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Progress for Indigenous Child Welfare Law

tansi ninôtemik,


The Truth and Reconciliation Commission recognized the harmful legacies of both residential schools and the Canadian child welfare system on Indigenous children and families.[1] Both residential schools and the child welfare system were born out of beliefs—by churches and the federal government—that Indigenous language, culture, and parenting was detrimental to Indigenous children.[2] Family connections were broken by the residential schools, which had over 11,000 Indigenous children in 1953.[3] 


Severing Indigenous children’s ties to their parents and communities made way for a child welfare system that removed thousands of Indigenous children from their families and communities, sending them to different parts of Canada, the United States, and elsewhere overseas with no regard for their cultural heritage.[4] The mass removal of Indigenous children from their communities through adoption continued from 1960 to 1990.[5] 


The child welfare system continues to remove Indigenous children from their communities and families, often placing children in situations where their safety is at risk and their cultural identity is unsupported.[6] Evidently, the child welfare system shares similarities with residential schools of the past.


While much could be written about Canada’s history of harming Indigenous children and the current state of the child welfare system, we want to highlight some of the newer legal changes that have been implemented to protect Indigenous children, families, and culture. An Act respecting First Nations, Inuit and Métis children, youth and families received royal assent in 2019.[7] The act was passed into legislation through Bill C-92.[8] Crucially, this act recognizes Indigenous legal jurisdiction in regards to child welfare law.[9] The act also states that Indigenous law will prevail in an instance where there is a conflict between an Indigenous law and a Canadian federal or provincial law.[10] The act is a step towards decreasing the apprehension of Indigenous children and allowing them to be connected to their communities and culture. 


Since Bill C-92 was enacted into legislation, Indigenous nations have been working on codifying child welfare laws under the act. The Louis Bull Tribe of Maskwacis has created the Asikiw Mostos O’pikinawasiwin (AMO) Law. The legislation concerns people under the age of eighteen, referred to as Awasisahk.[11] The law recognizes and affirms custom adoption.[12] Custom adoption is done through ceremony, and it is an arrangement where two families agree to raise the Awasisahk.[13] Family is a defined term that includes parents or guardians, aunts, uncles, siblings, grandparents, and members of the person’s maternal or paternal ancestry.[14] Definitions of family and adoption through an Indigenous perspective allows for more effective protection of Indigenous children. 


Significantly, the preferred way to support the Awasisahk’s wellbeing in the AMO Law is to provide support to those caring for the Awasisahk.[15] Decisions involving the Awasisahk must also be consistent with their language, values, traditions, and culture.[16] Providing support to families, rather than immediately apprehending a child, works to maintain connections within Indigenous families and communities. The AMO Law also fosters Indigenous childrens’ connection to their culture through the decision-making processes in the legislation. 


We are excited to see the progress of Bill C-92 through the recognition of Indigenous legal authority over child welfare legislation. The AMO Law demonstrates the positive impact that Indigenous legislation can have on Indigenous children’s and families’ lives, which contributes to the overall well-being of communities. We also hope for a future where the benefits of wholly recognizing Indigenous legal authority in all areas of law are realized.


ekosi.


The ReconciliACTION Team


Citations

[1] “Canada’s Residential Schools: The Legacy,” The Final Report of the

Truth and Reconciliation Commission of Canada, vol. 5 at 4.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] An Act Respecting First Nations, Inuit and Métis children, Youth and Families [Act Respecting First Nations], SC 2019, c 24.

[8] Bill C-92, An Act Respecting First Nations, Inuit, and Métis children, youth and families, 1st Sess, 42nd Parl, 2015 (assented to 21 June 2019).

[9] Act Respecting First Nations, supra note 7 at s 18.

[10] Ibid at s. 22(1), 22(3).

[11] Asikiw Mostos O’pikinawasiwin [Child Welfare Law], online: <https://amosociety.ca/amo-law/> s 2.

[12] Ibid at s. 11.2.

[13] Ibid at s. 2.

[14] Ibid at s. 2.

[15] Ibid at s. 5.2. 

[16] Ibid at 5.13.

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