2

Adoptive Kinship and Belonging1

---

In 1949 grandparents on a Saskatchewan First Nations reserve wrote to the provincial Department of Social Welfare to explore the possibility of adopting four grandchildren, ranging in age from eight to fifteen.² Following their daughter’s death in 1941, the family had followed the proper channels in order to adopt the children and have them enrolled as band members. In 1942 the Indian band council passed a resolution accepting the children. After forwarding the changes to his supervisor, the Indian agent received the following: “In reply, I am returning the signed Resolution to you as I am fully aware of the stand the department will take in this matter, that is they will be against the admission of these children because their mother married an outsider and the children are not considered as Indian under the interpretation of the Indian Act, I am not submitting this to Ottawa.”³

The admission was not approved, and the children remained in a state of legal limbo on reserve, cared for by relatives. In 1949, when the family attempted to secure the children’s adoption through the Department of Social Services, they were again denied, on the basis of Indian Act provisions.

While supportive of the inter-family adoption, the social worker involved was confronted by the federal Indian Affairs Branch’s legalistic interpretation of the children’s situation. In her letter of reply, she pointed out that Indian Act legislation contradicted child welfare practice that attempted to ensure the legal and social protection of children: “The children are receiving good care in the respective homes and the younger ones at least would have no recollection of any other home. It would be desirable to give them security of adoption if it is possible.”4 The Indian agent likewise supported the adoption. However, the reply to this request was consistent with the Indian Affairs Branch position that rigidly enforced the Indian Act membership provisions: “For your information I should point out that, generally speaking, I am not much in favour of the adoption by Indians of non-treaty children, as we run into many different kinds of difficulty with regard to education medical cost, etc., and in this particular case, it would appear to me that our department is expected to be saddled with the responsibility of three children while their father is alive and apparently able to re-marry and support a second family.”⁵

The Indian agent and social worker acknowledged the children’s relationship with their community and kin, but department policy was clear that no white people (their terminology) were to be admitted to the band membership. The Indian agent was chastised for his role in advocating the adoption of the children. The director reminded him, “You are, surely, aware that it is the policy of this branch to not admit any person of white status to Indian membership and as adoption would not change the status of the children they could not be admitted to membership and should not be permitted to reside on reserve.”⁶ Fortunately, despite the intended policy to remove the children and relocate them, they remained on the reserve among their kin.

The persistence of the children’s grandparents and community ensured that children in this case managed to remain with their kin. However, with the 1951 revisions to the Indian Act, Indigenous children increasingly left the care of family. In Saskatchewan, Indigenous transracial adoption, or the adoption of Saskatchewan’s First Nations, Métis, and non-status children permanently into Euro-Canadian families, dramatically increased by the 1970s. The Adopt Indian and Métis ad campaign focused on children apprehended by social workers with Saskatchewan’s Department of Social Welfare and Rehabilitation who had become permanent wards. The case above foreshadows many of the changes that gave rise to Indigenous transracial adoption in the 1960s and 1970s. First, the gendered Indian Act status provisions created legal barriers between families who sought to fulfil responsibilities for child caring and support. Without status, women and children were unable to return to their communities in the event of a death or separation with their spouse. Indigenous children of mothers who’d lost status could not regain their status through adoption or live with relatives on reserve. Second, the vexing jurisdictional ambiguity of Indigenous children is evident. Child welfare was a provincial responsibility, while “Indians and lands reserved for Indians” fell under federal jurisdiction. Provincial child welfare policy and legislation and the Indian policy, each with differing goals, remained at odds and unresolved from 1944 to 1984. Finally, the bonds of family and belonging among Indigenous peoples, expressed through marriage, adoption, and child caring, faced a new type of attack as provincial laws became applicable to Indian people after 1951, replacing community sanction with social worker professionals, and provincial adoption law.

Adoption in Indigenous societies has created familial relations where there had been none before, ensuring that family lineages continued, collective memories were passed down, children were cared for, and strangers were transformed into kin. More than a method of providing childless couples with the opportunity to parent, or orphaned children with the security of a permanent home, Indigenous adoption created and perpetuated Indigenous kinship systems. Cree and Métis people shared the belief that kinship is of central importance for individual and collective identity and is inseparable from land, home, community, or family.7 Adoption in Anishinaabe citizenship orders is a family-making practice that “seeks to continually renew the nation indefinitely into the future.”⁸

