8

Confronting Cultural Genocide in the 1980s

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The increase in adoption has been viewed by Indian people as a form of assimilation and genocide, however the courts have attempted to negate them by ruling that an Indian child does not lose his-her status upon adoption. This however has not been acceptable to Indian people.

− Ovide Mercredi, 19811

On 14 September 1983 Gordon Dirks, Minister of Social Services in Saskatchewan, addressed the Peyakowak Committee in Regina: “I am today establishing a Ministerial Advisory Council consisting of experienced community individuals and experts in the area of child and family services. I shall be directing this council to hold public meetings and receive public opinion, and to review legislative and policy themes.”² Dirks was responding to calls from many segments of the community for a public inquiry into the death of a toddler in a Saskatchewan foster home and an examination of the general state of Indigenous child welfare in Saskatchewan. During the previous year, the Peyakowak Committee had been raising awareness about the high proportion of Native children in the care of Social Services. In addition, it had vocally questioned the quality of care provided by the Department of Social Services. The advisory council was an act of compromise between the Saskatchewan government and the Peyakowak Committee, who had called for a provincial inquiry along the lines of the inquiry that had taken place in Manitoba.3 During the meetings held in Saskatchewan’s three major cities, the council highlighted the views of many within the Indigenous community who were dissatisfied with the state of child welfare and adoption in the province. During the first part of the 1980s, a growing chorus of Canadian First Nations and Métis leaders and activists began to resist the logic of the child welfare system, joined by supportive members of the white academic community.⁴

Following the failure of the 1969 Liberal White Paper, attitudes toward Canada’s First People underwent a significant transformation. By 1980 tangible gains – legally and socially – were visible. The movement toward Indigenous self-government was strengthened in large measure by the protections afforded Indigenous rights in the Constitution Act, 1982, and a broadened definition of Indigenous peoples to include “Indian, Métis and Inuit.”⁵ This in turn led Indigenous leaders to consider the role of child-rearing in articulating and defining “existing Aboriginal rights.” As had been the case in the United States with the passage of the Indian Child Welfare Act, 1978, child placement decisions and the strengthening of the Indian family were fundamental areas Native American tribes sought to reclaim in the larger movement for political and social self-determination. From 1980 to 1984 the common sense business of transracial adoption and apprehension that had continued in Saskatchewan despite the Native Women’s Movement’s resistance and the Métis Society’s challenge came under attack, bolstered by the success of Indian people south of the border and the positive climate for human rights activism in Canada.

International, national, and local factors shaped the articulation of child welfare issues that became prominent in the public discussions surrounding Saskatchewan’s review of the Family Services Act. Native American activists and their supporters in the United States had recently scored a legal victory for Indian families that sent vibrations across the continent. Indian legal scholars in Canada immediately seized the possibilities afforded by the recently drafted national legislation in the United States entitled the Indian Child Welfare Act (1978) or ICWA, which gave tribal courts jurisdiction over the placement of Indian children. ICWA legislation provided Canadian scholars and First Nations with a framework for articulating a position on child welfare jurisdiction as part of the larger goal of self-government. The second force shaping the discussion in Saskatchewan was the national movement for self-government among Indigenous people in Canada and the subsequent inclusion of section 35 in the Constitution Act, 1982, recognizing and affirming Aboriginal rights. Simultaneously, there was growing awareness of Indian and Métis children removed from parents through provincial child welfare legislation. The inclusion of Indigenous peoples and Indigenous rights in the Constitution of Canada created an “uneasy and undefined relationship with the colonizing state.”6 Crafting a unified national strategy on child welfare was one area where Indian and Métis rights activists asserted their pre-existing rights. Last was the development of the Peyakowak.⁷ In Saskatchewan this diverse activist organization brought together Indigenous and non-Indigenous community members organized to challenge the power and legitimacy of the Department of Social Services. The discourse in Saskatchewan around transracial adoption reflected the intersection of local, national, and international knowledges shaped by the settler colonial historical context of Indigenous child removal policies.

Absent from discussion of child welfare and transracial adoption was any recognition of the gendered constraints experienced by Indigenous women or the impact of gendered policies affecting the Indigenous family. Adoption occupied a marginal space in the public hearings but was a primary concern for Indigenous leaders who sought control over Indian child welfare. Through looking at the published hearings from the ICWA, the printed report of the advisory council for the Family Services Act (1973), and the Indian Control of Indian Child Welfare document produced by the Federation of Saskatchewan Indian Nations (FSIN), transracial adoption came under fire, as Indian leaders demanded the right to define Indigenous kinship, adoption, and citizenship as an aspect of self-government.

Two publications drew the plight of Indigenous children to the attention of the academic and activist communities in Canada, providing irrefutable evidence for what Indigenous peoples had been claiming for decades. First, H. Philip Hepworth published Foster Care and Adoption in Canada in 1980, devoting a chapter to the anomalous situation facing Indian children in Canada, who were simultaneously underserved by child welfare services, yet over-represented in foster and adoption homes.⁸ Shortly thereafter, Patrick Johnston published Native Children and the Child Welfare System, scrutinizing Indian child welfare, province by province, and examining factors that contributed to the dismal record of providing welfare to children since 1951. Saskatchewan had the dubious distinction of the highest percentage of children in the care of social services and the Department of Northern Development. Between 1976 and 1981, Native children ranged between 62.8 and 63.8 per cent of all children in the care of social services in the province.9 Transracial adoption was given a prominent place in Johnston’s analysis because it was so problematic. For example in Saskatchewan in 1977, 91 per cent of Indian children were adopted by non-Indian families; by 1981 that figure had dropped to 80.5 per cent. But the percentages do not tell the whole story. The total number of children adopted in 1977 was seventy-eight; in 1980 it was eighty-three. In 1977 the number of status children in care was 573, and by 1980 it had risen to 789. As a percentage of the total status Indian population, in 1977, 14 per cent of Indian children in care were adopted, and in 1980 it was 11 per cent. As a percentage of the total outcome for Indian children who entered into the care of the Department of Social Services, Indian children often remained in foster care, but when adopted, primarily went into the homes of Euro-Canadians.

