Citation:
McGillivray, Anne, "Therapies of Freedom: The Colonization of Aboriginal Childhood" (U.B.C. Legal History Papers, 1995-1)


V

THERAPIES OF FREEDOM: THE COLONIZATION OF ABORIGINAL CHILDHOOD

ANNE MCGILLIVRAY


It would be wrong to say the soul is an illusion, or an ideological effect. On the contrary, it exists, it has a reality, it is produced permanently around, on, within the body by the functioning of a power that is exercised on those punished -- and, in a more general way, on those one supervises, trains and corrects, over madmen, children at home and at school, the colonized . . . The soul is the effect and instrument of a political anatomy; the soul is the prison of the body.
Foucault, Discipline and Punish 1


BY THE LAST DECADES of the nineteenth century, childhood had become a primary locus of citizenship and the child a unit of moral exchange, severable and transformable. Canadian regimes for the reform of the dangerous child and the rescue of the perishing child (between whom little distinction was made) were imbued with an imperialism which envisioned as the highest aspiration of any child Anglo-Canadian citizenship in a Christian culture. This unitary vision of culture and accultura-tion dominated child welfare philosophy well into the twentieth century.

Nineteenth-century child welfare sought to erase the effects of wrong culture and nurture in the production of citizenship. This was a subjectivity derived less from Nikolas Rose's 'therapies of freedom', which 'align political, social, and institutional goals with individual pleasures and desires and with the happiness and fulfilment of the self',2 than from earlier technologies of freedom in which Rose's matrix of the self must be plucked from deeper matrices of culture and relatedness in order to be remade. For Foucault, it was a coercive individualization in which the family became 'the privileged locus of emergence for the disciplinary question of the normal and abnormal'.3 Where the family is 'abnormal', the child's normalization may be compulsory: the child is removed and subjected to a normalizing institutional regime. Where the abnormality to be eliminated is culture (as 'race'), normalization becomes cultural colonization, cultural genocide.4 Where normalization is to be accomplished by 'forcibly transferring children of the group to another group', with the 'intent to destroy, in whole or part, a national, ethnical, racial or religious group', it is genocide, according to the 1948 Geneva Convention on the Punishment of the Crime of Genocide .

The colonization of Aboriginal childhood created a Foucauldian carceral archipelago whose institutions include the reserve, the residential school, the child protection system, young offender facilities and jail.5 Results are seen in heightened rates of intimate violence, early death, poverty, substance abuse and, ultimately, alienation from kin and culture. Programs of assimilation were closely modelled after regimes developed to normalize or 'civilize' non-Aboriginal children. Removal of Aboriginal children for education and for protection were seen as remedies in subsequent generations for the inadequacies of the former. Education and child welfare are now, and historically have been, central sites of Aboriginal resistance to assimilation. Legacies of cultural destruction and intimate violence hold great symbolic power in the politics of self-government.

The Aboriginal peoples of Manitoba have been deeply marked by these programs of citizenship. The Manitoba experience embraces the first warnings by a government inquiry of cultural genocide in the massive apprehension of Aboriginal children, the first child protection agency managed and staffed by First Nations (Dakota-Ojibway Child and Family Services) and the first and only province-wide intertribal child welfare system in Canada. Manitoba is the first site of devolution of federal responsibility for Indian reserves from Indian Affairs Canada to First Nations government. Manitoba has gone further than any other Canadian jurisdiction in devising new regimes for the governance of Aboriginal childhood. The Manitoba experience discloses abuses of power and abdication of responsibility at every level of accountability at critical junctures of politics and culture. There has been no quick fix. Indigenous solutions, often promising and ingenious, have not overtaken official ones, nor are child protection decisions made in a context which equally accommodates the centrality of culture and the cultural destruction of child abuse.

At stake in the contested control of child welfare is childhood itself as product and repository of culture. State discourses of assimilation and counter-discourses of resistance and self-determination foreground culture in, or as, childhood and its governance.

Culture in a postcolonial context is about the construction of otherness and the inscription of difference in policy and law, a specular and often intimate relationship in which each is, to the other, alien. A 'high' or 'original' culture is lost or debased. A 'low' or 'debased' culture, having lost its utility for its Other, romantic, economic or otherwise, must be transformed. The experience of indigenous culture and of cultural colonization lies in what Certeau has called the practice of everyday life.6 Here 'culture' is less about artefact or text than about ' a way of using imposed systems' which

constitutes the resistance to the historical law of a state of affairs and its dogmatic limitations ... that is where the opacity of a 'popular' culture could be said to manifest itself -- a dark rock that resists all assimilation.7

For those caught up in Foucault's disciplinary net, everyday life 'bring[s] to light the clandestine forms taken by the dispersed, tactical, and makeshift creativity of groups or individuals' operating on a small and daily scale to constitute the 'dark rock' of resistance. Tactics of resistance insinuate themselves 'into the other's place, fragmentarily, without taking it over in its entirety, without being able to keep it at a distance.' Such tactics are shaped by and, in turn, inform strategy. In carving out defined and possessed cultural locations, strategies of assimilation are revised, discarded and reinvented. Childhood is central in strategies of assimilation, tactics of resistance and post-1980 strategies of Aboriginal self-determination which draw on the symbolic capital of the colonization of Aboriginal childhood. Childhood is indeed the 'dark rock' against which Aboriginal childsaving vessels have, for almost two centuries, foundered.