Adoption served several functions in Prairies Indigenous societies. It ensured vulnerable members were provided with care through familial relationships in the case of abandoned or orphaned children. It was used to replace children who had been lost through illness or in battle. In addition, it could fulfil political goals such as securing peace between warring groups. In each case, adoption enlarged the kinship circle, enabling individuals and groups to secure material and affective support. Poundmaker’s adoption illustrates the multiplicity of functions that Indigenous adoption supplied. In 1873 Blackfoot Chief Crowfoot adopted a Cree young man named Poundmaker. One of Crowfoot’s wives pled with the chief to adopt Poundmaker into their family after seeing how he resembled her recently deceased son. Upon being adopted, Poundmaker acquired a new Blackfoot name, wealth, resources, and large Blackfoot family. In his Cree tribe, he also was given special status because of his new relationship with the powerful chief and former enemy.9 The young Cree warrior would eventually become an influential Cree chief and vocal critic of the Canadian government Indian policy. The adoption benefitted Poundmaker personally and western First Nations as a whole. Anthropologist Mary Rogers-Black observed in her work among the Swampy Cree, “Sometimes these adoptions took place within the context of sustained trading and merger relations, but they often occurred in relations dominated by hostilities.”¹⁰ In this case, adoption came at the insistence of Crowfoot’s wife, suggesting that women played an important function in adoption. Through adoption, Poundmaker was integrated into Crowfoot’s kinship and social networks and was a recognized member of both Cree and Blackfoot societies.

Ethnographer David Mandelbaum observed adoption while working among the Cree in 1934 and 1935. The Indigenous practice of adopting an individual who resembled a lost relative was still in effect. His informant Fine-Day had adopted a young man from another reserve to replace his eldest son, who had passed away. “I took a man from Pelican Lake for a son because he resembles my eldest boy who is dead. He comes here every once in a while and I generally have a horse for him. Sometimes he brings me moose hides and meat in the winter. When I first took him for a son, I told him and gave him a horse. I didn’t expect anything in return. If he is poor he doesn’t have to give me anything. I am getting old and cannot do everything for myself. When I built that stable he helped me.”¹¹

Parent–child relationships entailed more than sentimental attachments. Obligations for care and assistance in times of need were created through adoption, since the family was responsible for providing for needy loved ones in the absence of alternative caring facilities. Elderly people were also adopted if their children had died. Mandelbaum also observed that when an elderly couple had no adult children to assist them, the chief took them to his house to care for them and treated them as his parents.¹²

Anthropologists and Indigenous scholars point to the importance of kinship as an organizing category within Indigenous communities.¹³ As anthropologist Raymond DeMallie stated, “The kinship system itself provided the foundation for social unity and moral order. The norms of kinship were the most basic cultural structures patterning the social system; they formed a network that potentially embraced all members of society and related them as well to the sacred powers of the world at large.”14 Whereas children and adults have been made kin in Indigenous societies as a method to create obligations and relationships in pre- and post-contact periods, adoption in North American society is viewed as a legal parent–child relationship meant to approximate the biological nuclear family.¹⁵

Adoption expresses the values of Indigenous kinship, called wáhkôhtowin in Cree, or Inewedensowen in Saulteaux.¹⁶ The Indigenous world view draws its inspiration from the interconnectedness expressed through the familial relationship.¹⁷ Kinship embodied the obligations and responsibilities that both describe and prescribe proper relations between kin and non-kin. Métis scholar Brenda Macdougall explains, “The Métis family structure that emerged in the northwest was rooted in the history and culture of the Cree and Dene progenitors, and therefore in a worldview that privileged relatedness to land, people (living, ancestral, and those to come), the spirit world, and creatures inhabiting the space. In short, this worldview, wahcootowin, is predicated upon a specific Indigenous notion and definition of family as a broadly conceived sense of relatedness with all beings, human and non-human, living and dead, physical and spiritual.”¹⁸

As such, belonging in the complex web of expanding relationships entailed obligations for support, knowledge of the protocols, the passing down of community memories, teachings, and ensuring the transmission from generation to generation. Cree scholar Neal McLeod states, “Kinship, wáhkôhtowin, grounds the collective narrative memory within the nehiyawiwin [Cree people].”¹⁹

Brenda Macdougall’s history of the ethnogenesis of the Métis community at Île à la Crosse reconstructs the methods by which the kinship system was expanded. Adoption was an important element in the operation of wáhkôhtowin. Expanding the boundaries of family by bringing additional people into the group increased the total number of relatives an individual could look to for support.²⁰ Macdougall observed, “Adoption of young children by other family members, particularly after the death of their biological parents, was an important social institution that ensured the perpetuation of ‘wahcootowin’ because it allowed a family to survive death.”²¹ Adoptions were public and private displays of familial behaviours and beliefs. Macdougall found instances of interfamily adoption from scrip applications, but primarily adoptions of children by grandparents. Adoption of grandchildren not only provided continuity for children who’d lost their parents, but was also a benefit to the older person who passed down “wahcootowin” through sharing memories, protocols, and lifeways with children.22

