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Thursday, September 19, 2019

How differently the Canadian government engages with Tribal Nations

Somehow the final passage ("royal assent") of this bill in Canada slipped our attention back in June. Initially, we saw it referred to as a "Canadian ICWA", but it seems fair to say that it doesn't quite achieve that level of protection for Native children and families. If nothing else, it illustrates just how differently the Canadian government engages with the tribal nations within its borders compared to the U.S.. We want to add a large caveat, which is that none of us are experts on Canadian law or child welfare.
However, those that are put together a really helpful publication which is available here, and is well worth your read (it made us think about if ICWA would get passing grades):
From the Jurisdiction section of the report:
Why We Give the Bill a ‘D’ on this:
IN A HISTORIC FIRST FOR CANADA, the Bill purports to recognize Indigenous peoples’ inherent jurisdiction. For example, section 8(a) of the Bill affirms “the rights and jurisdiction of Indigenous peoples in relation to child and family services”. This positively worded language is also noted in the Bill’s introduction and summary. Similarly, section 18(1) states that the “inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.” Section 18(2) affirms that this right includes the right to “provide for dispute resolution mechanisms.”
As there are no section 35 cases that recognize an inherent right of self-government for Indigenous Peoples or that have recognized an Aboriginal or Treaty right over child and family services law-making, this is a significant step forward.
This is not, however, a recognition of jurisdiction that removes all federal or provincial oversight, power or intervention. By recognizing jurisdiction over child and family services as a section 35 right, the federal government immediately re-asserts its power to unilaterally infringe or limit that right, a power upheld by court cases such as Sparrow. The legislation sets legal limits in terms of Indigenous laws being subject to Charter and Canadian Human Rights Act and the BIOC. It also sets practical limits in terms of the virtual necessity of negotiating coordination agreements with the federal and provincial governments, and in the glaring absence of any provisions for funding. At best, this could be interpreted as an acknowledgment of concurrent (or shared) jurisdiction, a matter on which Bill C-92 should be more clear.
***
Further, section 23 states Indigenous laws only authoritative if they can be applied in a way that “is not contrary to the best interests of the child.” As previously stated, Indigenous laws have upheld the best interests of Indigenous children for thousands of years. The concern about this limit is how the BIOC doctrine has been interpreted and applied by courts, non-Indigenous governments and decisions makers to apprehend Indigenous children and separate them from their families, communities and territories for the past 50 plus years.

Bill C-92, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families

by Kate Fort

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Indian Country is under attack. Native tribes and people are fighting hard for justice. There is need for legal assistance across Indian Country, and NARF is doing as much as we can. With your help, we have fought for 48 years and we continue to fight.

It is hard to understand the extent of the attacks on Indian Country. We are sending a short series of emails this month with a few examples of attacks that are happening across Indian Country and how we are standing firm for justice.

Today, we look at recent effort to undo laws put in place to protect Native American children and families. All children deserve to be raised by loving families and communities. In the 1970s, Congress realized that state agencies and courts were disproportionately removing American Indian and Alaska Native children from their families. Often these devastating removals were due to an inability or unwillingness to understand Native cultures, where family is defined broadly and raising children is a shared responsibility. To stop these destructive practices, Congress passed the Indian Child Welfare Act (ICWA).

After forty years, ICWA has proven to be largely successful and many states have passed their own ICWAs. This success, however, is now being challenged by large, well-financed opponents who are actively and aggressively seeking to undermine ICWA’s protections for Native children. We are seeing lawsuits across the United States that challenge ICWA’s protections. NARF is working with partners to defend the rights of Native children and families.

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