This essay is an overview of the contested governance of Aboriginal childhood in the context of the Manitoba experience. The discussion brings together disparate discourses which address the governance of childhood. I begin with a broad outline of Indian relations with Canada, a history itself contested and incomplete, in order to establish the durability of assimilation policy. To suggest parallels between the governance of Aboriginal childhood and of other children identified as endangered or abnormal, Anglo-Canadian child welfare philosophy, residential schooling and 'catch-up' department politics of post-1960 reserve child welfare are surveyed. The Manitoba system of intertribal agencies, the disciplining of those agencies and the role of culture in contested child protection cases make up the remainder of the essay. The analysis is undertaken from an Anglo-Canadian historical perspective.8

The identification of academics and similarly privileged observers with the goals and norms of another culture contributes to the social hierarchizing of cultural values by co-opting and suppressing distance and difference. 'The Bororos of Brazil sink slowly into their collective death and Levi-Strauss takes his seat in the French Academy', as Certeau observed.9 Trendy easy solutions where issues are as differently problematised in cultural terms as 'child welfare' do not advance either 'culture' or the goals of those whose culture is in question, even where observer solutions chime with cultural claims and observers adopt indigenous strategies of resistance. Certeau's fears are based on a covert agenda of 'elimination of a popular menace' which masquerades as the search for 'authentic' culture. This characterizes earlier stages of European contact with Aboriginal cultures ('The ethnologist and the archeologist arrive at the moment a culture has lost its means of self-defence') but academic identification with cultural claims also presumes 'we' know what 'they' are talking about, need and want. This imperils self-realization. What, if any, responsibility does the dominant culture have in cleaning up its mess? Is it enough for 'Whiteman' to just get out of the way? Does it make a difference if the mess is destroying the most powerless as well as the most contested constituency of The Other? Which is the greater destruction, infant body or cultural soul? and does that body or 'soul' rest in the hands of political bodies, however constituted? I cannot exempt myself from this critique or resolve its contradictions, nor can any external observer.


I. CIVILIZING THE INDIAN10

WHERE DIFFERENCE IS USEFUL, cultural interference is minimal and reciprocal.11 Where difference is a problem (as 'the Indian problem'), the choices for nineteenth-century colonial governments were annihilation, the stop-gap measure of relocation, or assimilation. This chapter is an overview of the history of Anglo-Canadian assimilation strategies and tactics of resistance which frame and account for the colonization of Aboriginal childhood.

Nineteenth-century imperialism infused the emergent sciences of cultural anthropology, criminology, phrenology and social Darwinism with particular views of determinacy and deviance. These in turn justified imperialist projects of structural and cultural colonization and provided a mythology of inevitable cultural desuetude.12

The invaders invoked certain myths to legitimize and justify the colonization, displacement, and exploitation of aboriginal peoples in the name of evolutionary progress and national development. Terms such as the 'vanishing American' were coined to describe the demographic plight of the American Aboriginal. The situation was viewed with both alarm and ethnocentric complacency, as if the extinction of aboriginal peoples were the inevitable price of 'progress' ...

The Indian did not disappear through attrition, nor did an 'obsolete' culture yield to a 'progressive' Anglo-Canadian one as the mythology predicted. The 'weird and waning race' celebrated in the poetry of Indian Affairs Superinten-dent Duncan Campbell Scott13 is now a powerful force in Canadian politics and in the politics of child welfare.

The Aboriginal population of the Americas had decreased by 1930 from a pre-contact total of about 19 million to under one million. The largest population decrease took place after 1800. By 1960, the Canadian Aboriginal population was restored to pre-contact levels14 and continues to increase at 2.5 times the national average; 58 per cent of the population is under the age of 25.15 Registered or 'status' Indians total 554,000 or 2 per cent of the Canadian population and 8 per cent of the population of Manitoba, the highest proportion of any Canadian province. There are some 601 bands occupying 2,261 reserves.16