Gender and Family Life in Cree Métis Saskatchewan

Oral histories collected from Indigenous elders in Saskatchewan about experiences and cultural beliefs about gender and reproduction indicate that there was a period of transition between the 1930s and the 1950s.²³ While older marriage traditions remained operative in the 1950s, Christian churches and residential schools had begun to influence how marriage was understood and lived. Marriage was ideally lifelong with one partner. However, while infrequent, divorce and separation could take place if the couple were incompatible. One partner could simply leave. After marriage, young women continued to be mentored by older women.²⁴ Saulteaux men would come and live with the woman’s family for one year after the marriage, hunting and trapping for their in-laws. As Kim Anderson has related from oral histories with Prairie elders, “Marriage was as much about strengthening the female bonds of kinship and family as it was about a union between a man and a woman.”²⁵ Both matrilocal and patrilocal arrangements have been recorded among the Cree, Anishinaabe, and Métis. When young women moved in with their husband’s family they continued to be under the tutelage of mothers-in-law. Older women were authority figures in the households, with young women entering into a circle of women’s kinship.

Indigenous women-centred approaches toward birth and reproduction continued to be practised openly from the 1930s until the 1950s, after which Western male doctors took over pregnancy, birth, and postpartum care.²⁶ Previously, women in the community had managed these aspects of health. The midwives were older women who were highly regarded in their communities, as Anderson again points out: “Their significant role in catching incoming life and managing a transition into community is a demonstration of a uniquely feminine power, a power that allowed women to be a conduit between the spirit and earthly worlds.”27 The declining opportunity for older women to play a role in birthing practices likely altered cultural and community relationships based on generational and gendered roles.

Likewise, family planning was a community affair, and older women, often midwives, sought to help young women of childbearing age manage fertility so that they could be strong to care for their children. Older women cared for new mothers who became weak after childbirth, preparing medicines for them until they were strong enough to have the next child. It was widely understood that a mother’s death would harm her children, and communities sought to prevent that as best they could. Indigenous families looked after the health of their members by planning for births on a seasonal basis, ideally having babies born in the temperate months of May and June, rather than the harsh winter months when food was scarce and frigid temperatures made survival difficult. Like many cultural adaptations to the harsh subarctic climate faced by Prairie Indigenous peoples, “family planning was undertaken to ensure the survival of the people.”²⁸

The distinctive cultural practices and gender relations in Indigenous societies have been used to justify coercion and assimilation. The greater freedom of women and children threatened Euro-Canadian definitions of the nuclear family. This level of coercion was couched in the language of protection and linked to the national body.²⁹ Historian Joan Sangster observed in her study of women’s incarceration in Ontario, “The creation of moral families, based on Western (Anglo) middle-class notions of sexual purity, marital monogamy, and distinct gender roles of the female homemaker and male breadwinner was an important means of creating moral and responsible citizens, the ‘bedrock of the nation,’ as legal authorities never tired of saying.”³⁰ The law has been the method by which women and gendered norms have been colonized in Indigenous societies. Gendering Indian status and political participation that replicate Euro-Canadian societies has severed female kinship circles among women. The impact of these laws made women and children vulnerable to poverty and abuse.³¹

As in earlier periods, Indigenous women and communities responded in a variety of ways to attempts to realign Indigenous kinship. The multiplicity of responses suggests that Indigenous peoples have interpreted the opportunities afforded by law, policy, legislation, and social welfare services on the basis of perceived advantages and historical experiences. In all cultures, kinship is part of the social and cultural management of reproduction and is interwoven with gender.32 The persistence into contemporary times of Indigenous adoption ceremonies, and Indigenous resistance to modern transracial adoption policies suggests the central importance and contested nature of kinship to the narrative of colonial relations.³³

The Emergence of the Euro-Canadian Adoption Paradigm

According to American anthropologist David Schneider, the underlying and unspoken basis of Euro-American kinship is predicated on what he terms “shared biogenetic substance,” or the blood relationship, and is unique to European and North American cultures. There are two aspects to the kinship system: “the order of nature,” meaning the reproduction of the biological family, and “the order of law,” or the creation of rules, regulations, and traditions, such as adoption and marriage.³⁴ North American kinship is also distinctive for its “common sense” belief in the superiority of the ideal nuclear family: man, woman, and children, which is believed to have been formed according to the laws of nature and been given legal sanction.³⁵ In viewing transracial adoption cross-culturally through the lens of kinship, this chapter traces the origins of Euro-Canadian child removal policies alongside the Indigenous people’s participation in remaking adoption to conform to their own cultural expression of kinship.

