Where Are Our Children Going?
Should Native children be adopted by non-Native families?

by Luke Hertlein

Alone Without You, (24"X36') paper, tar, oil pastel, acrylic on canvas

Harking back to the colonialist and assimilist attitudes of the "Sixties Scoop" that saw thousands of Canadian Aboriginal children put into the child welfare system - with many shipped south to the United States - the Supreme Court of Canada (SCC) recently set a dangerous precedent for Aboriginal child welfare.

On February 17, 1999, the SCC disturbingly stuck to a strict legal approach and awarded the custody of an Aboriginal child to his white adoptive grandparents. This was despite the wishes of his Aboriginal mother and the fact he was living in the community with his Aboriginal grandfather in Canada.

This case has mobilized support from various Aboriginal communities to keep Aboriginal children in Canada. 'Me SCC held that the transfer of the child was to be done in an orderly fashion in the best interest of the child. Despite the unfavourable finding of the Court, the Aboriginal grandfather is committed to pursuing all legal options to keep the boy in Canada. I do not want to lose my grandchild."

The white grandparents have taken a more combative approach. In mid-March 1999, they agreed that they would only spend 24 hours with him and then return him to his Aboriginal grandfather. In good faith, the Aboriginal grandfather gave them the boy. However, the white grandparents never intended to return, as they took him back to the US. They subsequently had to return him back to Manitoba.

As with the most recent incident of the white grandparents, the facts in this case are as complicated as they are revealing. At four years old, the boy's mother (the boy's identity cannot be identified by way of court order) and her older sister were adopted, eventually moving to Connecticut in the United States. Their life with their white adoptive parents had been stormy, with the parents eventually institutionalizing the boy's mother for a period of time. Now four years old, the boy is ominously heading to the same home in the US where his mother and aunt had so many problems.

Since February 1996, the well-adjusted boy has been living with his Aboriginal grandfather, first in British Columbia and then Manitoba. In Manitoba, he lives on Sagkeeng First Nation territory, and has become part of the community. He has had the honour and benefit of caregiving from his great-grandmother. Before moving and living with his grandfather, he lived eight months with his white grandparents in Connecticut. He was with his white grandparents only because during that time, his mother finally found her biological father in B.C.. Upon her return to Connecticut, she took her boy and moved to Vancouver, B.C..

At the February 1996 hearing for interim custody, the B.C. Court was made aware that the mother's white adoptive parents could not properly raise their two Aboriginal children. The judge recognized that placement with the Aboriginal grandfather represented a maintenance of a close connection with his Native origin, and stated "there is no information before me as to how the [adoptive parents] tried to improve their own parenting skills or knowledge of Native adopted children in order to assist [the boy's mother] through these very adolescent years."

Fast forward to February 1999. In two short paragraphs without reasons, the SCC held that justice Bauman, the trial judge that presided over the September 1997 hearing for permanent custody, did not err in law. This is despite the fact justice Bauman made some findings that, to say the least, are troublesome. He placed a great amount of emphasis on the fact that the white grandparents were economically in a better position to provide for what was in the best interest of the boy. The judge also claimed that placing the boy with his white grandparents was not in complete disregard for his culture and heritage, citing the boy's Afro-American background and American citizenship, and that the white grandfather had used the Internet to research the boy's First Nation.

Despite a Family Court Counselor's report that highlighted the bonding between the boy and his Aboriginal grandfather, the judge dismissed this bond because he did not have any medical or scientific evidence on the possible disruption to the boy by altering the status quo of his custody. He also claimed there did not exist a lack of parenting skills of the white grandparents, despite available affidavits that detail the physical, emotional and mental experiences of the two adopted Aboriginal children in the home of the white grandparents. He blamed their inability to parent not on their lack of parental skills, but rather on medical problems of the Aboriginal kids. As well, the judge did not take into account the wishes of the biological mother, relying solely on what he considered was met for the test of the "best interests of the child" (BIOC).

"We cannot let this happen. There have been more than 3000 Aboriginal kids shipped out of the country. The Supreme Court sold out to the highest bidder. In effect the Court is further perpetuating genocide."

The 'best interests of the child test remains culturally inappropriate for Aboriginal children. It continues the historic process of child welfare, similar to the residential schools, and is colonialist in its nature" says Viola Thomas, President of the B.C. United Native Nations. The United Native Nations, an Aboriginal organization that advocates for all Aboriginal people in B.C. living away from their traditional territory, has been involved with the case from the beginning.