In Saskatchewan the struggle taking shape over control of Indian child welfare emerged in a political climate that was more receptive to the political activism of Indian people than ever before. The passage of the Indian Child Welfare Act (1978) in the United States, a major victory of Native American families, influenced how Indian and Métis leaders, as well as non-Indian scholars and activists, approached the political, cultural, and legal understanding of over-representation of Indigenous children in Saskatchewan’s child welfare system. The legislative approach to resolving the issues of child welfare, while an essential component for restoring Indigenous people’s rightful role in caring for their children, submerged other potentially liberating approaches offered by Indigenous women at this time. Undertaking a comparative history of this period offers one the opportunity to interrogate circuits of knowledge production, governing practices, and connections in the political rationalities that supported racial distinctions as well as worked to eliminate them.¹⁰

The Association on American Indian Affairs (AAIA) originated in 1922 as the Eastern Association on Indian Affairs to support the New Mexico Pueblo Indians. Made up of Euro-American members from New York, they lobbied in support of issues related to the well-being of tribes throughout the United States. William Byler was president of the AAIA from 1962 to 1980, the period in which the child welfare crisis came to light. As one member of the AAIA, Mr Ortiz, expressed it in 1973, “The Association had set as its major and immediate goal the comprehensive implementation of Indian self-determination in all its aspects…. American Indian people today are at a crossroads in their destiny; the Association stands ready to help insure that Indian people themselves ultimately determine that future.”11

In response to an Indian family from South Dakota who had their children illegally removed, the AAIA began to collect evidence to determine the extent of child removal practices in the United States.¹² Through a national survey utilizing the numbers provided by the BIA, the AAIA demonstrated that many Indian children were growing up in white foster and adoptive homes, or in faraway boarding schools. The AAIA became a driving force behind the politicization of transracial adoption and Indian child welfare in the United States in the 1970s. When inquiring further into this incident at Devil’s Lake Reservation in South Dakota, they discovered that one fourth of all this reservation’s children were living elsewhere. The tribal council strongly resisted the removal of children and invited the AAIA to assist in fighting this trend.

In addition, the AAIA was asked to conduct a statistical survey for the American Indian Policy Review Commission taking place in the United States in 1968 to determine the number of Indian children living out of their homes across the nation. Their report provided a state-by-state breakdown of the rates of children who had been apprehended and placed by social service agencies in non-Indian homes. The AAIA found that children were being removed from their families at rates far beyond their proportion of the population in many states across the continental United States and Alaska, where as many as 25–35 per cent of children had been removed.¹³ This removal included boarding schools, foster homes, adoptive homes, and other child-care institutions.¹⁴ The statistics were merely a cold and quantifiable launching for the tragic human story that was unfolding. Published by the AAIA in their Indian Family Defense, Native American people and experts began exploring the meaning and significance of those numbers.

To bring national attention to the Indian child welfare crisis, the Association on American Indian Affairs mobilized a wide range of supportive cross-disciplinary friends and published their findings in Indian Family Defense. Most critically, the organizing of the AAIA caught the attention of legislative aide Sherwin Broadhead, who had attended a child welfare strategy meeting sponsored by the association in January 1974.15 Senator James Abourezk (D-SD), chair of the Senate Subcommittee on Indian Affairs, invited the AAIA and Native American peoples to attend its meetings in Washington, DC, in April to provide testimony about the Indian child welfare crisis. Once there, Native American peoples had the opportunity share their experiences of suffering at the hands of the system(s) to the public record.

At the subcommittee hearings, Indian women told of the forceful removal of their children without reasonable grounds. One witness stated, “On many reservations the most feared person in the community is the welfare worker.”¹⁶ Another stated that when they saw the welfare worker, “the children ran into the rooms and hid under the bed.”¹⁷ Stories recounted by Native American peoples from across the United States highlighted the aggressively coercive actions of police and social workers. These remarks echoed similar stories of children being removed from communities to be placed in residential schools in other settler-colonial nations.¹⁸ One example from a former residential school survivor testified to the impact of removal and the commensurate powerlessness experienced by family members. She recalled, “The mothers and grandmothers cried and wept, as mine did, in helplessness and heartache. There was nothing, absolutely nothing they could do as women, to reverse the decision of the ‘Department.’”¹⁹ Indian people interpreted the action of police, social workers, and government officials as a continuation of the policies of assimilation pursued through the residential school system. As one submission to the Senate Select Committee stated, “In the past, it seems as though the public and private welfare agencies have operated on the premise that Indian children would have greatly benefited from the experience of growing up non-Indian. This premise has resulted in the abusive practices of removal of Indian children from their families, and has contributed to what many Indians and non-Indians have called ‘cultural genocide’ of Indian people and Tribes.”²⁰ The AAIA believed Indian children were removed from communities and families at a shockingly high rate in response to the unrealistic judgments of white middle-class social workers, lack of attention to due process, and the state of poverty caused by colonization.²¹

Biases against Indian families, combined with the concept of the pathologically unfit Indian mother, shaped responses to child neglect and Indigenous forms of child care. One research project reported by the AAIA gives an example that Indian people were denied preventative services on the basis of race. A study comparing white families and families of Indian ancestry who approached social agencies in Minnesota between 1956 and 1971 for aid for deteriorating family situations such as unemployment, strife, alcoholism, or spousal death or separation revealed that Indian families routinely had their children removed as a solution.22 A more appropriate response might have been counselling services, homemaking services, or financial assistance, such as white families received. Indian families ended up fragmented and dispersed.