For Euro-Canadian settler populations, adoption was a New World development that reflected an optimistic belief in the power of the environment to shape individuals and the role of the family to nurture future citizens. Like European settlers who left behind pasts and kinship connections, moving to their adopted countries for a brighter future, infant adoption likewise offered the promise of new beginnings for both unwed mothers and orphaned or illegitimate children.³⁶ Massachusetts had the first recorded reference to adoption as the legal transfer of parental rights in 1851.³⁷ This law has been considered a watershed in the history of American family and society as well as a model for future adoption laws. The parent–child relationship was no longer considered strictly defined by blood ties.38 Judges utilized the “best interests of the child standard” to evaluate whether parents were “fit and proper.”³⁹ New Brunswick enacted the first adoption law Canada in 1873, but Saskatchewan did not pass adoption legislation until 1922. If children needed care, few families used legal adoption to formalize kinship prior to the 1950s. Beyond being prohibitively complicated and expensive, many other methods were available, including informal adoption, orphanages, foster homes, and boarding schools, to name a few.⁴⁰

North American adoption emerged out of early twentieth-century reform movements, but rose to prominence only in the period following the Second World War when the idealized nuclear family was widely promulgated by psychologists and social workers.⁴¹ Prior to the advent of professional social workers, late nineteenth-century Protestant benevolent societies believed in keeping white mothers with their infants. These reformists glorified biological motherhood and focused their efforts on keeping families together, and unwed mothers with their children.⁴² In part, changing definitions of good motherhood contributed to the increasing popularity of adoption, but also changes in government policy. The rise of the maternalist welfare state and provision of mothers’ allowances enabled financially strapped women to parent children, reducing the necessity of relinquishing children when male breadwinners left through death and desertion.⁴³ Direct state financial support to mothers reduced the likelihood that children would be institutionalized or adopted.

Prior to the First World War, child welfare organizations rarely recommended children for adoption, since the majority continued to believe that personality, intelligence, criminal tendencies, feeblemindedness, and promiscuity were inherited. These beliefs were supported by law and science of the times.⁴⁴ Likewise, adoption was considered an unappealing option for childless families who feared biological kin may return to retrieve youngsters, and to a lesser extent, had eugenic fears over the possibility of children inheriting their parents’ “tainted blood.”⁴⁵ Thus, in the early North American adoption era, adoptive children were doubly burdened, first socially because of illegitimacy, and second medically through being perceived as defective due to eugenic beliefs. To reflect the triumph of adoption as a new beginning and a major development in the history of “modern adoption,” laws were passed that removed the term illegitimate from the child’s birth certificate and issued a new name and birth certificate.

Three conditions altered the role of North American adoption in family making. First, the recession of eugenic thinking after the Second World War; second, the rapid increase in out-of-wedlock births; and finally, increased interest by potential adoptive parents.46 To reduce the perceived risks inherent in accepting unrelated kin, professional social workers crafted policies and procedures to ensure safer, legal adoptions. Early adoption was meant primarily for childless white families seeking to adopt white children, and the matching of class, appearance, and intelligence enabled adoption to mirror the natural family. Social workers developed a scientific attitude toward matching, employing intelligence testing and taking detailed case histories of each individual involved in order to ensure the best possible outcome. This legacy of eugenics movement reflected ongoing fears of unknown hereditary conditions lurking in children’s backgrounds.

The struggle to professionalize adoption reflected the struggle to professionalize social work in general, and over the first part of the twentieth century, commercial and benevolent adoptions were replaced by professional adoptions designed using exacting standards and regularized procedures.⁴⁷ While each step taken in professionalizing adoption brought it closer in appearance to the biological family, society failed to accept the legitimacy of the adoptive family on the same footing as the biological family. Laws passed intended to benefit the adoptive family against the power of blood ties and provide children an opportunity for social mobility.⁴⁸ In this effort, “social workers attempted to create adoptive families that not only mirrored biological families, but also reflected an idealized version of them.”⁴⁹

Social workers who had worked to make adoption more scientific did so in an attempt to overcome the Euro-American cultural belief that adoptive bonds between children and parents were inferior to biological relationships.⁵⁰ Provincial adoption law enshrined the adoptive relation as being as strong as a biological connection. Courts issued adoptive children new birth certificates and ensured that adoptive children received the same inheritance and legal rights as a natural child. Likewise, records of birth parents were sealed to ensure privacy for all involved.⁵¹ In both Canada and the United States, scientific adoption promised to overcome disadvantages of birth, provide social mobility to illegitimate children, and importantly provide childless couples with the opportunity to parent, while eliminating the uncertainly that birth families might attempt to retrieve youngsters once their situations improved. Adoption offered permanence and stability in a hand-picked, “normal” family chosen especially for their adherence to the ideal. Social workers tried to replicate the biological family as well as possible by matching intelligence, appearance, and economic status. The legal kinship ties created through adoption, up to the emergence of transracial adoption, consistently came closer and closer to mirroring the “normal” Euro-Canadian biologically based nuclear family through both legislation and policy directives. For all intents and purposes, adopted children became legally similar to a child born to the adopting parents in lawful wedlock.52

