chapter four

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The Sixties and Seventies Scoop and the Genocide Convention

In 2011, I had the privilege of interviewing many IRS Survivors in Sault Ste. Marie, Ontario, through the generosity of the National Residential School Survivors Society and the goodwill of the Survivors. Not only did Survivors agree to share their stories with me, but some also acted as health support for other Survivors. As the TRC held regional and National Events throughout the country, I routinely met those I had previously interviewed. Some were there to share their stories, while others wore coloured health-support vests to assist fellow Survivors in their healing journeys.

For many Survivors, being forcibly transferred to residential schools was not the end of their negative encounters with the settler state. Indeed, the legacies of the system continued well after the children had left the confines of the schools, and the state found still other ways to break up Indigenous families. In her discussion with me, Sandra recalled her instances of abuse in the residential schools and then recounted a second trauma she had experienced, this time in her dealings with the Children’s Aid Society (CAS) in Sault Ste. Marie. Sandra gave birth to a healthy girl in the early 1960s, but was almost immediately coerced by the CAS into giving up her baby:

All of a sudden I got all these people around me, and I couldn’t leave my room, I couldn’t leave my bed, you know? I could stand up there, but I couldn’t go out of that room. And you’re so naïve when you go to residential school, you don’t know because nobody tells you anything, you know? So, they got these people and then authoritative people, people in authority you have to listen to, you have to do what they tell you, that’s what we learned. So they came in and they had these papers that I had to sign, and I signed them, I don’t know what I was signing, but I signed them because that’s what they told me I had to do, and I went to see my baby, and they said that wasn’t possible, and anyway, they had a guard.1

As I understand her experience, Sandra never wanted to leave her baby. She felt forced into doing so and regretted the situation immediately, yet felt powerless to take action. When she called the CAS, she was told that her baby had been adopted by an English family and was in Great Britain. The truth, she found out later, was that her daughter was still in Sault Ste. Marie and that, during some parts of their lives, they had lived within blocks of each other and never knew. When we spoke, she was building a relationship with her daughter, an example perhaps of reconciliation after genocide.²

This short chapter covers a period of changing strategy in the Canadian settler state’s attempt to control Indigenous peoples. Here we move from a specific to a more general intent to commit genocide as some political powers were devolved to the provinces and territories – what John Borrows identifies³ as a clear violation of the Crown’s responsibility to its Indigenous treaty partners from the Treaty of Niagara onwards. From a strictly legalist perspective, it is difficult to prove a specific, across-the-board intent to commit genocide during the Sixties Scoop. From a pluralist point of view, however, it is clear that a general intent existed to forcibly transfer Indigenous children and destroy their specific group identities. Racism against Indigenous families and communities also played a key role.

This chapter provides an overview of federal and provincial policy shifts and continuities, and I argue that as policies of forcible transfer in residential schools began to wind down, new policies, focused on forcibly removing Indigenous children through child welfare agencies, increased. One of these policies was the Sixties Scoop. The Sixties Scoop also saw the widespread targeting of Métis children alongside First Nations and Inuit children, although only status First Nations claimants have so far been successful in class-action claims against the government. An Ontario-based class action, initiated by Marcia Brown Martel in 2009, asked for $1.3 billion. In February 2017, the Ontario Superior Court found in favour of the claimants. In October 2017, treaty and status Sixties Scoop claimants (including Inuit) received a settlement of up to $750 million, which amounts to about $25,000 to $50,000 per child, depending on the number of claimants. A further $50 million would go to an Indigenous Healing Foundation and another $75 million to pay legal costs. Further settlements may be forthcoming from provinces and territories for sexual, physical, and other forms of abuse as well as loss of language and culture.4

In this chapter, I also introduce a comparative discussion by exploring Australia’s policies of forcible removal of Aboriginal and Torres Strait Islander peoples and how, in 1997, the Australian Human Rights Commission interpreted the fate of the Stolen Generations as being genocidal. If we keep the Australian precedent and its legal innovations in mind, the Sixties Scoop can also be seen as a violation of the UN Genocide Convention.