Negative perceptions of Indigenous women and Indigenous gender relations have historically justified the coercive actions of the professionals working on behalf of the state, whether doctors or social workers.²³ Powerful pronouncements by middle-class medical professionals characterized Indigenous women as detrimental to the health and mortality of their children.²⁴ The Native American women who testified in front of the Senate Subcommittee recounted the coercive and incoherent actions of social workers. In one example, Cheryl Spider DeCoteau, a twenty-three-year-old member of the Sisseton-Wahpeton Sioux Tribe, had to defend the right to parent her children after they had been removed because she had left them with her mother. After the birth of her second child, welfare workers hounded her until they finally obtained her child for adoption.²⁵ Other examples contained in the AAIA publication involve women being subjected to involuntary sterilizations in addition to surveillance from welfare workers.²⁶ At the Lac de Flambeau Reservation, there were two examples reported of women being sterilized in exchange for not having their children removed, then having them removed anyway.²⁷ Sterilization and child removal policies operated as parallel strategies to reduce Indian populations. The right to Indigenous motherhood and the right to define what Indigenous motherhood entailed emerge from the history of state intervention into families through resistance narratives of women who organized to challenge social workers’ construction of the unfit Indian mother.²⁸

In highlighting these women’s experiences at the hands of social workers, one cannot conclude that Indigenous women in some cases chose to relinquish children. As Devon A. Mihesuah points out, “There was and is no such thing as a monolithic, essential Indian woman.”29 However, Indigenous groups emphasized the rights of Indian tribes to determine the best interests of children in these negotiations. During the hearings, the issue of women’s desire for privacy was brought to the attention of the committee by Mr Butler, representing the BIA. He opposed the legislation creating placement standards as invasion of the privacy of unwed mothers who sought to have their children adopted without the knowledge of their community.³⁰ Likewise, the issue of privacy concerned the representative from ARENA, the organization most responsible for arranging the adoption of Indian children in this period, asserting, “Our organization stands for the concept that every child has the right to a permanent nurturing family of his own.”³¹ She voiced concern that children could become caught up in a lifetime of temporary care. She argued that “experience and research shows us that transracial adoptive placements can produce stable adults with a sense of ethnic identity.”³² She also feared that the drafted legislation would invade the rights of parents to choose care for their children. Despite the concerns of the bureau and ARENA representatives, the Indian Child Welfare Act (1978) placed the jurisdiction for adoptions under tribal courts. Tribal courts were empowered to weigh the questions of permanency and privacy against the needs of families and children.

The AAIA drafted a bill entitled the Indian Child Welfare Act (1976) to address five perceived issues at the root of the removal of Indian children from their homes and communities: first, parents did not understand the nature of the court proceedings; second, there was no legal representation or awareness of rights; third, there was no knowledge and respect for Native customs; fourth, there were no reasonable grounds to remove children; and finally, tribal governments were not consulted about the proceedings.³³ The resultant Indian Child Welfare Act, passed in 1978, acknowledged the “special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian peoples” based on article I, section 8, clause 3 of the United States Constitution, as well as other statutes, treaties, and dealings, which indicated that the government had a relationship of protection for Indian tribes.³⁴ In recognition of the “alarmingly high percentage of Indian families that are broken up by the removal, often unwanted, of their children,” ICWA set minimum federal standards for the removal of Indian children and placement in foster and adoptive homes.35 Title I, section 101 (a) gave Indian tribes exclusive jurisdiction over child custody proceedings involving Indian children through the tribal court system; likewise it established restrictions on agencies prior to removal. In voluntary placements or termination of parental rights, consent had to be received in writing from tribal authorities, and preference was given to placing children with extended family members or in tribal foster homes, Indian homes, or institutions approved by the Indian tribes. Likewise, the Act called for direct funding to tribes for provision of services to preserve families and placement of children on reservations.³⁶ The passing of ICWA signalled a transformative moment in supporting self-determination and restoring tribal kinship forms to American Indian communities.

The Act dramatically recognized the federal-tribal relationship and provided a tool for tribal governments to begin to apply their own community standards in providing child and family services to their members. Tribal sovereignty of American Indians in law has been based both in Canada and the United States on the Royal Proclamation of 1763 and the ruling of Justice Marshall on appeal that Indian nations were considered distinct, political communities retaining some of their original natural rights.³⁷ These two elements set the stage for future federal-state-Indian relations such as the ICWA. In the court case Cherokee Nation vs Georgia (1831) 30 U.S. (5 Pet.) 1 (U.S.S. c), the place of the Cherokee and thus all Native inhabitants in the federal state was resolved as “domestic dependent nations,” in a trustee relationship with the federal government, acknowledging that Indigenous peoples retained residual sovereignty.³⁸ At the time of the passing of the ICWA, the state of tribal courts varied from community to community. They were started under the provisions of the Indian Reorganization Act of 1934 under John Collier, commissioner of the Bureau of Indian Affairs from 1933 to 1945, as part of the reforms of Indian policy intended to restore lost land and tribal sovereignty from past abuses.³⁹

First Nations in Canada did not immediately seize upon the importance of the ICWA as a dramatic recognition of tribal sovereignty in child welfare. Indian and Métis groups who had experienced very similar child welfare policies sought several different methods to secure control over child welfare and stem the removal of children. Indeed, there were many similarities in Indian policy between Canada and the United States, primarily as a result of the shared foundation in British law, the negotiation of treaties, creation of reserves, wardship, and assimilation through education and institutionalized paternalism.40 One significant divergence between Canada and the United States is the role the Canadian Indian Act has played in determining who obtains and retains Indian status. While U.S. Indian status is derived from a combination of blood quantum and tribal membership rules, in Canada it flows from the patrilineal descent.⁴¹ Legislation in the United States did not attempt to define who qualified as Indian and relied primarily on the courts to decide, case by case. Women who married white men but continued living on their reservations with their husbands and children remained tribe members, with courts often recognizing the mother-right rule, or rights of tribes to define their own membership.⁴² The presence of mixed-bloods on reservations has been a common aspect of tribal communal life in the United States, whereas in Canada the notion of racial blood quantum has been complicated by the legal and gendered regime for Indian status.⁴³