Pre-1800 relations between European and Aboriginal peoples were based on a variety of forms of partnership. Aboriginal peoples in the new world were for the most part 'active agents of commercial, diplomatic, and military relations'.17 The waning fur trade, resolution of European hostilities and European settlement shifted relations from partnership to social (and moral) burden. Extermination of Aboriginal peoples was ruled out by Anglo-Canadian humanitarianism and lack of entrenched hostility toward Aboriginal peoples.18 The United States, by contrast, fought some 67 Indian Wars, many followed by genocide.19 Anglo-Canadian political culture, in contrast with the United States, supported a strong government role in economic and social policy, making the shift from commercial and military jurisdiction to civil jurisdiction a comparatively easy one. 'The Indian' had been exploited in times of war; he must now be reclaimed from barbarism and taught the habits of civilized life. The English Secretary of State for War and the Colonies wrote in 1830,20

It appears to me that the course which has hitherto been taken in dealing with these people, has had reference to the advantages which might be derived from their friendship in times of war, rather than to any settled purpose of gradually reclaiming them from a state of barbarism, and of introducing amongst them the industrious and peaceful habits of civilized life.

Civilization centred on two systems, the establishment of reserves to clear the path of settlement and 'gradual civilization'. Conditions of enfranchisement -- full citizenship upon revocation of Indian status -- were set out in the 1857 Act for the Gradual Civilization of the Indian Tribes in Canada, which stated that 'it is desirable to encourage the progress of Civilization among the Indian Tribes ... and the gradual removal of all legal distinctions between them and her Majesty's other Canadian Subjects'. Conditions of citizenship or enfranchisement included military service, college graduation, sale of Treaty rights and a woman's marriage to a non-Indian. A tribal leader objected to the Act as an attempt 'to break them to pieces' but the Indian Department replied that 'the Civilization Act is no grievance to you'.21 Offers of private landholding made by the Indian Commissioner, (only a handful of Aboriginal people accepted) reflected the 'policy of destroying the tribal or communist system and every effort made to implant a spirit of individual responsibility instead'.22

The terms of confederation in 1867 granted exclusive jurisdiction over 'Indians and lands reserved for Indians' to the federal government under s. 91(24) of The British North America Act . The 1869 Act for the Gradual Enfranchisement of the Indian 23 amalgamated and extended pre-confederation statutes. Individual title to reserve 'location tickets' was offered, on conditions of a three-year probation and band consent, with retention of band annuities and interests. Even on these more generous terms, few accepted. The 1876 Indian Act consolidated a variety of federal statutes in order to better govern the 'upwards of 60,000 Indians' brought into confederation, according to the 1867 Report of the Department of the Interior. In his Annual Report for 1876, Indian Affairs Deputy Superintendent General Vankoughnet trusted that many Indians will avail themselves of [the Act's] liberal provisions for enfranchisement -- framed as they were, with the object of aiding the Indian to raise himself from the conditions of tutelage and dependence; and of encouraging him to assume the privileges and responsibilities of full citizenship.

As only 57 of 90,000 Indians had been enfranchised, assimilation policies were again reconsidered. During the 1879 Indian Act debates, a Member of the House of Commons commented on the resistance to assimilation.24

The object of the [Indian] Act was to break up the Aboriginal system, but the system was endeared to the Indians by many associations, and it was the last remaining protection which they had against the capacity of the white man. They were attached to it because it was inherited from their ancestors, because it had become part of their very nature and entered, in all its ramifications, into their everyday life. They would never cease to adhere to the Aboriginal system until they ceased to be Indians.

Despite this trenchant insight, assimilation through enfranchisement remained the focus of government policy.

The 1880 Indian Act fully bureaucratized Indian mangement, enabling Indian Affairs to create Indian bands and entrenching a municipal system of band government by elected chief and council. This system had been introduced in the 1869 Act and expanded in the 1876 Act. It was intended to teach 'civic responsibility' by instituting elections, taxation and by-lawmaking powers. The system was based more on exotic fantasy about 'Chiefs' and 'Braves' -- and on bureaucratic expedience25 -- than on the traditional governments and indigenous discourses it replaced. It created petty fiefdoms in place of tribes and nations and promoted individualism over 'tribal or communist' systems. It was laid over a complex and highly functional kinship structure, inviting excesses of nepotism. It embodied a Victorian patriarchy which disregarded matriarchal governments and erased women and children from the new band politics.

Crown treaties with First Nations in what are now the provinces of Manitoba, Saskatchewan and Alberta followed the pattern set in the rest of Canada, with important differences. The southern nations of the Cree, Chipewyan, Saulteaux, Nakota (Assiniboine), Dakota (Sioux), Siksika (Blackfoot), Kainai (Blood), Piegan and Sarcee were, arguably, relative latecomers to the Prairies, the Assiniboine and Cree arriving by the late seventeenth century and the Ojibwa (named Saulteaux for their trade at the Sault Rapids) by the eighteenth century. These groups did not constitute a unified culture, linguistically or otherwise, nor were entrenched hostilities and alliances inter se obliterated by Crown Treaty, as nineteenth-century Indian policy necessarily supposed. Smallpox epidemics, United States Indian policy -- forcible relocation, war, the whisky trade, army buffalo slaughter -- blocked the route south for Plains Aboriginal peoples. Massive buffalo slaughter by hunters after hides and tongues eliminated the buffalo on the Canadian Plains, opening the way to large-scale agriculture. By the 1860s, the economy of the buffalo was over.