Changes in Forcible Transfer Policies

The Sixties Scoop is a misleading term in the sense that the forced removals that fell within its scope did not end during the 1960s, but rather continued into the mid-1980s, with serious reverberations still. Others prefer the terms Stolen Generations or Lost Generations, which echo the terminology used in Australia.⁵ The major permissive cause of the Sixties Scoop was the 1951 package of amendments to the Indian Act, whereby the federal government adopted an assimilationist agenda. Provincial school boards received additional funding (with strings attached) to facilitate more Indigenous children attending day schools. Section 87 of the amendments laid the basis for devolving federal responsibilities for child welfare services for status Indians to the provinces. Once a funding model had been agreed upon, the provinces gained the jurisdiction to apprehend status First Nations children.⁶

The amendments were the product of a joint Senate and House of Commons committee, which met from 1946 to 1948 and made a number of recommendations that were progressive for the time. These included reinstating the right to vote for First Nations people who had opted to retain their status, the creation of an Indian claims commission, the reduction of ministerial discretionary powers, and an increase in band council control over some aspects of their own affairs. While the federal government did not implement these recommendations, there was a policy turn in the direction of using day schools to integrate Indigenous children.7

By 1954, the federal government took over funding for IRS teachers. While the residential schools were being slowly phased out, they nevertheless remained an important part of the overall educational system until the end of the 1960s, especially for people living in areas inaccessible to day schools. During the 1960s, there were still approximately ten thousand Indigenous children in sixty residential schools across the country. However, important changes were being made. In 1970, some residential schools were closed down, while in a small number of cases, control shifted towards First Nations; this was the case with the Blue Quills Residential School in St. Paul, Alberta, after the Saddle Lake Cree Nation staged a sit-in. By 1972, the National Indian Brotherhood sought to end government control of First Nations education, and this brought about further changes.⁸

During the 1950s, Indian agents had used the residential schools, in part as child welfare institutions for children whom they deemed were being neglected by their parents or guardians. As the schools closed, children were transferred from one form of institution to another. This practice had less to do with any impartial assessment of the actual care the children were receiving and more to do with Eurocentric perceptions of who should be a caregiver and what constituted good care. In their seminal study, Fournier and Crey outline a legacy of “culturally inappropriate judgments” taking root in settler-controlled child welfare systems, noting, “Orphaned children were quickly scooped up, but so too were those cared for by an aged grandmother or parents living in the impoverished conditions that were endemic on reserves by the early 1950s.”⁹

This shift in power was more pronounced after 1966, when the federal government and the provinces agreed to share social service costs – without inviting any input from Indigenous peoples or their organizations.10 In a detailed examination of the child welfare system in 1983, Patrick Johnson coined the term Sixties Scoop after noting an astounding statistic. While in 1955 less than 1 per cent of the children in British Columbia’s child welfare system were Indigenous, this swelled to 34 per cent by 1964. Johnson noted similar trends in the Prairie provinces by the 1970s, and he concluded that, nationally, status Indigenous children were 4.5 times more likely to be removed by child welfare agencies.¹¹ What was going on?

Federal and provincial governments did not take Indigenous forms of identity, community, or family seriously. Rampant paternalism, suffused with overt racism, informed the attitudes and policies of child welfare services. In her study of the Sixties Scoop, Karen Dubinsky notes how, at one level, the “racialization of poverty,” coupled with legacies of colonialism, starvation, and residential schooling, contributed to serious problems. At a higher level, colonialism created grossly unequal relations between Indigenous peoples and most agents of the state, including social workers, police officers, teachers, medical professionals, and many others, thereby undermining the ability of Indigenous families to look after their own children.¹²

Racist norms informed provincial child welfare agencies about what a successful family should look like: white, middle-class parents with at least one stable income.¹³ Eurocentric notions of family prevailed among social workers. A lack of a Western-style diet convinced some social workers that children were malnourished, even if there was a plentiful supply of Indigenous traditional foods.¹⁴ Even leaving children in the care of grandparents while parents were working could be grounds for removing a child.¹⁵ There was a blatant disregard for Indigenous, community forms of child-raising. As Bev Sellars explains in the case of her people,