Gendered experiences of colonization have led male and female leaders to approach self-determination through different avenues in Canada.⁴⁴ Colonization of Indigenous peoples brought about a loss of men’s and women’s political and economic power, and in addition, transformed those that had been egalitarian societies into economies where males controlled production of products of exchange and maintained political control. One area of Indigenous women’s organizing from 1970 onward focused on restoring the status and community membership of Indian women, from whom it had been involuntarily stripped.⁴⁵ Utilizing the courts to restore their lost connection to rights and treaty benefits negotiated by their ancestors, Canadian Indian women rejected the assaults on Indigenous kinship systems and their ability to pass on cultural and tribal inheritances to their children that removal entailed. The right to define membership in accordance with Indigenous definitions of belonging, be it through marriage or adoption, was seen as a matter of self-determination.⁴⁶ Jeannette Corbiere-Lavell, an Ojibway woman from the Wikwemikong First Nation, was one of the first Indigenous women to challenge the sex discrimination in the Indian Act. After marriage to David Lavell in April 1970, she received a letter that she was no longer a member of her community, under the Indian Act, section 12(1)(b). She argued that her loss of status upon marriage violated her equality before the law, guaranteed by section 1 (b) of the Canadian Bill of Rights.47 While certainly this loss of status posed an individual hardship to her and her future children through the loss of community support, inequality loomed over the lives of all Indian women in Canada, in part, hampering their abilities to provide for their children. Lavell recalled that knowing that her children would not benefit from the connections developed growing up in their community strengthened her resolve to pursue her case. Although she lost in the county court, she appealed the decision to the Federal Court of Appeal, which ruled in her favour; however, under pressure from the federal government and several federally funded Native organizations, it was appealed to the Supreme Court of Canada, where she lost by one vote.⁴⁸ Indigenous women such as Lavell and the members of the Native Women’s Association of Canada recognized that underlying racist legislation posed a threat to their well-being and the well-being of their children and adopted a feminist approach to ending patriarchy as a road to resolving child welfare issues.⁴⁹

An example from Anishinaabe-kwe (Anishinaabe woman/female) ideology of motherhood and mothering illustrates how kinship systems support women and children. Mothering and motherhood are seen as a complex web of relations that provide support and solidarity among women.⁵⁰ Each woman has a responsibility to foster and nurture the next generation and allows others to assist in that process, such as aunties and grandmothers. Motherhood does not refer only to biological motherhood, but is expressed also through the teaching and nurturing of the next generation. Women often assisted in raising the children of their sisters and daughters, on occasion adopting kin to raise. Women removed from communities and on the outside of these relations and networks likely found themselves negotiating the services provided by provincial agencies and all the difficulty that would present. As Jo-Anne Fiske has observed through her time spent with Indigenous women in British Columbia, federal policies responsible for Indigenous women intersect with provincial policies that regulate women who live on the social and economic margins.⁵¹

Indigenous kinship relations, used to supplement meagre incomes and provide assistance, were targeted as a fundamental stumbling block to full integration into the Canadian economy.⁵² The authors of the Hawthorn report identified Indigenous social relations, which they termed “kin obligations,” as a significant detriment to the economic position of the individual Indian worker. They stated, “The burdens of aid to kin and friends seem to underlie a multitude of problems in addition to those of employment and income alone. In some cases alcoholism is induced by the feelings of helplessness and resignation – nothing to work for or see ahead – as well as a means of blunting the interpersonal conflicts and tensions that arise from overcrowding and friction with kin and others.”53 Rather than a source of support and strength, white social scientists and social workers viewed the extended family system as sources of retrogression and impediments to integration. The gradual weaning of Indigenous people from kinship obligations, and replacing the supports provided by family with the rationalized and regularized services provided by the state in the form of social welfare, education, child-rearing advice, day care, and public health services were idealized as the solution to poverty and separation that contributed to the marginalized place of Canada’s First Nations.

Rather than support, Indian and Métis people in Canada ended up with children removed and placed in underfunded and poorly run provincial child welfare systems. Child removal policies provided an opportunity to discipline non-conforming women, shape family relations to approximate those of the two-parent nuclear family, and socialize Indian children into normative working-class roles. Following the ill-conceived federal attempt to resolve Indigenous poverty and marginalization by drafting the White Paper, and the subsequent fallout and politicization, the shifting cultural and political landscape of the late 1970s and early 1980s in Canada little resembled the post-war era of integration.⁵⁴ The most significant transformation occurred with the relationship between Indigenous peoples and the government of Canada. Mirroring the move toward self-determination that occurred in the United States in the mid-1970s, First Nations, Métis, and Indigenous women’s organizations mobilized around land claims, self-government, and equal rights. The 1982 repatriation of the British North America Act of 1867 (Constitution Act, 1867) and adoption of the Charter of Rights and Freedoms revitalized federal and democratic engagement in constitutional politics. Prior to the passing of the Constitution in 1982, the only reference to Indigenous peoples in the BNA Act was section 91(24), giving the federal government sole jurisdiction over “Indians, and lands reserved for the Indians.” The recognition and affirmation of Aboriginal and treaty rights in the Constitution 1982 came from the strong position of the National Indian Brotherhood, later known as the Assembly of First Nations, and the Native Women’s Association of Canada. As a result of intense lobbying of Indigenous rights groups, the drafters of the Constitution inserted the clause, “The existing Aboriginal and treaty rights of the Indigenous peoples of Canada are hereby recognized and affirmed.” Likewise, Aboriginal people were defined to include “Indian, Métis and Inuit.” It then became necessary to determine what these rights were.55 According to political scientist Joyce Green, “Citizens would henceforth have rights guarantees under the Charter, including protection from race and sex discrimination and recognition of Aboriginal and treaty rights.”⁵⁶ Indigenous women’s groups played an important role in obtaining inclusion of sex equality rights in the Charter, and inclusion of unsurrendered Indigenous and treaty rights in the Constitution.⁵⁷ However, male Indigenous and non-Indigenous politicians did not always welcome women’s views. For example, mainstream Indigenous governments and bands resisted the passage of Bill C-31 enabling women who lost their status under the discriminatory Indian Act to regain it.⁵⁸ Thus there remained tension between male and female Indigenous organizations over how their newly granted rights would unfold, and how newly revitalized Indian and Métis nations would define their citizenship.⁵⁹