The tribes were under pressure to settle land claims, having lost their livelihoods and fearing for their children's lives, a fear expressed at each Treaty signing. The new Dominion of Canada required speedy resolution of land claims in order to attach the Northwest for European settlement and block United States encroachment and military action against the Indians Plains First Nations entered into the 'Numbered Treaties', beginning at Red River (Winnipeg), Manitoba, in 1871 -- the year after the Metis Rebellion and Manitoba's entry into confederation -- and ending in 1877 at Bow River, Alberta, where the last of the wild buffalo had been seen a year earlier.

The North-West Rebellion of 1885, a continuation of the Red River Rebellion and Louis Riel's mythic vision of the Metis, resulted in Riel's hanging and the deliberate crushing of the last vestiges of Aboriginal leadership by Indian Affairs. The Indians under the Numbered Treaties were now to become farmers. This assimilationist 'policy of the plough' was geared to peasant farming in a machine age. While western grain farmers bought and shared the new gigantic steam engines for the agricultural conquest of the Plains, reserve farmers worked with horse and hand tools. Reserve lands were non-mortgageable, meaning that the new technology was unaffordable. Those who succeeded as farmers were denied marketplace competition by a variety of local tactics. Where land turned out to be useful, bands were removed and resettled in more remote and desolate locations, and arable reserve lands were sometimes sold to non-Indians by the federal government. The policy of the plough was not a success.

Reserves were not viewed by Canada as Treaty entitlements or cultural preserves, but as protective holding stations until full assimilation could be achieved. This is borne out by persistent failure to meet the spirit, and sometimes letter, of Treaty terms (when ploughs wore out they were replaced not with new ploughs or newer technology but with welfare); in involuntary enfranchisement policies; and in allocations of reserve lands which were less than agreed, economically marginal and geosocially isolate. Assimilating the Indian was the 'great aim' of Canadian civilization, according to Canada's first Prime Minister, Sir John A. MacDonald, in 1887.26

The great aim of our civilization has been to do away with the tribal system and assimilate the Indian people in all respects with the inhabitants of the Dominion, as speedily as they are fit for the change.

But the speed was slow and change did not materialize. Commanding assimilation is not the same thing as achieving it.27 Indian Affairs officer Duncan Campbell Scott wrote 33 years later, in 1917,

I want to get rid of the Indian problem ... it is enervating to the individual or to a band to continue in that state of tutelage, when he or they are able to take their position as British citizens or Canadian citizens, to support themselves, and stand alone. That has been the whole purpose of Indian education and advancement since the earliest times ... Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian department.28

By 1920, only 250 people had chosen enfranchisement, although many lost status through involuntary enfranchisement.

The 1969 federal White Paper Statement of the Government of Canada on Indian Policy called for full assimilation through abolition of Treaty rights, Indian status, the Indian Act and the reserve system. Prime Minister Pierre Trudeau summarized the views of his Liberal government in 1968. Compensation for Treaty lands must be made but the 'apartness' of Indians must end.29

We have set the Indians apart as a race. We've set them apart in our laws. We've set them apart in the way governments deal with them. They're not citizens of the provinces as the rest of us are. They are wards of the federal government ... we won't recognize aboriginal rights. We will recognize treaty rights ... It's inconceivable, I think, that in a given society one section of society has a treaty with the other section of society. We must be equal under the law ...

To solicit Aboriginal support for the proposals, Indian Affairs established and directly funded -- and continues to fund -- the National Indian Brotherhood, since 1980 the Assembly of First Nations, and constituent provincial all-chiefs associations. Assimilation was vigorously opposed by these associations. The last official vestiges of overt assimilation were abandoned in 1973 in face of resistance by organizations created and paid for by Indian Affairs. Increasing political activism focused on recognition of Treaty obligations and cultural rights. By the late 1970s, the foremost 'cultural right' had become control of childhood through control of education and child welfare.

By order-in-council signed 22 November, 1994, Manitoba became a testing-ground for self-government. The framework agreement commits Canada to dismantling Indian Affairs powers, recognizes the inherent right of First Nations to exercise full government powers, legislative, judicial, executive and administrative, and in effect creates a new level of government.30 Local control is the ultimate aim, with bands setting their own pace for block funding and self-government within the framework of the agreement. Before this can take place, financial management will 'devolve' not to the bands created by Indian Affairs or to the original Nations which signed the treaties but to a political organization created by Indian Affairs, the Executive of the Assembly of Manitoba Chiefs, which will progressively 'devolve' control to the bands. This may be the first step to self-government. It may represent a new sort of assimilationism, as traditional relations between status Indian and Crown are progressively severed.31 Canada, or at least Manitoba, stands at a critical nexus in which self-government may become the reality consistently claimed through centuries of European contact.