Citing the recent Royal Commission on Aboriginal People, the Manitoba Aboriginal justice Inquiry and the seminal Kimelman Report on adoptions and placements of First Nations and Métis children from Manitoba, there continues to be over-representation of Aboriginal children in care, including adoptions. Many experts in the child welfare field recognize the negative effects of placements of Aboriginal children to white families. Thomas contends the BIOC test is a test best suited for white, middle class notions of what is in tile best interest of a child: "How does the best interest deal with our culture? It does not. There is no way to incorporate our traditions and customs, our stories, songs and dances that honour our children. There is no way to incorporate extended family roles and the community, especially considering that poverty remains rampant in our communities."

Thomas and others, including the Aboriginal grandfather, have not confined criticism of this case to just the BIOC test. Larger issues come into play such as inherent cultural bias in the judicial process and problems concerning the negotiation and implementation of self-government. Eric Robinson, Member of the Legislative Assembly of Manitoba, has been instrumental in assisting the Aboriginal grandfather since the SCC's decision. He states, "We are now faced with a second generation sixties scoop. We cannot let this happen. There have been more than 3,000 Aboriginal kids shipped out of province and out of the country. This case is a sell off of our children: the Supreme Court of Canada sold out to the highest bidder; the white grandparents are wealthy and the Aboriginal grandfather is not. I wonder if the Supreme Court really understands what has been happening in that home in the US. In effect the Court is further perpetuating genocide."

Untitled, (36"X48'9 oil, acrylic, paper, canvas on wood

Art by Tracey Anthony R.R #6 Hagersville, Ontario, Canada NOA 1HO

Some Chiefs across the country have made public statements on the case in press releases, like Grand Chief Phil Fontaine of the Assembly of First Nations. Others like Chief Ron Bushie of the Assembly of Manitoba Chiefs and Chief Bill Traverse, Chief of the Southern Chiefs Organization that represents 36 First Nations in Manitoba, have gone further. Referring to the case as "a terrible injustice," Chief Traverse has also raised concern about the governments' commitment to work together with First Nations as partners toward self-government. Since the 1980s under the guise of self-government, there has been an increase of Aboriginal control and development, design and delivery of child and family services. This has resulted in most Aboriginal child care agencies that have adoption placement protocols, with priority given to the extended family, with Aboriginal members of the community, alternative Aboriginal caregivers all before non-Aboriginal caregivers. However, a number of these agencies have been limited because of funding constraints and limited policy support.

Moreover, it is hard to define what self-government is when the Aboriginal run agencies continue to implement governmental legislation and policy with the similarly problematic BIOC test. Momas asks "is this real self-government that respects our customs and traditions when, in many 'Aboriginal controlled' agencies, we are simply implementing provincial and federal government policy and legislation?"

Referring to the SCC case as a nineties version of the Sixties Scoop, Chief Traverse observes "we have been taking over Child and Family Services through tripartite agreements. This type of issue is not supposed to happen. In the current Manitoba Framework Agreement Initiative process with the federal and provincial governments, we are talking about self-government, with child welfare as a fast tracked item. Yet the province is not participating, and with cases like this one, it is clear we continue to deal with the same policies and laws of years ago." What is self-government when it appears that Aboriginal people, at least in child welfare, seem to simply implement the existing status quo? The implementation of existing legislation, policy framework, and historic oppression seems to be confirmed by today's government and courts. This is not just a philosophical or political question, but one that may determine the young boy's immediate future.

Originally an intervenor at the lower court, Sagkeeng First Nation was not given notice of application for leave to appeal to the SCC. Representing the Aboriginal grandfather, Winnipeg lawyer John Harvie has indicated that the rules for the Supreme Court allow for a potential rehearing of the case on these grounds, one tactic currently being pursued. Perhaps by being given such an opportunity, the SCC can get with the nineties on this case. The SCC has the potential benefit hearing how Aboriginal child welfare is grounded the inherent right to self-determination, as expressed in Sagkeeng First Nation's pursuit of self-government.

A possible final outcome of this case may directly touch the lives of not only one young boy and his grandfather, but others including our future generations. Culture and identity should become considerations that are respected for the best interests of our Aboriginal children.

Luke Hertlien is freelance writer and member of the Norway House Cree Nation in Manitoba. He has been adopted twice and just recently was reacquainted with his biological family.