In Saskatchewan the Federation of Saskatchewan Indian Nations (FSIN), representing treaty and status Indians in Saskatchewan, the Indian Federated College, and the Canadian Indian Lawyers Association looked south to the United States for inspiration on how to frame their position on Indian child welfare since Hepworth’s statistics had revealed the troubling trends of over-representation. The first group to consider the Indian Child Welfare Act of 1978 as a model for Canadian legislation was the Indigenous Lawyers Association sponsored by the Saskatchewan Indian Federated College. At a workshop on Indian Child Rights held in Regina in March 1981, lawyers representing jurisdictions from across Canada listened to presentations by experts on the problem of Indigenous child welfare and attempted to draft a solution.⁶⁰ Clem Chartier, consultant for the Indian Law Program at the Saskatchewan Indian Federated College and president of the Canadian Indian Lawyers Association, had invited AAIA Executive Director Steven Unger to attend the convention. Chartier requested that Unger attend to discuss the role of the AAIA in advancing the rights of Indian children and families in the United States.61 Nancy Tuthil, the assistant director of the American Indian Law Center, had also been invited to explain the ICWA to those gathered. The ground-breaking recognition of the rights of the collective tribal entities to dictate not only the futures of Indian children, but the definition of Indian families through the passage of ICWA in the United States enabled Canadian Indian leaders and lawyers to consider pressing for a national law similar to that of the United States, removing jurisdiction from the provinces for Indigenous children and placing it with Indian peoples.

In addition to legislative revisions like that of ICWA under consideration by Indian leaders and lawyers, the conference also heard from Chief Wayne Christian. His band in British Columbia implemented an alternative approach to stop child removal through the legal framework of the Indian Act. In 1980 the 300-member Spallumcheen Band near Enderby passed a band by-law taking full responsibility for child custody based on their inherent right to self-determination and the right to care for their children.⁶² Responding to the removal of 150 children over a thirty-year period, Chief Christian took advantage of section 81 of the Indian Act that enabled Indian bands to pass by-laws.⁶³ Taking the individual initiative to reverse the trend toward removal, harm, and family breakdown, the new child welfare by-law echoed much of the 1978 ICWA legislation. Emphasizing the importance of children to the long-term survival of the people, and the devastating and community-wide impact of removal, the by-law gave the band “exclusive jurisdiction over any child custody proceeding involving an Indian child, notwithstanding the residence of the child.”⁶⁴ In addition, it stipulated a preferential scale of placements for band councils when considering with whom to place Indian children, after the child’s wishes had been considered and every effort had been made to restore the original family. Family resources were considered to be the preferred option, followed by on-reserve band members, off-reserve band members, then Indians on or off reserve. Finally, “only as a last resort shall the child be placed in the home of a non-Indian living off the reserve.”⁶⁵ While the federal government initially rejected the band’s by-law, it was allowed when presented the second time. While child welfare was recognized as a provincial jurisdiction, the band sought an agreement with the BC authorities that recognized their jurisdiction over children and developed a plan to provide the necessary resources to develop a program of support.66 Elsewhere bands had begun to delve into securing agreements to keep children on reserves.⁶⁷

In light of the changing climate around self-government, child welfare and transracial adoption became issues for political leaders seeking areas where Indian and Métis people could potentially obtain control. At the convention Ovide Mercredi, who became chief of the Assembly of First Nations in 1991, and Clem Chartier, future chair of the Métis National Council in 1983, drafted a formal statement on the importance of Indian child welfare to the future of Indian self-government. They stated that from the White Paper onward, Indian people had been asserting their nationhood and expressing their right to self-determination. One common thread was the right to ensure the safety and security of children in order to secure the future of Indian nations.⁶⁸ On evidence of the increase in transracial adoptions from 1964–5 to 1976–7, Mercredi and Chartier explained, “The increase in adoption has been viewed by Indian people as a form of assimilation and genocide, however the courts have attempted to negate them by ruling that an Indian child does not lose his-her status upon adoption. This however has not been acceptable to Indian people.”⁶⁹ This problem, articulated by Indian lawyers, stemmed from the lack of federal legislation providing direction on child welfare. Further, the legal experts asserted that any future changes to child welfare legislation or provision must take place with the consultation of Indian people: “Any negotiations between the federal and provincial government without the prior consultation and participation of Indian associations are viewed with a great deal of suspicion and resentment.”⁷⁰ Provincial responsibility for child welfare was rejected by First Nations people. The current child welfare crisis was attributed to the deep poverty of Indigenous people who had been denied a share of the vast resources of Canada.

In response to emerging interest among Indigenous leadership, the Native Law Centre at the University of Saskatchewan provided direction on responsibility for the provision of child welfare for First Nations. Kent McNeil looked at the legal issues in delivery of services, with emphasis on the jurisdictional question.⁷¹ McNeil considered the feasibility of implementing legislation similar to the Indian Child Welfare Act in Canada. Like in the United States, federal jurisdiction over Indians in Canada enabled the government to recognize band councils’ jurisdiction. “By passing the ICWA, the United States Congress accepted responsibility for Indian child welfare matters and used its legislative power to transfer jurisdiction in this area back to the tribal level. Under section 91(24) the BNA Act, Parliament has the authority to enact similar legislation in Canada, if it so chooses. Lack of a tribal court system in Canada would need tribunals, or could be filled by band councils.”72 The poor state of Indian child welfare in Canada had been due to the jurisdictional disputes between the provinces and the federal government. The provinces were reluctant partners in the provision of services for two reasons: their belief that Indians in Canada were solely a federal responsibility, and Prairie Indian people refused to accept provincial control based on the treaty relationships they had with the Crown. McNeil envisioned two possible ways Indian governments could pursue control over child welfare. The first was to pressure the federal government to enact legislation similar to that of the American ICWA. The second was for bands to enact by-laws like the Spallumcheen band in BC (1980), which required that the federal government amend the Indian Act to give band councils power to make by-laws in that area.⁷³