Indigenous Adoption and Euro-Canadian Law

Long before adoption gained widespread acceptance and popularity in Euro-Canadian and Euro-American society, Indigenous peoples used tradition and law for the care of needy youngsters. Examples of legal adoption from the Indian Affairs records in the first part of the twentieth century illustrate the formalization of kinship relations in the absence of oversight by professional social workers. Because the Department of Indian Affairs had control over matters of Indian status, and adoption entailed a change in legal status and family name, or perhaps band membership, families needed to obtain departmental permission before securing adoptions. In each of the following cases, the department had no objection to the parent-initiated adoptions. The adoption process followed a common pattern. First, the surviving parent selected the adopting family for the children, after which the band leadership was consulted. It appears that the majority of the adoptions took place between relatives, but it is not always clear. The primary reason that parents sought adoption for their children prior to 1940 was the death of either mother or father. Subsequently the band leaders of the adoptive family met and agreed whether to accept the child as a new member.

Ottawa’s policy for adoptions between legally Indian people took shape in these early cases, which predate official adoption laws in some Canadian provinces.⁵³ Assistant Deputy and Secretary in the Department of Indian Affairs J.D. McLean wrote to Indian Agent Walton McLean on 24 July 1913, “Secure from Indian agents the financial standing, and general character of persons who agree to adopt the children. If the recommendations are favorable the matter must be laid before the respective Indian bands and a resolution obtained in each case to accept the children into membership. It should be made clear in each case that amount at the children’s credit in the Capital funds of the Alnwick band will be transferred to the band or bands into which they are admitted provided the Department approves the transfers.”54

On 28 November 1913 Indian Agent Walton McLean informed his superior in Ottawa that he had obtained good reports of the adopting families, meaning they had “satisfactory characters and financial standing” enabling them to care for the children. He recommended the adoption be carried out with the approval of the bands into which the children would be transferred. Through this case, the elements of “modern adoption” intermingle with Anishinaabe adoption.⁵⁵ The children’s mother had accessed her kinship networks with their protocol of obligations to seek out substitute care. The leadership of both communities was consulted and agreed to the adoptions. The language of the agreement clearly outlines the new relationship between the adoptive family and the children, removing the obligations for care from the children’s mother. The community involvement and oversight ensure that each of the parties would fulfil their responsibilities set out through the adoption for the duration of the child’s life.

Residential schools and adoption co-existed for Indigenous families who required additional support. Indigenous children who were too small to place in residential schools could be placed for adoption. Peter S—— applied to have his young son adopted after the child’s mother died in childbirth. The four-year-old child was too young to be placed in residential school like his older siblings, and his father, Peter, had found an adoptive family that would be willing to care for him. It is unclear from the archival record whether Mrs W—— was a relative of his or of his deceased wife. Mrs Jimmy W—— of the Enoch Band was found to be an acceptable choice as adoptive mother by the Department of Indian Affairs, but prior to securing the adoption, the band first had to accept the transfer of membership from the Saddle Lake Band to the Enoch Band.⁵⁶ In response, the department recognized the band’s jurisdiction over membership by deferring to their decision: “If Enoch’s band passes a resolution agreeing to the transfer of the boy from Blue Quill’s Band to Enoch’s band, no objection will be made by the Department, providing that the father, Peter S—— agrees in writing to the transfer and adoption of the boy by Mrs Jimmy W.”57 From the written archival evidence, it appears that parents exercise greater autonomy over children than in later periods, and band jurisdiction over members demonstrates some degree of self-determination.