After a century and a half of active assimilation policies, Aboriginal peoples in Canada remain a fourth world within, yet unabsorbed by, a first-world nation, culturally distinct and politically active. They did not, however, remain unmarked by the experience. Whatever the forces shaping perceived characteristics of the Indian, Aboriginal adults had proved intransigent to manipulation on the scale needed for effective assimilation.32 The focus of transformation shifted in the latter part of the nineteenth century to Indian childhood and to Anglo-Canadian technologies of normalization.


II. CIVILIZING CHILDHOOD

EIGHTEENTH-CENTURY UTOPIAN CONSTRUCTS of innocence uncontaminated by civilization made the 'noble savage' a cognate of childhood. As Sir Hector Langevin observed during the 1876 Indian Act debates, 'Indians were not in the same position as white men ... they were like children to a very great extent. They, therefore, required a great deal more protection'.33 Nineteenth-century assimilation policies infantilized the Indian, remaking the adult in the image of childhood. Indians were in law state wards under the Indian Act , confined to the reserve, subject to protectionist policies (Indian agents, pass systems, liquor prohibitions),34 forbidden religious and cultural practices,35 subjects of projects of improvement, objects of pity, finally welfare-dependent.

The equation of Aboriginal peoples with childhood and dependency in English foreign policy was reflected in two reports: the 1834 Report from His Majesty's Commission for Inquiring into the Administration and Practical Operation of the Poor Laws and the 1837 House of Commons Report of the Select Committee on Aborigines . The Select Committee was concerned with 'Native Inhabitants of Countries where British Settlements are made ... to promote the spread of civilization among them', while the Commission on the Poor Laws was concerned with problems of the outcast closer to home. Both reports provided for special overseers or protectors, proposed training programs aimed at low-level employment and emphasized assimilation of their respective target groups into the larger society. Both reports stressed childhood and the need to educate, civilize, and bring into Christianity the young pauper or Aborigine. As the Select Committee on Aborigines noted, 'True civilization and Christianity are inseparable: the former has never been found, but as a fruit of the latter.'

If the adult 'Aborigine' was infant-ilized in the process of assimilation, the child was literally to be pressed into its service. This arose from a series of changes in Anglo-Canadian ideas about the governance of childhood. This chapter introduces these ideas, taking as illustration two childsaving projects which shared the civilizing vision which came to centre on Aboriginal childhood: the English child migration movement and the Winnipeg Home of the Friendless.

Childhood is both focus and creation of civilization, a life stage dedicated to the inculcation of a sociospecific citizenship. By the close of the eighteenth century, childhood had fully emerged as a legally and socially distinct life estate and numerous European constructs of childhood were extant.36 By the last third of the nineteenth century, childhood was identified as both social problem and locus of charitable and state projects of citizenship. The health, welfare and rearing of children, as Rose observed, was 'linked in thought and practice to the destiny of the nation and the responsibilities of the state',37 an association which was to make childhood 'the most intensively governed sector of human existence'. In the late nineteenth-century shift from govern-ment of the family to governance through the family,38 the child became a symptom of relational problems within the family and between family and state, a major point of entry into the family for the new complex of family-oriented tutelary disciplines and agencies empowered to remove children from 'abnormal' environments. Intervention and removal primarily affected families of marginal social status, while expert tutelage, being 'voluntary, was to have a broader impact. Childhood was, in effect, colonized by the state.

The governance of childhood was aimed at the induction of a docile citizenship, the creation of a disciplined soul. What motivated the 'great project', Rose argues, was not the 'repressive desire for surveillance and control' initially posited by Foucault. It was, rather,

a profoundly humanistic and egalitarian project, one that searched for the causes of failure of citizenship and sought to provide the knowledge that was to ensure the extension of the benefits of society to all its members.39

Where the 'members' had no perception of themselves as such, and no desire to join, this humanistic project of reform might well be perceived as 'repressive surveillance'.

The shift in relations between 'childhood' and state was reflected in the massive expansion of child welfare powers and programs in late nineteenth-century Canada.40 The province of Manitoba, carved out of the North-West Territories in 1870, based its child welfare legislation on that of Ontario. The Ontario Humane Societies Act had been amended to give animal protection groups the power to remove children from the lawful custody of parents and guardians for neglect or mistreatment ( qua the New York Mary Ellen case) but the need for separate societies and legislation became apparent. Canadian child law reformer J.J. Kelso wrote in his diary 10 January, 1890, 'The difficulty is cropping up of keeping the animals and children from clashing, the two having their separate and distinct friends'.41 Ontario legislation was appropriately amended and Manitoba followed suit, instituting a system of quasi-charitable Children's Aid Societies in 1891 and enacting its Child Protection Act in 1898. (The Children's Aid Society model is extant in Manitoba and Ontario but was never adopted by provinces further west.)