Unlike the United States, Canada did not develop a nationwide, grassroots, cross-cultural child welfare movement to challenge the status quo. Without the widespread support for a national paradigm shift in Indian child welfare, there was little hope for major change. In February 1982 Saskatchewan began an internal policy review of child welfare policy, with an eye to revising the legislation. The Family Services Act, passed in 1973, reflected the thinking of the time and had been based on an uncertain relationship regarding services to treaty Indian people.⁷⁴ Winds of change were blowing in the form of the Charter of Rights and Freedoms and Indigenous self-determination, and the province was mindful of its failure to address concerns that Indigenous people raised in the past decade. Looking to Manitoba as a possible template for future action, the Department of Social Services circulated a memo containing recent events in its provincial neighbour. On 23 February 1982 the Manitoba and federal governments and the Four Nations Confederacy signed an agreement to develop and deliver on-reserve child welfare services. The agreement provided a full range of child welfare services to all Indian communities who opted in. Funding for the programs came directly from the federal government to agents delivering services.75

Shortly thereafter, the Department of Indian Affairs and Northern Development, formerly Indian Affairs, released a policy statement. It simply indicated that the provinces would continue to provide services to all treaty people but provided a framework to begin negotiation of the tripartite agreements between provinces, First Nations, and the federal government.⁷⁶ It reiterated that provincial child welfare services should be extended to all reserve communities and families on Crown lands, and that they would fund child welfare services to residents of Indian communities. In contrast to the ICWA, Indian Affairs made clear that provincial and territorial governments had legal responsibility to provide child care and protection.⁷⁷ DIAND’s role was financial and not developmental. In response, the Saskatchewan government issued a revised Family Services Policy Statement to continue to provide all services to off-reserve First Nations people, with the federal government providing payment. On reserves, the Department of Social Services would step in only for extreme cases of neglect or if there was a request to remove a child by the Department of Indian Affairs. This policy applied when a child’s safety was at stake, in the absence of a federal policy, or upon refusal of the federal government to respond to a child protection situation on the reserve.⁷⁸ The lack of presence on reserve, other than to remove children in cases of abuse or neglect, certainly would not have endeared workers to residents. Likewise, apprehensions and adoption appear to be the only services to which on-reserve people had access.

Child removal, in the form of apprehension and adoption, remained the only services available for Indian children and families residing on reserves, while off-reserve families technically had access to the whole range of preventative services. The unresolved jurisdictional disputes that arose as a result of section 88 of the Indian Act were exacerbated as the federal government refused to legislate an alternative national child welfare framework, or provide national policy directives to develop Indigenous child welfare services on reserve. This unsatisfactory arrangement left the provincial government reluctantly providing second-rate services to on-reserve children, and Indigenous peoples and children in particular in limbo. With the emergence of the Peyakowak Committee, the politicization of child welfare in Saskatchewan took a new turn. Formed as a steering committee for the Taking Control Project at the University of Regina’s Faculty of Social Work, Peyakowak was a diverse community-action committee. Led by social work professor Harvey Stalwick, Peyakowak played a community-activist role, seeking out new solutions for Indigenous child welfare in Saskatchewan. The Taking Control group received financial support from the federal government to revise social work education in Canada. It eventually became a three-year project with the working title “Indian and Native Social Work Education in Canada: A Study and Demonstration of Strategies for Change.” The group shortened their name to “Taking Control,” centred on the concept of Indigenous self-government.79 Using the participatory action model, they defined their role as supporting the advancement of social justice, stating, “Research is a means of understanding conditions, being in dialogue and becoming involved in change.”⁸⁰

In 1983 the Peyakowak Committee set out to “learn from elders, communicate with others, share with those who still suffer, re-establish evaluation of the Family Services Act, stop apprehensions where alternative exist, create cross-cultural awareness with non-Natives and do it ourselves.”⁸¹ A conference in 1983 brought together members in the Regina Indigenous community involved in the child welfare system, to identify important issues, then take them to the provincial Department of Social Services. It is clear from the list of resolutions that the Taking Control Group shared the perspective of the FSIN, that child welfare and transracial adoption were tied to the expression of self-government in ways that echoed the ICWA in the United States. For example “Resolution: Indian children are being placed or adopted in non-Native foster homes without the consent of their natural parents or Indian governments (Chief and Councils).”⁸² Resolution D also echoed the provisions of the ICWA of 1978 in calling for control by band governments.⁸³ The Taking Control Conference identified the need for more Native adoptive and foster homes, which the Métis Society and the Native Women’s Movement had been advocating for many years. From the 1970s onward, the Métis Society and the Native Women’s Movement worked alongside the department while developing community resources to reform the system. In the 1980s, First Nations and Métis leadership, along with sympathetic academics, saw “taking control” of child welfare as the solution to the over-representation of Indian and Métis children in white foster homes. The membership of the Peyakowak Committee had academics from the University of Regina and activists engaged in social movements like the right to Indian self-government sweeping the country.

Peyakowak lobbied the provincial government to launch an inquiry into the child welfare system in Saskatchewan to raise the profile of Indian child welfare. With the change in government in May 1982, from the NDP under Allan Blakeney to the Progressive Conservatives under Grant Devine, conditions were ripe to revise past NDP legislation. On 27 May 1983, following the death of toddler Christopher Aisaican in a foster home, Lavina Bitternose, secretary of the Peyakowak Committee, wrote to the Minister of Social Services Patricia Smith. The group charged that Native children in the system received poor care and were more likely to be made permanent wards or adopted rather than being returned to their families. Peyakowak raised several questions: “Who advocates on behalf of the child? What protection for child’s rights, for family’s rights? We have a charter of rights and freedoms, yet there is no visible protection for children in the system – in the care and custody of the department. The department has sole authority for the care of the children – and it is a system that has a severe lack of resources for protection of the child.”84 In Saskatchewan there were no mechanisms to ensure that once children were removed from their families and communities, they were protected. For example, the government did not have a system to monitor foster homes. One area that needed attention, the committee believed, was the legislation that provided direction for the Department of Social Services, the Family Services Act (1973). In particular, they highlighted the lack of sections that dealt with prevention, as well as a lack of cultural resources for Native children in foster care. Likewise, there had been cutbacks in funding, insufficient support for families, not enough social workers, and general lack of support for vulnerable families and children.