When potential adoptions challenged the legal regime established by the Indian Act, kinship systems came under attack. The case of an attempted Indigenous adoption in the same period draws attention to the racialized and gendered regime established by the Indian Act as it played out in the lives of women and children. In Saskatchewan on 12 July 1918, Robert B—— of James Smith Reserve sought permission from the department to adopt the children of a widow, Ellen S——, known formerly as Elena B——, of the Okemases Band. She had married Thomas S——, an Englishman, and as a result, lost her Indian status and had been unable to pass Indian status along to her children. In 1909 Mr S—— enlisted with the Canadian Expeditionary Force in Prince Albert but died before going overseas, leaving a widow and three children. Mrs S——, while in Prince Albert, sought to find families to place her children. Mr B——, a young man married to Eliza S——, had been childless but had adopted the illegitimate child of his wife’s sister. In reply to this request, an official rejected the adoption: “I do not recommend allowing B—— to adopt the S—— children and bring them on the reserve as they are non-treaty. If Mrs S—— will not keep them, the department of neglected children for the province of Saskatchewan should look after them. I beg to enquire whether the Department can forbid Indians adopting half-breeds, or white children and bringing them on reserve. I beg to ask for instructions in the case.”⁵⁸ While officials acknowledged that the adoption was a private decision to be made between both parties, realistically they felt that there was no possibility that the adoption could work since the children would not be allowed to live on the reserve with their adoptive family. “I beg to state that the Department is opposed to Indians adopting halfbreeds or white children and bringing them into the reserve and cannot approve of the agreement submitted and sanction the adoption of the children, as they would be brought on the reserve.”⁵⁹ The mother, Mrs S——, had lost her Indian status with her marriage to a non-Indian and been forced to leave her reserve and sever her kinship ties. One difficulty for women and children that came as a result of the Indian Act was that none of her kin who retained their Indian status would be able to adopt her children. Since her husband had come from England, it was unlikely she could look to his family for assistance. Kinship in North American settler society, viewed as the blood-based nuclear family, proved unstable when trouble arose. When this broke down through death or desertion, the state and churches stepped in to supply the needed care for children and vulnerable mothers. Settler society, particularly in areas recently settled, such as Saskatchewan and Alberta, lacked the deeply rooted extended families and institutions that more established areas would have. Indigenous women and children who’d lost Indian status faced few options outside of their kinship networks.60

The Frances T—— adoption case reveals the illogic of the racial and gendered definitions that define who is and who is not an Indian through the Indian Act, as well as the conflicts between federal and provincial legal regimes over the care of children. ⁶¹ In this potentially precedent-setting legal case, the Indian Affairs Branch attempted to set aside an order of adoption that had been granted by a provincial court judge in Alberta. Two years after the original adoption, the Indian Affairs Branch secured the assistance of lawyer, C.E. Gariepy of Edmonton Alberta, to overturn the adoption of Frances G. T—— by Joseph C—— and wife on 15 February 1937. Frances T——, a young mixed-ancestry child with a Métis mother and white father, had been legally adopted by an Indian couple of the Fort Chipewyan Band in Alberta.

On 21 February 1939 the Indian Affairs Branch, under the Department of Mines and Resources, submitted a request to the Department of Justice that an attorney be obtained to overturn an adoption order for Frances G. T—— in Alberta on 15 February 1937. At issue was the child’s lack of Indian status prior to her adoption, and subsequent confusion about her legal status after her adoption by a status Indian couple. The department solicitor raised the issue first as a test case to determine whether Indian status could be conferred through adoption. Through Indian Act legislation, non-Indian women could legally become Indian through marriage; thus, it was probable that legal adoption could confer Indian status to children. The question put forward by the Indian Affairs Branch was whether provincial child welfare legislation could do the same. With the increasing acceptance of adoption across Canada as well as longstanding customary practice in Indigenous society, it was probable that Indian families would seek to adopt children without Indian status, thereby increasing federal obligations. Unlike earlier examples, the Indian Affairs Branch had not been consulted on this matter and thus was unable to prevent the adoption from taking place. There was concern that since no explicit legislation barred adopted children from Indian status, adoption could potentially reverse the goals of reducing the Indian population in Canada. This development proved troublesome to the Branch, whose mandate for over half a century had been to reduce the number of Indian people under its control. To accept this adoption could potentially set a precedent that non-Indian children could become Indians through adoption in defiance of the Indian Act’s logic of elimination. The department sought to set aside the adoption and reassert its control over Indian status.

The Branch obtained the services of Edouard Gariepy, an Edmonton lawyer, to look into having the adoption order overturned on the basis of section 30 of the Indian Act, to determine if adoption gave the child a claim against the trust fund administered by the Crown.62 Gariepy replied that he would give the matter consideration and consult with the provincial attorney general about the matter. Since considerable time had elapsed since the adoption was formalized, the Attorney General did not believe it could be successful. However, Gariepy thought that the order could be overturned on the basis of the inability of the ward (in this case, Mr.——, as an “Indian” was considered a ward) to take on contractual obligations without the written consent of the superintendent general, based on sections 34 (2) and 90 (2) of the Indian Act. In addition, Gariepy inserted his personal opinion that in the interest of the child herself, she, “only being [of] limited Indian blood, should not remain and be raised in the Indian fashion.”⁶³ He agreed to pursue the matter on the basis of the absence of department consent to the adoption.

At issue were deeper matters of blood-based understandings of race and degeneration. The possibility that adoption could confer Indian status on non-Indian children disturbed white officials, who were perhaps well aware of the poor state of care they offered their Indian charges. To potentially allow a white child to suffer the indignities of Indian status and all that entailed challenged the binary thinking that enabled department officials, and the public at large, to justify and rationalize poverty and poor health on Indian reserves across the country. Also at issue was who had control over the matter. Indian people utilizing provincial legislation could potentially restore members lost to enfranchisement legislation, calling into question the gendered and racialized parameters used to restrict band membership and Indian status.

