It may be useful if scholars interested in band membership issues in Canada formed a working group. This informal group could pool resources and come together to respond to requests for clarification/research from communities, individuals, and policy makers alike. There may be a growing need for such a working group as more section 10 membership issues make their way to courts of law.
There is a difference between “customary” and “customized.” Many might say that section 10 membership codes are “custom codes,” but this does not necessarily mean they manifest customary Indigenous law in the present. For example, some section 10 codes are mere customizations of the pre-1985 Indian Act status and membership provisions, or of colonial stereotypes about Indianness (e.g. bloodlines to the exclusion of all else). Thus, it is worthwhile asking what people mean when they refer to, for example, a “custom band membership code,” when the word “custom” can be shorthand for two terms that differ vastly in their political meaning.
To this end, I’m pasting definitions of the words “customized” and “customary” below:
- Customize (verb): Modify (something) to suit a particular individual or task.
- Customary (adjective): According to the customs or usual practices associated with a particular society, place, or set of circumstances.
Of course, to say that sui generis Indigenous legal orders are only “customary” is to reduce their political importance. They are more than simply “usual practices;” they are legal systems unto themselves. But thats another blog post…