Children were precious and belonged to everyone. They were our children, not my children. It was expected that if a child lost his or her parents for whatever reason, the extended family would step in and make sure the child remained a part of the community. It was an obligation on the part of the nation to care for the children just as it was an obligation to care for the elderly, for example.16

American adoption agencies became involved in the process in an aggressive campaign to buy Indigenous children to sell to primarily white, middle-class families. In 1981, while 7 per cent of white children were sent out of Manitoba for adoption, the figure for Indigenous children was 55 per cent. Private adoption agencies often paid between $5,000 and $10,000 per child, with little oversight from provincial authorities. Until 1982, there were no legal barriers to removing children from Manitoba or from Canada.¹⁷ Marlene Orgeron, from Shoal Lake, Manitoba, was taken from her home in the 1970s and adopted by a family in Louisiana, who paid $30,000. Willy Fast was sold to a family in Indiana for $10,000. A family in Holland paid $6,400 for Carla Williams, while Alyson and Debra, twin sisters, were sent to Pennsylvania, where they fetched $10,000.¹⁸ Maggie Blacksmith, an Anishinaabe social worker whose son was taken by Manitoba social workers, recalls what it was like:

Big, shiny American cars would come onto the reserve, followed by the social worker’s car. … When they left, there’d be a little Indian child sitting in the back of the American car, bawling their eyes out. The social worker always had a piece of paper saying it was legal. If parents tried to keep their kids, the social worker called the Mountie.¹⁹

In the early 1980s, Manitoba began investigating widespread abuses in the child welfare system. This culminated in a judicial inquiry, led by Justice Edwin Kimelman, who released a report in 1985, in which he concluded, “Cultural genocide has taken place in a systematic, routine manner.”²⁰ Kimelman suggested that, in terms of culture and identity, the Sixties Scoop had a more detrimental effect than the IRS system because, in his view, the children in the schools at least knew their families and had the opportunity to return at various points in the school year. By contrast, children who were removed for fostering or adoption were totally separated from their families, and since they were removed at a younger age, sometimes as babies, they experienced a complete severing of ties with their previous identity. In both cases, the guise of benevolence masked a horrific legacy of destruction.

The Kimelman Review Committee, along with organized Indigenous activism, managed to change some of the more egregious aspects of the child-adoption policies. During the 1980s, provinces and territories changed their focus and began privileging the placement of Indigenous children with extended families or other Indigenous peoples. In 1990, Indian and Northern Affairs Canada further devolved child and family services to local Indigenous bands and away from the provinces and territories.21 In its 1991 report, the Aboriginal Justice Inquiry of Manitoba laid out the case clearly:

In most provinces, these child welfare services were never provided in any kind of meaningful or culturally appropriate way. Instead of the counselling of families, or consultation with the community about alternatives to apprehending the child, the apprehension of Aboriginal children became the standard operating procedure with child welfare authorities in most provinces.²²

How many children were removed? Official estimates of 11,132 status children removed from 1960 to 1990 may be too low because the status of many children was not recorded on foster records; as a result, the number, if one includes Métis and non-status children, draws closer to 20,000 people. The vast majority of these children, some 70 to 90 per cent, went to non-Indigenous guardians. The problems generated by this decades-old pattern did not end in the 1990s. Chelsea Vowel recounts that “by 2002, over 22 500 Indigenous children were in foster care across Canada – more than the total taken during the Sixties Scoop and certainly more than had been taken to residential schools.”²³

According to the 2016 census, the situation is actually getting worse. Indigenous children under four represent only 8 per cent of the total number of children in Canada but, in 2016, represented 51.2 per cent of children in foster care, up from 49.1 per cent in 2011. Census data paints a negative picture of ongoing colonization and child removal: First Nations children comprise 41.4 per cent of those in foster care, and disproportionally high rates for both Métis and Inuit children are recorded as well.24

South of the border, Margaret Jacobs has documented US efforts to undertake the same process, and she estimates that somewhere between 25 and 35 per cent of Indigenous children were removed from their families by the end of the 1960s, a result of the Bureau of Indian Affairs’ (BIA) Indian Adoption Project of 1958, which ran on parallel lines with termination and relocation policies. Rather than working to keep families together, BIA bureaucrats were convinced that Indigenous parents were “inherently and irreparably unfit,” and they acted accordingly. Jacobs’s comparative work draws in Canada, the United States, and Australia as part of a global process of taking Indigenous children from their families. She notes, however, that while Australia and Canada have had national conversations about forced removal, Americans have scrupulously avoided them.²⁵

