Here is the opinion in United States v. Abouselman.
Briefs and lower court materials here.
Somehow the final passage (“royal assent”) of this bill in Canada slipped our attention back in June. Initially, we saw it referred to as a “Canadian ICWA”, but it seems fair to say that it doesn’t quite achieve that level of protection for Native children and families. If nothing else, it illustrates just how differently the Canadian government engages with the tribal nations within its borders compared to the U.S.. We want to add a large caveat, which is that none of us are experts on Canadian law or child welfare.
However, those that are put together a really helpful publication which is available here, and is well worth your read (it made us think about if ICWA would get passing grades):
From the Jurisdiction section of the report:
Why We Give the Bill a ‘D’ on this:
IN A HISTORIC FIRST FOR CANADA, the Bill purports to recognize Indigenous peoples’ inherent jurisdiction. For example, section 8(a) of the Bill affirms “the rights and jurisdiction of Indigenous peoples in relation to child and family services”. This positively worded language is also noted in the Bill’s introduction and summary. Similarly, section 18(1) states that the “inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.” Section 18(2) affirms that this right includes the right to “provide for dispute resolution mechanisms.”
As there are no section 35 cases that recognize an inherent right of self-government for Indigenous Peoples or that have recognized an Aboriginal or Treaty right over child and family services law-making, this is a significant step forward.
This is not, however, a recognition of jurisdiction that removes all federal or provincial oversight, power or intervention. By recognizing jurisdiction over child and family services as a section 35 right, the federal government immediately re-asserts its power to unilaterally infringe or limit that right, a power upheld by court cases such as Sparrow. The legislation sets legal limits in terms of Indigenous laws being subject to Charter and Canadian Human Rights Act and the BIOC. It also sets practical limits in terms of the virtual necessity of negotiating coordination agreements with the federal and provincial governments, and in the glaring absence of any provisions for funding. At best, this could be interpreted as an acknowledgment of concurrent (or shared) jurisdiction, a matter on which Bill C-92 should be more clear.
Further, section 23 states Indigenous laws only authoritative if they can be applied in a way that “is not contrary to the best interests of the child.” As previously stated, Indigenous laws have upheld the best interests of Indigenous children for thousands of years. The concern about this limit is how the BIOC doctrine has been interpreted and applied by courts, non-Indigenous governments and decisions makers to apprehend Indigenous children and separate them from their families, communities and territories for the past 50 plus years.
For one group of children in particular, American Indians and Alaska Natives, exceedingly high poverty rates have had profound impacts on community wellbeing and long-term cohesiveness. Given the best available data, from the U.S. Census data, child poverty rates among American Indians and Alaska Natives have consistently exceeded 40% for almost the past 30 years.
“Because Convention 169 commits the signatory states to guarantee the integrity of Indigenous peoples, it’s been frequently invoked by Indigenous communities and peoples, especially in Latin America, when defending their territories in court. But the Convention has clear limitations that actually jeopardize its intent.”
The Anglo-American settlers’ violent break from Britain, from 1775 to 1783, paralleled a decade of their search and destroy annihilation of Delaware, Cherokee, Muskogee, Seneca, Mohawk, Shawnee, Miami and other nations’ villages and fields, slaughtering the residents without distinction of age or gender and overrunning the boundaries of the 13 colonies into unceded Native American territories.
Link to letter here.
“I made a personal commitment to bring new leadership and a new tone to Ottawa. We made a commitment to Canadians to pursue our goals with a renewed sense of collaboration. Improved partnerships with provincial, territorial, and municipal governments are essential to deliver the real, positive change that we promised Canadians. No relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.”
Some top priorities:
The Alaska Native Women’s Resource Center, Indian Law Resource Center, National Congress of American Indians, National Indigenous Women’s Resource Center, and Native Women’s Association of Canada are co-sponsoring an event to be held during the NGO-Forum of the Commission on the Status of Women’s 60th Session.
The event will take place on Tuesday, March 22nd at 4:30 p.m., at the United Nations Church Center Chapel.
More information can be found here.
Here is the decision.
AANDC’s [Aboriginal Affairs and Northern Development Canada] design, management and control of the FNCFS [First Nations Child and Family Services] Program, along with its
corresponding funding formulas and the other related provincial/territorial agreements have resulted in denials of services and created various adverse impacts for many First
Nations children and families living on reserves.
Here is the media coverage.
This is a tremendous and long-fought victory for the First Nations and Family Caring Society, who brought the claim, and Cindy Blackstock, the executive director of the Society and incredible driving force behind the claim.