Legislatures and courts are beginning to address concerns of Indigenous children being removed from their communities through child protection and adoption agencies. The child welfare systems failed to address Indigenous children being removed from their homes and cultural backgrounds in the US and Canada. These were recognized as efforts to assimilate these children into a society that excluded various Indigenous practices and languages. 

In a recent decision by the Supreme Court of the United States, Haaland v. Brackeen, the court addressed the constitutionality of the 1978 Indian Child Welfare Act (ICWA), which incorporated a framework for prioritizing how Native American children would be placed through child welfare services. ICWA was enacted to address the issues raised above. Similarly, in Canada, the federal government has passed Bill C-92, which provides a framework for provincial governments to enact laws to similarly address the forced removal of Indigenous children from their cultural backgrounds and homes. 

This article will discuss and compare the laws and related court decisions in the US and Canada. 

Legislation At Issue: US 1978 Indian Child Welfare Act (ICWA) and Canadian Bill C-92 

In the US, the ICWA incorporated a framework prioritizing placements for adopting a Native American child. In particular, preference would be given to placements that involved the following parties:

1. Members of the child’s extended family; 

2. Other members from the tribe of the child; or 

3. Families from other Native American tribes. 

These preferences were meant to ensure that the child would have the opportunity to remain connected to their family and culture, where this was an available option. The framework specifically recognizes that the Native child ought not to be removed from their cultural background by incorporating a preference placement scheme. 

States were to adopt laws that were in line with the federal preference placement framework. 

In Canada, Bill C-92 sets out minimum requirements for provincial laws enacted to address child welfare and the adoption of Indigenous children. In particular, child family services providers and the courts, when making decisions, must follow the principles set out below:

1. Must take into account the Indigenous child’s culture; 
2. Prevention services are to be prioritized over protection services; 
3. An Indigenous child cannot be removed solely on the basis of socioeconomic conditions; 
4. Before the removal of an Indigenous child from their parent or adult family member, it is required for the child and family services provider to show that reasonable efforts were made for the child to continue to reside with that individual.

In the second stage, if an Indigenous child is removed from the care of their parents or family members, the child and family services provider must apply the following principles:

1. The best interests of the child; 
2. Cultural continuity; 
3. Substantive equality, including between Indigenous children and other children. 

When determining what is in the best interests of the child, the circumstances of the child are to be considered, and there are specific factors to be incorporated for Indigenous children in particular. For instance, it is of primary importance to find ways of ensuring that the child has an ongoing relationship with their family and their Indigenous community so that they remain connected to their cultural background. 

Both US and Canadian Legislation Rooted In Addressing Wrongful Removals of Indigenous Children 

As described, the US and Canadian legislation arose from the history and ongoing practice of removing Indigenous children from their homes and cultural upbringing. They are meant to take a step towards redressing historical injustice for Indigenous communities. 

Both sets of legislation set a federal framework for states or provinces to adopt their laws concerning child and family services in accordance with federal requirements. 

Both laws have also been challenged constitutionally, which will be described below. 

The frameworks are also different in some respects. The US ICWA sets out a precise priority sequence to be adopted to ensure that there is an opportunity for the child to remain connected with their Native American cultural background. In contrast, Canadian Bill C-92 sets out factors that provide a more flexible approach to allow for nuance when deciding. The factors also place significant importance on ensuring that the Indigenous child maintains a connection to their cultural background and family members. 

Under the Canadian framework, an Indigenous community can also request that the federal and provincial or territorial governments arrange a coordination agreement. Suppose an Indigenous community enters a coordination agreement with the Canadian federal government and a province or territory. In that case, the terms will be legally enforceable as federal law, which overrides conflicting or inconsistent federal, provincial, or territorial laws. The coordination agreement element offers an opportunity for Indigenous communities to collaborate with different levels of government and work towards ensuring Indigenous children are not removed from their cultural background. 

US Supreme Court Upholds ICWA Preferred Placement in Indigenous Communities 

Recently in June 2023, the US Supreme Court ruled in Haaland v. Brackeen to uphold the framework set out in ICWA, which prioritized placements of Native American children with their extended family members, members from the child’s tribe, or families from other Native American tribes. 

The plaintiffs argued that the provisions of the ICWA sidestepped the standard of doing what was best for the child. On other grounds, they also argued that the law was unconstitutional because it was racially discriminatory and Congress had not acted within its powers. 

Those in support of the law, including the tribes, argued that upholding the law was necessary so that Native American cultures would not be erased by a long history of unjust removal of children from their communities. 

The court did not address whether the law was racially discriminatory. Still, it upheld the law because Congress can validly make laws concerning Native Americans, even in family law. In a concurring opinion by Justice Gorsuch, he noted the significant issue of Native American children being removed from their communities which has severely impacted the ongoing existence of tribes. 

Will the Supreme Court of Canada Uphold Bill C-92?

Bill C-92 was recently challenged for being unconstitutional by the Province of Quebec. The Quebec Court of Appeal found that Bill C-92 did fall within federal jurisdiction and flowed from the Indigenous peoples’ right to self-government, which is protected under s. 35 of the Constitution Act, 1982. 

Despite this finding, the Quebec Court of Appeal concluded that it was unconstitutional for laws arising from coordination agreements between Indigenous groups, federal and provincial governments to supersede conflicting or inconsistent provincial legislation already in existence. In other words, Indigenous communities may make their laws regarding child and family services. Still, the Quebec Court of Appeal has ruled that these laws would not automatically override existing provincial laws.

It remains to be seen if the Supreme Court of Canada will agree with the Quebec Court of Appeal’s finding. 

Contact Mincher Koeman for Assistance with Indigenous Legal Matters

Our experienced Calgary lawyers at Mincher Koeman are passionate advocates for our Indigenous clients. We are dedicated to evolving Canadian law to meet present-day values that facilitate Indigenous rights. We provide creative legal solutions for various Indigenous legal matters, including child protection, guardianship, kinship, intervenor applications, funding and grants, and more. To discuss your case with a knowledgeable team member, please contact us online or call 403-910-3000.