Can we argue that the Sixties Scoop violated the UN Genocide Convention? Emily Alston-O’Connor’s reading of this period suggests that genocide occurred.²⁶ Jo-Ann Episkenew also supports a claim of genocide, seeing in government policies “the intent to destroy Indigenous nations.” From her analysis, it is naïve to impute benign motives to the actions of the provincial governments in these matters.²⁷ Liebenberg and Ungar, in their work on Indigenous children in the child welfare system, put it this way: “Although the child welfare system purported to be acting in the best interests of the child, this second mass removal of children from their homes and communities paralleled the residential school experience and perpetuated the genocide of aboriginal people.”²⁸

During a detailed interview in late 2017, I asked Senator Murray Sinclair how he would legally interpret the significance of the Sixties Scoop through the lens of the Genocide Convention. Sinclair pointed out that applying Article 2(e) to the federal government during the Sixties Scoop is difficult, given the key roles of provincial authorities and the courts in the process.

I tend to view that it’s more likely that it was than it wasn’t, but I tend to view that it was more deliberately infliction of harm as opposed to a 2e situation or infliction of the conditions of life. The removal, the forcible removal of children from one group to the other for the purpose of doing away with the race of people, is the hurdle that’s difficult to overcome because arguably, and this will be the argument that Canada and the provinces would muster, [it] would be it wasn’t for the purpose of eliminating the race, it was for the purpose of protecting the children. And so, every case had to be justified before a judge on the basis that it was in the best interest [of] the child for the child to be placed with a foster family.29

While courts played a role in legitimating the process of removals, Sinclair points out that they provided very little oversight over the process, and children could be removed in stages, making it difficult to assign specific responsibility to any one institution or actor. As he explains,

The courts very rarely ever supervised the placement. They simply authorized the child welfare agency to do whatever it thought was in the best interest of the child. And so, the agency would come to the court and say, “We believe the child is in need of protection; do you agree with us, judge?” The judge would agree, and often because the situation at home, or the situation the child was in, was pretty dire. But then the question about what was in the best interest of the child often only became a question of how long should the agency be allowed to have the child in its care, either temporarily or permanently. And that’s the only thing that the courts decided, so the courts would decide you can have the child for six months or you can have the child, to make a permanent ward.³⁰

Sinclair equally noted a lack of judicial oversight as to what happened to the children afterwards:

Very rarely did agencies ever say to the courts, “We’re going to place this child for adoption to the States or to a white family.” So courts would often be the unwitting culprit or the unwitting participant in an overall policy. And we know that many agencies, in fact, had agreements with American agencies to place children for adoption for a fee, and those children would go into adoptive placements down there with those agencies and pay the fee. So, you know, on the face of it, I think that there is a pretty clear argument to be made that children were being forcibly removed and being placed with non-Indigenous parents at the hands of agencies as opposed to at the hands of the government. It’s the extent to which the government can be accountable for what the agencies did that becomes the issue. And so I think that implicates the provinces more than the federal government.31

Senator Sinclair’s nuanced legal assessment of the role of the courts and the provincial and federal governments outlines some of the difficulties in singling out one institution or level of government for responsibility in forcible transfer. Indeed, the system seemed designed to diffuse responsibility among a range of actors at multiple levels, with no overt intention expressed to do anything negative to Indigenous groups “as such.” Rather, everything was framed as being in the best interests of the children, a claim the courts, social workers, and government officials could make by the time the Sixties Scoop began. The commonality was that all these institutions were established by settlers on Indigenous lands and were administered by settlers to take Indigenous lands, to quell Indigenous resistance to settler colonization, while also seeking to assimilate Indigenous peoples into the settler state–dominated system.