The spate of reform continued in Manitoba, as elsewhere, into the next century. In place of a single statute based on the Tudor Poor Laws (the Manitoba Apprentices and Minors Act , 1877), there were by 1913 a multitude of statutory provisions in Manitoba empowering agencies to apprehend children for parental delict (neglect and abuse, immoral conduct) and delict of the child (vagrancy, truancy, expulsion from school, petty crime, exposure to immorality). The apprehended child would be placed in a normalizing environment, at first the industrial school; later, under the Kelso family model, in a foster family. By the 1920s, child welfare philosophy was moving away from child apprehension and institutional regimes, instead favouring family therapy and family-based settings.42 Professional social workers and university-based experts were replacing the charitable amateur, to become the new 'owners' of child welfare. To honour the new therapeutic commitment, 'child protection' was renamed 'child and family services'.

The new childsaving, despite the renaming, shared much with the old.

Despite the advancement of new ideas and procedures, the ultimate goal ... remained unchanged from that of earlier generations of middle-class child-savers: to avoid present and future expenditures on public welfare and to guarantee social peace and stability by transforming dependent children into industrious, law-abiding workers.43

The new expertise legitimated the middle-class bias of child welfare established by nineteenth-century moral crusaders and poor and non-anglophone families continued to be singled out. The new agencies and experts defined the normative family according to certain assumptions,

first, that the natural, inevitable, and highest form of the family is a particular type of household arrangement -- a nuclear unity comprising two adults in a monogamous, heterosexual, legal marriage, and their dependent children; second, that the family is premised on the biological or sexual division of labour that gives each member a different, but complementary, role with attendant obligations; third, the family is a private haven that operates on the basis of consensus as opposed to the public sphere of the marketplace where competition and conflict prevail.44

The construct has central implications for Aboriginal child welfare: it omits the childcare networks of kith and kin which function in pre-industrial societies to intervene in times of difficulty and provide alternate caregiving45 and it ignores the complex extended-family structure of original societies. It is a monolithic construct46 tailored to justify state intervention in 'abnormal' families.

Canadian child welfare philosophy prior to the Second World War was imbricated in a social Darwinism which read into 'survival of the fittest' a Canadian imperialism aspiring to equal partnership with England in the Empire.47 The Canadian social purity movement embraced this vision of citizenship in its therapeutic focus on cleanliness and purity, medical and moral hygiene. The movement evangelicized a nativism which excised Aboriginal peoples from the Canadian landscape and viewed childhood as a blank slate upon which could be inscribed a chosen character. While the child might be irredeemably tainted by parental shortcomings, ethnicity or race, the enterprise, due to much confusion about eugenics and determinism, was nonetheless worth the try. Child welfare in the age of moral hygiene was characterized by an 'unabashed' interventionism in which sociology and religion formed a seamless web: 'the perfect sociology, perfectly applied, will realize the Kingdom of God on Earth'.48

The English child migration movement exemplified the imperialist project of citizenship and provides parallels to the 'normalization' of Aboriginal children. Beginning in 1618 with a group of 'orphaned and destitute' children sent from England to Virginia and lasting 350 years, 150,000 British children aged four to fourteen were exported to the colonies for apprenticeship as farm and household labourers.49 Two out of three were sent to Canada, the 'healthiest' colony, between 1870 and 1925 in the evangelical entrepreneurship of such Victorian childsavers as 'Dr.' Thomas Barnardo and the infamous Maria Rye. Under banners of Empire and child-saving, health and opportunity, children were exported to save public welfare costs and costs of future delinquency, and to fill colonial needs for cheap labour and English stock. Fear of uncivilized children was also a motive. A contemporary poem urged, perhaps tongue-in-cheek,50

Take them away! Take them away!
Out of the gutter, the ooze, and the slime,
Where the little vermin paddle and crawl
Till they grow and ripen in crime.

The conclusion reflects nineteenth-century beliefs in the restorative powers of the New World: 'The new shall repair the wrongs of the old.'