The background information provided for Frances reveals a complex Métis identity that officials continually sought to discipline into manageable Euro-Canadian definitions of either Indian or white. Frances’s mother, Jennie (LaR) T—— had been born in 1896 in Red Deer, Alberta, to Métis parents. Her first marriage in 1914 was to Métis Henry N——, who was killed in action overseas. In August 1915 she married William T——, a white man who died in 1927. Frances was born in 1927, and in June 1935 she was left in the care of Alex A——, chief of the Cree Band of Riviere Que Barre, Alberta, after which the children came to the attention of child welfare officials. The case file on the adoption states, “Mrs C at this point states she arranged to take the child in question from Alex A——, her brother, and got the child June 1935. Through questioning, Gertrude (a sister to Frances) T—— states the mother was of Indian blood and her father a white man, further that she believes the mother was a relation to Chief Harry C—— who now resides at Anzac.”64 This genealogy of relations alludes to some type of family relationship between Frances’s Métis mother and the C—— family, although it remains unclear.

D.B. Mackenzie, the provincial attorney general for Alberta, refused to consider setting the order of adoption aside. In reply to the federal department he stated, “From information obtained in that department I gather that no great hardship will be done to anyone if the adoption is now ratified by the proper official of the Indian Department.”⁶⁵ He cited past practice of allowing adoption of half-Indian children and asked officials to leave Frances where she had happily lived for two years.⁶⁶ Unlike federal officials, Mackenzie appealed to common decency and importance of the familial relationship that had been established between the child and parents.

The ongoing bureaucratic fascination with the race of Frances T—— race and their refusal to concede her adoption was legitimate reveal a preoccupation with patrilineal descent and fears of racial degeneration. After this mild rebuke by Mackenzie, officials at the Department of Indian Affairs stated emphatically, “Frances T—— is not a half-breed but a white girl, and to recognize the adoption of a white child by Indians and the consequent Indian status of such child, would be out of the question from the view point of this branch.”67 In response, lawyer Gariepy countered, “For the purpose of the application, it was sufficient to show that this child was not the daughter of Indian parents, that she could not be considered Indian.”⁶⁸ However, Gariepy was not as paranoid about racial implications in his grasp of the matter: “As a matter of fact from inquiries made by the Indian Agent and the RCMP, it is clear that she is the daughter of a half-breed mother and a white father. This could make her a quarter breed Indian.”⁶⁹ Strictly on the basis of objective facts, he felt the adoption unwise: “To accept the adoption order, as to for instance that fact the C—— couple are treaty Indians, are destitute etc., would be a very bad precedent, as apparently the Department here to do child welfare would be very pleased to have Indian affairs branch take care of any half breed or child being part white and part half breed.”⁷⁰ In addition to racial fears, adoption provided the opportunity to find families for problematic mixed-race children; the provincial departments struggled to find homes for children within white society.

Local doctor P.W. Head of Fort Chipewyan was familiar with the First Nations people of the area, and on 26 May 1939 he echoed the fears of the department officials: “This girl who has never known much of a proper home is taken fairly well to the Indian mode of life, but I do not consider it a suitable life for her as her views are very likely to change as she gets older. Moreover the aspects of schooling and general welfare will diminish rather than increase with the ageing of her foster parents. Personally I do not like the idea of a three quarter white child being made a treaty Indian.”⁷¹ Like the case of unredeemed captive Eunice Williams, adopted into a Mohawk family at Kahnawake in 1704, Frances represented reverse boundary crossing that troubled the settler colonial imagination. At the age of seven after a raid on Deerfield, Massachusetts, Eunice Williams was marched north to Canada and for all intents and purposes became Mohawk, speaking the language to the point of forgetting English, marrying, and having children. Despite attempts to induce her to return, she refused to go back to her Anglo-American family and remained an unredeemed captive.⁷² As Sarah Carter has found regarding sensational captivity narratives in the early settlement period, “Assumptions about the ‘wretched fate’ that awaited these girls once they grew up both promoted and confirmed the negative images of Indigenous women that were firmly embellished in the colonial imagination.”73