Minister Smith rejected the need for an inquiry, claiming the department had completed an internal review and a prepared discussion paper. In truth, the discussion paper never came together. In her official statement, she replied, “I do not believe an inquiry would be an efficient or appropriate means of resolving these issues.”⁸⁵ Rather than an inquiry, the department suggested a consultation and requested that Peyakowak take part.⁸⁶ While the government remained resistant to an inquiry, a number of allies called for and supported the demand for an inquiry. For example, from the Conference of Mennonites in Canada, Henry Bartel, chair of the Native Support Committee, wrote to the department advocating an inquiry.87 Patrick Johnston, who had just published his critically important contribution to the discussion, Native Children and the Child Welfare System, knew the need for it better than anyone. In supporting an inquiry, he stated, “In my opinion, the problems inherent in the delivery of child welfare services are most acute in Saskatchewan and barriers to constructive change most complex.”⁸⁸ Certainly the support of these well-respected individuals gave credibility to the idea of a public review. The department recognized that change was necessary, stating, “Our efforts in this area need to be stepped up. Native participation in decisions of this kind is absolutely essential.”⁸⁹ But the inquiry did not materialize.

Shortly thereafter, Gordon Dirks replaced Smith as Minister of Social Services and initiated a revision of the Family Services Act. Prior to the public review, an internal discussion paper identified areas of concern with the Child and Family Services legislation as it stood in 1983.⁹⁰ The primary concern was legislative emphasis on the removal of children in need of protection. Too often children were removed from families and placed in group homes or foster homes until the child was returned home or adopted. Also there was failure to include families in planning or community groups in the provision of services. Too much power was concentrated in the hands of the department. The role of the courts was problematic, since it created an adversarial atmosphere and again contributed to apprehension. Native groups also criticized the trauma faced by Indigenous children entering into care in large numbers. Finally, the internal discussion paper suggested that legislation needed to broaden the definition of parent to include unmarried father, grandparent, relative, or friend, or Indian band.⁹¹

In addition to updating the legislation, the government also began an internal conversation about Indigenous customary adoption.⁹² In response to the moratorium on adoptions in Saskatchewan proposed by the FSIN, Peyakowak, and other Indigenous organizations, a paper on custom adoption by law student Linda Lock was circulated to caucus. “Custom Adoption and Its Implications on the Breakdown of the Indian Culture,” submitted on 15 April 1983 for a Native law course at the University of Saskatchewan, proposed custom adoption as a “viable alternative to the somewhat arbitrary selection of foster and adoption homes being forced on Indian children by government officials.”93 The paper strongly condemned the unsatisfactory situation in Indian child welfare in jurisdictions across Canada, pointing to efforts underway to restore Indigenous decision-making and give customary adoptions the force of law in Canadian courts. Specifically, Lock looked at the customary adoption approach in the North, the American Indian Child Welfare Act, and other systems emerging to turn the tide of Indigenous child removal.⁹⁴ Lock illustrated clearly that Canada was enacting cultural genocide through its child welfare policies, through ”the forcible transfer of children of the Indian group to another group.”⁹⁵ The paper made an extremely strong case for governments to get out of the dirty business of Indigenous cultural genocide through child welfare apprehensions and adoptions.

On 14 September 1983 Gordon Dirks, Minister of Social Services, presented an address to the Peyakowak Committee outlining the proposed direction of the government. He commended the group for their role in bringing these issues to the attention of the public and the government.⁹⁶ The next step was to gather public input into the changing direction on child and family services, as well as perhaps uncovering other areas of concern for groups in the community. In his address, Dirks officially established the ministerial advisory council on child protection. The council held public meetings in Regina, Saskatoon, and Prince Albert. Chaired by child psychiatrist Peter Matthews, president of the Saskatoon Society for the Protection of Children, the committee had five members of the Indigenous community, including Ivy Seales from Regina Native Women.⁹⁷ Questions were distributed for direction in areas that included adoption. For the adoption of children, Matthews was curious about adoption of children by step-parents, privately arranged adoptions, adoption of adults, and de facto adoptions where a child had been in the care of a particular family but was not legally a member of that family.⁹⁸ Over the next several months, public meetings were held across urban Saskatchewan. First Nations governments had the opportunity to provide input, and in doing so they developed a political position on Indian child welfare that supported their larger claims to self-government.

Saskatchewan residents, few of whom likely had experience with the Department of Social Services, discovered that services provided with their tax dollars were less than satisfactory. Three themes emerged from the three days of meetings held in Saskatoon: lack of services for prevention through family support systems, abusive by department employees in pushing parents aside, and harm to Native children by uniform application of the law. In addition, First Nations sought to take control of child welfare services.99 When questioned on how to balance needs for prevention with protection, Minister Dirks replied, “It’s not an either/or situation.” Clearly Dirks found it complicated to determine “who defines what is a family in need of services, who is responsible to give those services, what role does the family have in saying no.” He also indicated that the final legislation would need to satisfy general public concerns, and not just one group.¹⁰⁰

In the Regina meetings, Indigenous representatives articulated the need to utilize the extended family for foster placements to prevent children from having their relationship to their communities severed. Chief Standing Ready, from White Buffalo First Nation, stated that children had been removed without proper input from Indian people. He felt that when children were adopted into white homes, they did know not who they were. He believed that what was needed was more Indian foster homes. At the same time he recognized that a major problem for Indian people was lack of housing. Leona Blondeau, a representative from the Saskatchewan Native Women’s Association, argued that apprehensions should be only a last resort. Indigenous families in Saskatchewan needed support and education to retain children and strengthen families. She felt that the goal for some social workers was for Native children’s ultimate adoption and integration into white society.¹⁰¹

The council heard that First Nations peoples accused the Social Services Department of causing cultural and social genocide in its treatment of Indigenous children. Claudia Agecoutay, of Cowessess Reserve, outlined the need for Native control, provisions for Indian families, notification of band or community leaders about adoption or fostering even in the case of children living in the cities, finding Indian foster and adoptive homes, and placing children with members of extended families. The council also heard from Nancy Ayers, a Saskatoon lawyer, about the impact of jurisdictional disputes between federal and provincial governments, suggesting that the province could delegate responsibility to bands and enter tripartite agreements like Manitoba. Provincial law should be amended so bands could administer their own programs and child services.102