At least two-thirds of child migrants were not orphans, as the public and the publicity supposed, but children placed in institutional care, primarily by parents and often on a temporary basis, and exported without consent. Many lost all contact with family. Despite sharing a language and 'mother' culture with the colonies which received them, the children experienced cultural disorientation, discrimination as the 'offal of the most depraved characters in the city of the old country', much physical and sexual abuse, emotional loss and inadequate and sometimes deadly living conditions. Moral panics circled about the child migrants. 'Much crime, drunkenness and prostitution was seen as a result', wrote a late nineteenth-century Winnipeg correspondent, although the Winnipeg Free Press observed that most of the 'crimes' in question were committed by local children. Labour unions complained that the child migrants were driving the working man out of the workplace.51 The children were morally and genetically unfit to associate with Canadian children, wrote the prestigious Dr. Kenneth Clarke after sharing a train with a new shipment. 'In Canada we are deliberately adding to our population hundreds of children bearing all the stigmata of physical and mental degeneracy' and the govern-ment should be held criminally liable. The 1893 'Highways and Hedges' magazine of the English National Children's Homes Society was in accord.

For some of them are of poor human material; their constitution -- physical and mental -- is of inferior texture; they are naturally deficient in force of character and moral stamina; their antecedents were once vicious or at least unpromising; the sad entail of hereditary weakness or wickedness makes these unfortunate juveniles peculiarly the objects of our compassionate and continuous care ... Canada is no place to shoot rubbish. It is a magnificent British colony waiting for development ...

The majority of children were sent to Ontario and Manitoba and were a common feature of rural life.52 These provinces not being places 'to shoot rubbish', restrictive legislation was enacted in 1897 which prohibited, under penalty of a fine of $100 or 3 months' imprisonment, immigration of any child

who has been reared or who has resided amongst habitual criminals, or any child whose parents have been habitual criminals, lunatics or idiots, or weak-minded or defective constitutionally or confirmed paupers, or diseased ...

Canada stopped accepting the children in 1925 due to new and more expensive ideas about child welfare management (vetted placements and follow-up visits, for example) at the onset of the Depression.53 These new ideas about child welfare were not without their opponents on the homefront.

The Winnipeg Home of the Friendless, an evangelical 'Christian refuge of last resort' for 'orphaned or destitute' children and unwed mothers, was founded and run by Kansas evangelist Laura Crouch from 1900 to 1929. The Home was exempted from child welfare legislation by certificate of incorpora-tion in 1913, a timely move as provincial powers of investigation and apprehension were reaching a temporary zenith. Empowered to refuse direct access of any 'person or agency' (including parents) to child inmates, and toapprentice or adopt out any child without consent of child or parent, the Home was privately funded by a wealthy grocer (Crouch testified she began operation with $5.00 and prayer provided the rest), held impressive rural and urban properties and operated two farms run on child labour.54 Sixty-three former inmates testified before a provincial inquiry to beatings with straps, laths and switches -- some 'for cause', others ritual; to fear and intimidation, inadequate diet, isolation in cellars for up to four weeks at a time, 15 to 20 hour workdays, badly crowded dormitories, forced religious observance (Crouch evangelized a doomsday 'holy roller' cult), lack of medical help and inadequate education. All complaints were dismissed.

Those who managed the Home were 'extremely earnest Christian people' while 'retrospective recollections of happenings in youth are apt to be distorted, unduly favorable or the reverse', wrote Deputy Minister of Education Dr. Robert Fletcher in his 1927 report. The corporal punishment described by witnesses was deserved, exaggerated or fabricated. Fletcher mused on the religious benefits of such punishment.

Notwithstanding that physical punishment is no remedy at all for the disease of mind and body complained of, we are further impressed with the religious possibilities in the matter. The strictest mentor is he or she who lives by the letter rather than by the spirit ... The true object of all punishment is to reform the mind of the victim.

Fletcher viewed the conflicting views expressed before his inquiry -- 'Social investigators claim to have been refused admission to the premises, the Home officials say they have been spied upon' -- as conflicts of ideology caused by a 'fundamental difference in policy' between the new social work and the religious mandate of the Home.

Social workers today have as objective the placing of every homeless child with a family in a home with adoptive or foster parents ... The Home of the Friendless is conducted on diametrically opposed lines. It is not only an institutional home for children but also it endeavours to absorb those children for life as workers ... and in the religious work [of the Home] ...

Fletcher was sufficiently impressed by Crouch and her staff that he recom-mended that the Home continue operation and be given a tax bailout by the province. This was not done. The Home was closed in 1929 for failure to pay taxes. Its huge property holdings -- 'The farm equipment alone is large even in western conception' -- became the object of a series of disputed property grabs by city and province. The children were seized by provincial authorities. Crouch took the remainder of her flock to British Columbia, where her Burnaby operation was shut down ten years later amid similar controversy.

The history of the Home of the Friendless illustrates the endurance and sanctioning of the nineteenth-century institutional model well into the Progressive Era of professional childsaving and foster care. It further illustrates inadequacies of the new child welfare legislation and philosophy. Children's Aid Society workers had attempted over a ten-year period, without success, to gain access to Home records and child inmates. Questions were raised in the Manitoba legislature. Affidavits of former inmates were taken by Percy Paget, Chair of the Board of Welfare Supervision and it was these, together with the direct testimony of former inmates, which formed the basis of evidence before the inquiry. Claims of inadequate educational curriculum rather than of child maltreatment may have finally attracted government action, as child welfare and education were a single department at the time. The Fletcher report did recommend that 'no new child-caring institution be permitted to commence operation in Manitoba until it shows itself willing to subscribe to ... lawful Government requirements'.