After lawyer Edouard Gariepy was unable to have the order overturned, the department referred the matter to the Deputy Minister of Justice E. Miall for his legal opinion, who provided the final word. On 19 July 1940, on the basis of a reading of the Indian Act, child welfare law, and how the term child has been defined in past cases, Miall stated clearly and unequivocally that Indian status could be created through adoption.⁷⁴ Deputy Minister of Justice Miall looked to the Indian Act to answer the questions of status, since section 2(d)(ii) the Indian Act defined Indian as the child of “any male person of Indian blood reputed to belong to a particular band.”⁷⁵ Since at the time the Act did not cover the issue of adoption, it was then necessary to define the meaning of child. He then looked to both provincial and federal legislation. The Alberta Adoption of Infants Act, section 45(i), stated, “An order of adoption shall b) make such child, for the purposes of the custody of the person and filial and paternal duties and rights, to all intents and purposes the child of the adopting parent; c) give the child the same rights to claim for nurture, maintenance and education upon his adopting parent that he would have were the adopting parent his natural parent.”⁷⁶ On the basis of the legally established parent–child relationship created through adoption legislation, Miall concluded that section 45(10) provides that “a person who has been adopted in accordance with the provisions of this Part shall, upon the intestacy of an adopting parent, take the same share of property which the adopting parent could dispose of by will as he would have taken if born to such parent in lawful wedlock and he shall stand, in regard to the legal descendants but to other kindred of such adopting parent, in the same position as if he had been born to him.”⁷⁷

Thus, on the basis of a reading of both the definition of Indian in the Indian Act and child in the Alberta Adoption of Infants Act, Frances had become an Indian through the powerfully worded legal protections that adoption legislation defined.

Adoption proved to be a unique mechanism for providing vulnerable children with social and legal belonging, and potentially affirmed Indigenous kinship systems. Miall was also careful to indicate, “Frances Gertrude T—— is to be considered as the child of Joseph and Angelique C – I surmise that the interest of the IAB is in the status of this girl has to do with the distribution of moneys or potential inheritance within the Band of an interest in the Band property and is not directed to the proportion of Indian blood. By section 14 an Indian woman, marrying a person other than an Indian, ceases in every respect within the meaning of the Act to be an Indian, and I am therefore not putting forward any suggestion that the girl’s status as an Indian derives otherwise than from the adoption.”78

Miall pointed out the relative unimportance of race and Indian blood quantum in the past administration of the Act by referring to Treaty 8, signed in 1899 with the Chipewyan Indians and the promise to pay every family head five dollars. He inferred that this clause had contemporary significance to the Indian family: “I suggest that effect can only be given to this promise if payment be made to the head of the family in respect of each person who, in the eyes of the law, is a member of this family. I submit, therefore, that the effect of the adoption is to confer full Indian status upon Frances Gertrude T——, the child in question.”⁷⁹ Using the text of Treaty 8, Miall defined the Indian family as being made up of all members who were legally recognized as under the authority of the head of the family. Thus, race played no role in determining who became an “Indian” under this legal definition utilized by the treaty. As such, adoption, by conferring a legal parent–child relationship, fell under the same category. Despite the clear legal argument made by the deputy minister, the department refused to recognize the logic of his argument, which essentially rendered the gendered colonizing (il)logic of the Indian Act and the Branch null and void when he determined that neither blood nor race, but rather Indigenous kinship, played a role in deciding who qualified as Indian.⁸⁰

Despite the apparent hegemony of the Indian Act, this early example may indicate that indigenization of adoption laws began to emerge as Indian people utilized the protections of legal adoption offered by provincial legislation to support kinship obligations in the face of oppressive control by the department, day-to-day struggles of poverty and isolation, illness, and death. However, Indian status conferred by adoption posed the risk of flaunting the irrational nature of the status logics in the legal construction of Indian identity while advancing Indigenous citizenship orders based on systems of Indigenous kinship rather than patriarchy. Closing this subversive adoption loophole maintained settler-colonial government control over Indian status, and tightening the grip on Indigenous communities and families. In response, the branch sought to impose its own narrow definition of who could and could not qualify as Indian and to restrict the ability of Indian people to define adoption according to their own notions of family and kinship outside the legalized definition of Indian.

This case is significant in that it provides an early example of the tensions that emerged when federal attempts to reduce and legally eliminate Indian women and children conflicted with the provincial child welfare prerogative. The prerogative of social work practices and the developing provincial child welfare systems sought legislation and policies that were “in the best interests of the child,” and legal adoption attempted to ensure the permanent care of children in families. The conflict between provincial adoption laws and the federally defined Indian status as created by the Indian Act became more pronounced over time. This was especially true after the revisions to the Indian Act in 1951 made provincial laws applicable to Indian people on reserves and in cities, and explicitly racialized adoption to apply to “Indian” children only.81 Frances T——’s Indigenous adoption offers a counter-narrative of colonization on kinship, race, gender, and legal status. When looking at the communication between highly placed government bureaucrats about the case, one witnesses the primary objectives of the Indian Act: reducing the number of those who counted as “Indian,” minimizing the legal and financial responsibility for Indians, and ultimately eliminating “Indians” altogether.⁸² Officials furthered these objectives not only through restrictive laws designed to manage relations between Indian and non-Indian peoples, but also through the redefinition of “Indian child” in 1951.