tansi ninôtemik,
The Indigenous Law Students’ Association’s 2024 Speaker Series continues!
On Thursday, March 8th, the Indigenous Law Students’ Association speaker series concluded with a talk from Judge Sheldon Spotted Elk.
Sheldon Spotted Elk Talk is the Chief Judge at the Ute Indian Tribal Court of Appeals. Before his appointment, Judge Spotted Elk represented children in legal proceedings. He reduced the number of Indigenous children in care. He is committed to improving outcomes for children in the child welfare system.
The Ute Indian Tribal Court of Appeals is a U.S. Tribal court. Tribal Courts adjudicate laws made in Tribal governments. That is to say, law made by Indigenous communities. In this respect, the United States is ahead of Canada in terms of its recognition of Indigenous law.
Tribal Courts exist by way of “Federal Indian law” which operationalizes Indigenous communities’ lawmaking powers. Additionally, state courts have a role to play, as these are where courts under the Indian Child Welfare Act (“ICWA”) sit. Approximately 30% of the Indigenous children in care move through ICWA courts.
Judge Spotted Elk explains that each of these jurisdictions, federal, state and Tribal, overlap to form a framework for Indigenous child welfare in the United States. This overlapping is similar to the Supreme Court of Canada’s recent opinion in reference re: Bill c-92 that UNDRIP implementation requires braiding Indigenous law, Canadian law and International law into a single strong rope. [2]
Other similarities between Canadian and US Child welfare frameworks include that Federal laws mirror Indigenous laws. In Canada, Bill c-92 contains national minimum standards that apply universally to Indigenous children in care. [3]
While U.S. Federal Indian law mirrors Indigenous law as well, it does so in a way Canadian courts have yet to comment on. Federal Indian law mirrors the Indigenous law to say that Tribal courts have inherent jurisdiction over Indigenous children in Care. Bill c-92 recognizes inherent right to self-government over child and family services, but does not go so far as to create courts to be adjudicated by Indigenous communities. [4]
Judge Spotted Elk offered a metaphor used in Child Welfare where the child welfare system is a river. If one child is floating down the river, steps will be taken to remove them. But after seeing so many children in the river, there is a need to go upstream to figure out why.
Until next time,
The reconciliACTIONyeg team
University of Alberta Faculty of Law, “2024 ILSA Speaker Series” (2024) online: University of Alberta <https://www.ualberta.ca/law/about/ilsa-speaker-series.html>
Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII) at para 7 ("Ref re bill c-92")
Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, See, for instance, ss 8, 9, 10, 16 ("Bill c-92")
See Bill c-92, preamble and Ref re bill c-92, note 2 at para 19