The Australian Stolen Generations

In the 1990s, Australia grappled with legacies similar to those we are dealing with in Canada today, and we can look to the Australian precedent to provide further support for a genocide finding. In Australia, forced removals focused initially on mixed, or “half-caste,” children, then in 1940 moved to all Indigenous children. Children were removed either to white families or to boarding schools, processes coordinated through a range of state and federal legislation. Under the guise of child neglect, children would be removed, often without the consent of their parents or through pressured consent involving intimidation and threat.32 Another aspect of this campaign was the active prevention of marriage between “full-bloods” and “half-castes” in favour of “half-caste”/white marriages as a means of “breeding out the colour.”³³

Between 20,000 and 25,000 children were separated from their parents from 1910 to 1970, adopted out and taken to schools far from their home communities.³⁴ Few people outside Aboriginal communities used the term genocide until 1997, when the Australian Human Rights Commission’s report Bringing Them Home argued that Aboriginal child removals violated Article 2(e) in that somewhere between 10 and 30 per cent of Aboriginal children had been forcibly separated from their families.³⁵ As the report’s authors explained, “When a child was forcibly removed that child’s entire community lost, often permanently, its chance to perpetuate itself in that child. The Inquiry has concluded that this was a primary objective of forcible removals and is the reason they amount to genocide.”³⁶

The commission made a case for genocide on the basis that the child removals were designed to effect “absorption or assimilation of the children into the wider, non-Indigenous, community so that their unique cultural values and ethnic identities would disappear, giving way to models of Western culture.” Citing Lemkin directly, the report’s authors argued, “The objective was ‘the disintegration of the political and social institutions of culture, language, national feelings, religion, and the economical existence of’ Indigenous peoples. … Removal of children with this objective in mind is genocidal because it aims to destroy the ‘cultural unit’ which the Convention is concerned to preserve.”³⁷

Three useful legal conclusions were developed during this process. The first was that seemingly positive intentions on the part of the colonizers did not mean that forced removals were not genocidal; “animosity or hatred” was not required. While some of the intentions, such as job training and education, might be seen as positive, they did not negate the intention of destroying Indigenous groups and merging them into the dominant settler population.³⁸ A second legal point concerned how genocide could be inferred through practices rather than stated intentions. The report noted, “The continuation into the 1970s and 1980s of the practice of preferring non-Indigenous foster and adoptive families for Indigenous children was also arguably genocidal. The genocidal impact of these practices was reasonably foreseeable.”39

The commission’s understanding of genocide rested on general rather than specific intent, on “proof of reasonable foreseeability” of the actions of the perpetrators. This, it argued, was “sufficient to establish the Convention’s intent element.”⁴⁰ The commission provided the example of New South Wales, where the state had imposed a “general child welfare law,” but treated Indigenous and non-Indigenous children differently, applying the law far more severely to Indigenous children. Terms such as “neglected,” “destitute,” and “uncontrollable” could theoretically be used to describe any child in need of care, but they were far more likely to be used in courts to refer to Indigenous children, and were used far more systematically.⁴¹

To make such legal pronouncements was to subtly reinterpret international law on genocide, but a commission of inquiry was free to do this. Genocide at the domestic level can be defined as broadly or as narrowly as the state wishes it to be defined. It is, after all, up to individual state governments to decide how they are going to implement or ignore international law. Canada’s Parliament, as we have seen, chose to broaden and narrow the definition in the Criminal Code. The commission’s report reflected the larger debates about genocide in Australian history, which brought in and domesticated a wider definition of genocide based on Lemkin’s work.⁴²

While Bringing Them Home adopted a legalist interpretation of the UNGC, it similarly advocated for a more expansive interpretation. While the report had some supporters, and a reconciliation movement began, with “sorry books” and eventually a government apology, most of the political establishment and the right-of-centre government rejected the term genocide as merely an exaggeration – the outcome of political correctness and left-wing politics.⁴³ The Stolen Generations case is nevertheless a useful precedent for understanding how we might assign responsibility for the Sixties Scoop. In both cases, sub-federal units (states and provinces) administered the system, buttressed by the courts. Equally important is that, in both Australia and Canada, the federal Crown assumed ultimate responsibility for what occurred within its domestic jurisdiction. Australian Prime Minister Kevin Rudd issued an apology to the Stolen Generations, while in Canada, the federal government was the focus of the class-action suits initiated by Sixties Scoop survivors.

