without prejudice to the powers conferred by section 81, the council of a band may, subject to the approval of the Minister, make by-laws for any or all of the following purposes, namely,
(a) subject to subsections (2) and (3), taxation for local purposes of land, or interests in land, in the reserve, including rights to occupy, possess or use land in the reserve;
(a.1) the licensing of businesses, callings, trades and occupations;
(b) the appropriation and expenditure of moneys of the band to defray band expenses;
(c) the appointment of officials to conduct the business of the council, prescribing their duties and providing for their remuneration out of any moneys raised pursuant to paragraph (a);
(d) the payment of remuneration, in such amount as may be approved by the Minister, to chiefs and councillors, out of any moneys raised pursuant to paragraph (a);
(e) the enforcement of payment of amounts that are payable pursuant to this section, including arrears and interest;
(e.1) the imposition and recovery of interest on amounts that are payable pursuant to this section, where those amounts are not paid before they are due, and the calculation of that interest;
(f) the raising of money from band members to support band projects; and
(g) with respect to any matter arising out of or ancillary to the exercise of powers under this section.Restriction on expenditures
(2) An expenditure made out of moneys raised pursuant to subsection (1) must be so made under the authority of a by-law of the council of the band.Appeals
(3) A by-law made under paragraph (1)(a) must provide an appeal procedure in respect of assessments made for the purposes of taxation under that paragraph.Ministers approval
(4) The Minister may approve the whole or a part only of a by-law made under subsection (1).Regulations re by-laws
(5) The Governor in Council may make regulations respecting the exercise of the by-law making powers of bands under this section.By-laws must be consistent with regulations
(6) A by-law made under this section remains in force only to the extent that it is consistent with the regulations made under subsection (5).
R.S., 1985, c. I-5, s. 83;
R.S., 1985, c. 17 (4th Supp.), s. 10.Recovery of taxes
84. Where a tax that is imposed on an Indian by or under the authority of a by-law made under section 83 is not paid in accordance with the by-law, the Minister may pay the amount owing together with an amount equal to one-half of one per cent thereof out of moneys payable out of the funds of the band to the Indian.
R.S., c. I-6, s. 84.
85. [Repealed, R.S., 1985, c. 17 (4th Supp.), s. 11]By-laws relating to intoxicants
85.1 (1) Subject to subsection (2), the council of a band may make by-laws
(a) prohibiting the sale, barter, supply or manufacture of intoxicants on the reserve of the band;
(b) prohibiting any person from being intoxicated on the reserve;
(c) prohibiting any person from having intoxicants in his possession on the reserve; and
(d) providing for exceptions to any of the prohibitions established pursuant to paragraph
(b) or (c).Consent of electors
(2) A by-law may not be made under this section unless it is first assented to by a majority of the electors of the band who voted at a special meeting of the band called by the council of the band for the purpose of considering the by-law.Copies of by-laws to be sent to Minister
(3) A copy of every by-law made under this section shall be sent by mail to the Minister by the chief or a member of the council of the band within four days after it is made.Offence
(4) Every person who contravenes a by-law made under this section is guilty of an offence and liable on summary conviction
(a) in the case of a by-law made under paragraph (1)(a), to a fine of not more than one thousand dollars or to imprisonment for a term not exceeding six months or to both; and
(b) in the case of a by-law made under paragraph (1)(b) or (c), to a fine of not more than one hundred dollars or to imprisonment for a term not exceeding three months or to both.
R.S., 1985, c. 32 (1st Supp.), s. 16.Proof
86. A copy of a by-law made by the council of a band under this Act, if it is certified to be a true copy by the superintendent, is evidence that the by-law was duly made by the council and approved by the Minister, without proof of the signature or official character of the superintendent, and no such by-law is invalid by reason of any defect in form.
R.S., c. I-6, s. 86.
Rudi's comments are irrelevent here.