The provincial government anticipated that the FSIN position on child welfare would be related to the ultimate goal of Indian self-government and saw Indigenous resistance as adversarial, rather than intrinsic to Indigenous survival. Saskatchewan First Nations sought a federally funded Indian child welfare system under the control of First Nations bands without the involvement of the provincial government. In the report drafted for the hearings, Indian Control of Indian Child Welfare, the FSIN focused solely on securing control over child welfare.¹⁰³ The introduction read, “The principal reason for the high numbers of Indian children in the care of the present child welfare system is the lack of control Indian people have over the lives of Indian families and children. Without this control, Indian people cannot ensure the continuity and stability of the culture from generation to generation.”¹⁰⁴ They rejected provincial provision of services and used their recent constitutional position to argue for control of child welfare services: “The Indian people of Saskatchewan, through their bands, districts, regional and national organizations have strongly supported the entrenchment of Indigenous rights and treaty rights, and the recognition of Indian self-government in the constitution. The struggle to entrench those rights led to an intense period of national and international lobbying during the recent deliberations concerning the patriation of the Canadian constitution.”¹⁰⁵

To show their determination to obtain control and see an end to transracial adoption, the FSIN passed a resolution at the First Annual Legislative Assembly insisting there be a one-year moratorium on Indian adoptions, while urging the province to support Indian control over Indian child welfare. The minister of social services offered no comment.¹⁰⁶

Following the submission of the FSIN position paper and the rather hasty round of hearings in October and November 1983, the council prepared its final report for the Department of Social Services and the Saskatchewan people. It soundly rejected the FSIN demand for Indian control of Indian child welfare. In the final report, Indian control was viewed in economic rather than political terms, pointing to the lack of financial and human resources of Indian bands. The council resolved that it was impossible at that point for Native communities to offer protection for their children. The council recommended limiting Indigenous transracial adoption outside Saskatchewan, except to family members. It endorsed financially supported adoptions as an alternative to regular adoption for Indigenous people, as well as handicapped children. The council also called for increased cooperation with Native communities across Saskatchewan through the Department of Social Services. On the basis of input from the Peyakowak Committee on adoption, which was strongly opposed to cross-cultural adoption, the council recommended that private adoptions, as arranged by Native communities from time immemorial, begin to receive the force of law. It suggested a gradual move in the direction of Native control, using the model of tripartite agreements in Manitoba and elsewhere. The council was hesitant to relinquish complete control to First Nations and Métis groups, since “because of the requirement for skills and expertise in the area, the department must continue to be involved until satisfied with the quality of service that can be delivered.”107 Overall, the council warned against using children as pawns in the political process. Finally, the council rejected the FSIN recommendation that there be a moratorium on interracial adoption like Manitoba and the United States. The council argued that the only alternative to adoption would be to make children permanent wards, and the better solution would be to find Native homes for the children. The council was hopeful that a supportive relationship between the newly forming Indian child welfare organizations and the departments would develop.¹⁰⁸

Saskatchewan’s review of the Family Services Act (1973) in the second half of 1983 was part of a countrywide movement to address problems that beset provincial governments when providing child welfare services to Indigenous peoples and to bring legislation in line with the cultural and legal changes that had taken place over the past decade.¹⁰⁹ The Saskatchewan public review process offered an explanation and presented recommendations to address the high proportion of Indigenous children in care and the lack of preventative care for families. These explanations didn’t satisfy Indigenous leaders or activists who had sought full control and recognition of their rights to determine the future of their children. It also provided a public forum to air grievances and raise awareness about these issues in the greater community. In the decade since the Métis Society and the Native Women’s Movement first challenged the child removal logic of the Department of Social Services, Indigenous peoples in North America had grown increasingly vocal in protesting government policies that led to the breakdown of the Indian family, for education or protection. Beginning with decolonization in Canada and the United States, control of the provision of child and family services to Indigenous children occupied a central position in discussions of self-determination. Ending transracial adoption symbolized ending the unequal and unilateral policies of integration after the Second World War.

While Indigenous women took part in the council and were heard at community meetings, no meaningful analysis of women’s experiences or analysis of gender emerged. The silence around Indigenous motherhood, the breakdown of the Indigenous family, and the impact of residential schools left a legacy that prevented governments from addressing the increasing rates of Indigenous children entering the child welfare system.

The conservative perspective of the council was unable to reconcile the connection between retaining children in communities and the future health of Indigenous cultures. The advisory nature of the council also limited its impact, and the two-month duration and three-city tour limited the scope. By contrast, Judge Kimelman’s inquiry in Manitoba ran from May 1982 until February 1983, travelling from Brandon to Churchill, visiting reserves in the north and south. In Saskatchewan there were no significant changes in child welfare until 1989, when the Child and Family Services Act was revised. In 1991 the first tripartite agreement was signed. Rather than acquiring tangible gains, the council’s value was that it provided a forum for groups to enter a public dialogue about the strengths and weaknesses of Saskatchewan’s child welfare system. Transracial adoption, while statistically minor in Saskatchewan, was symbolically significant in the struggle over child welfare for Indigenous groups. Indigenous peoples in Canada in the early 1980s sought means to regain control over family relationships severed through policies, ignorance, and good intentions, and to restore Indigenous kinship systems as a foundation of self-determination.

In recent years the Lac La Ronge First Nation in northern Saskatchewan has reversed the trend in increasing apprehensions. Their child and family services organization, the Lac La Ronge Indian Child and Family Services Agency (LLR-ICFSA) is disrupting child removal. As one of the few nationally accredited child-caring agencies in Canada, they have reduced their children in out of home care by 30 per cent in the first year of accreditation, in 2019.110 Operating under the provincial legislation, the Saskatchewan Child and Family Services Act (1989), the agency has focused on keeping children in the community, and as Denali Youngwolfe has demonstrated, “to mitigate harm caused by generations of child removals the LLR-ICFSA … will not make children permanent wards.”¹¹¹ While providing services to families to prevent removals, the band is reclaiming Indigenous kinship systems and disrupting the settler-colonial logic of child removal.