The argument for forcible transfer rests on the dislocation and theft of Indigenous identities. Children were deliberately placed in non-Indigenous homes, and as Fournier and Crey explained, “Their cultural identity, their legal Indian status, their knowledge of their own First Nation and even their birth names were erased, often forever.”44 Chris Benjamin has more recently described how “white parents often encouraged adoptive Aboriginal children to try to pass as white, in order to avoid racism altogether – a loving and unintended assault on their true culture.”⁴⁵ The long-term legacies were often profoundly negative. In her seminal analysis, Raven Sinclair concludes that while transracial adoptions were generally positive, those involving Indigenous peoples produced “consistently negative outcomes.” This was especially true once puberty began, during which time Sinclair noted a “breakdown rate of 95% by the time the adoptee is in the mid-teens.”⁴⁶ Some of these legacies are described by O’Connor and O’Neal. In the context of total separation from their communities, cultures, and identity, but in an environment where they were the victims of racism, “by the time they reached their mid-teens, the vast majority were running away repeatedly, abusing drugs and alcohol, or turning to crime as a result of identity crises.”⁴⁷

Shandra Spears, who was born in 1968 and sent out for adoption at birth, recalls a childhood without her own Indigenous identity, a childhood “robbed of a political, historical, spiritual, linguistic, and cultural base which could have given me a great sense of self-esteem and strength.” She has articulated some of her personal challenges as a result of her experiences:

I didn’t even know that I was Native. There was no Native “mirror” that reflected my beauty; only a white mirror that reflected my difference. I compared myself to the girls around me, with their small waists and cute noses. I didn’t look like them, but I had no reason to believe I was supposed to look any other way. Therefore, I “knew” that I was a white girl – an ugly white girl.48

Many Survivors have movingly described their experiences on the Ontario Sixties Scoop class-action case website, highlighting a loss of cultural identity for either themselves or family members. One commentator wrote, “I was born in 1954 and raised in a WASP home without a hint of Native culture or heritage. I ended up being sent to numerous psychologists and psychiatrists in order to figure out what was ‘wrong’ with me and why I saw the world around me so differently.” Still another described how, as a Crown ward, “I was raised not knowing my culture, family or language. … I believe I am a survivor of cultural genocide and this has greatly impacted me during my lifetime.”⁴⁹

Conclusions

The Sixties Scoop presents a different way of viewing Article 2(e), less directly traceable to any overt government policies or official statements about explicitly ending the separate existence of Indigenous peoples. Rather, we are confronted with general intent, with the collusion of provincial authorities and the courts. Yet this is, in many respects, a more compelling example of forcible transfer: Indigenous children were entirely stripped of their identities because transfer was practically irreversible. Whether some individual children may have benefited from adoption, and whether families voluntarily put their children up for adoption (one 2010 study indicates that a significant proportion of adoptees were given up voluntarily),⁵⁰ the larger context is more important. The settler colonial system created the conditions through lack of funding on reserves, discriminatory legislation, residential schooling, structural racism, and other means so that adoption was perceived as a preferred option. Further, the system was designed to destroy the ability of Indigenous peoples to perpetuate their governance traditions and cultures on their own lands. To this, Sellars adds, “It didn’t matter if the child was cared for in a safe home with good food and a loving family. The determining factor was that the child was Aboriginal and therefore his or her parents and grandparents were not fit to raise their own children.”51

This was a more successful form of forcible removal in many cases, especially since the records were sealed on adoptions and fostering for a very long time; the result was that the adoptees, often taken by force, had no legal means of finding out who they were, while their parents also had no access to their records. The Sixties Scoop can also be seen as an aspect of the intergenerational trauma produced by the IRS system. Many of the challenges within Indigenous communities can be traced to the legacies of these forms of forcible transfer. In both cases, I have argued that there is sufficient evidence to make a case for genocide under Article 2(e). This may be a popular claim among many Indigenous peoples, but it has little mainstream, settler appeal. In dealing with generations of Indigenous peoples forcibly stripped of their languages, ties to community, and interdependence with traditional lands, animals, plants, and waters, the Truth and Reconciliation Commission faced an extremely challenging task.