The Home's practices of isolation, corporal punishment, child labour, minimal education, regimentation, evangelicism and cultural devaluation -- many of its inmates were the children of immigrants -- illustrate strategies for the governance of childhood which disabled distinctions between corporal punishment and abuse, child labour and exploitation, minimal education and inadequate education. These distinctions were unclear even to government policy-makers, as the competing views of Fletcher and Paget demonstrate.

Child migration and the residential schooling exemplified in the Home of the Friendless were designed to normalize childhood by instilling values of Anglo-Canadian Christian citizenship in the children of the poor. The fact that they were challenged by the 'new' childsaving of the first decades of the twentieth century illustrates competing modes of child management -- foster care and family support versus the orphanage, industrial school or reforma-tory; family model versus institutional model -- rather than a fundamental disagreement with earlier technologies of transformation and normalization. The perishing child and the dangerous child were to be reformed by corporal punishment, regimentation and surveillance, isolation from kin and culture, cultural devaluation, religious indoctrination, education tailored to social status and child labour, whatever the model. These technologies were appropriated for assimilating the Aboriginal child. Indian residential schools were closely modelled on mainstream nineteenth-century institutional regimes for normalizing childhood. Like the Home of the Friendless, Indian residential schools escaped the attentions of the new childsaving by virtue of an insulating legal regime.


III. EDUCATION AND NORMALIZATION: THE RESIDENTIAL SCHOOL

ABORIGINAL PARENTING PRACTICES shocked early observers. The Jesuit missionary Le Jeune spent the winter of 1633-34 with the Montaignais, a Quebec Algonkian people linguistically and culturally related to the Plains Cree. His observations of Aboriginal childhood point to an unusual freedom to experiment, inclusion in the adult activities of the community and, worst of all, no corporal punishment but only a single reprimand as a last resort. Le Jeune concluded that removal from family and tribe was essential to the institution of a proper educational regime. In his imagined regime, the children would have a period of complete freedom to accustom them to the pleasures of European food and clothing such that 'they will have a horror of Savages and their filth'. A disciplinary regime, with appropriate corporal punishments, would then be introduced.55 Le Jeune's was perhaps the earliest example of a normalization scheme for Aboriginal childhood based on residential schooling and corporal punishment. This chapter is a brief survey of Indian residential schooling in Canada.

The foundations of a mission school which would board Aboriginal children at Red River were laid by Hudson's Bay Company chaplain John West on his arrival at the trading post of York Factory in August 1820.56 West was immediately impressed with the need for his services. The 'corrupt influence and barter of spirituous liquors at a Trading Post' made it 'pecu-liarly incumbent upon me to seek to ameliorate their sad condition, as degraded, emaciated, and wandering in ignorance'. Further, 'some spoke of impossibilities in the way of teaching them Christianity or the first rudiments of settled and civilized life'. West had a ready answer for this problem on his first contact with the new world and its indigenous inhabitants. The answer was childhood.

If little hope could be cherished of arresting the adult Indian in his wanderings and unsettled habits of life, it appeared to me, that a wide and most extensive field, presented itself for cultivation in the instruction of the native children. With the aid of an interpreter, I spoke to an Indian called Withawee-capo, about taking two of his boys to the Red River Colony with me to educate and maintain. He yielded to my request; and I shall never forget the affectionate manner in which he brought the eldest in his arms, and placed him in the canoe on the morning of my departure ... I considered that I bore a pledge from the Indian that many more children might be found, if an Establishment was formed in British Christian sympathy, and British liberality for their education and support (15 August, 1820).

West sought Hudson's Bay Company support for his 'Establishment'. His argument was not based on Christian sympathy for the noble savage but, more cleverly, on the threat to social order posed by deserted 'Half Caste children' who must 'equally claim the attention of the Christian Philanthropist with those who are of pure Aboriginal blood'.

I have suggested to the Committee of the H.B. Company the importance of collecting and educating the numerous Half Breed children, whose parents have died or deserted them, and who are found running about the different Factories in ignorance and idleness. Neglected as they hitherto have been, they grow up in great depravity, and should they be led to "find their grounds" with the Indians, it cannot be a matter of surprise, if at any time collectively, or in parties they should threaten the peace of the country and the safety of the Trading Posts (12 August, 1822).

This was an astute appeal to the widespread fears of unmediated childhood which propelled nineteenth-century evangelical childsaving.

Parents posed a problem. Like Le Jeune before him, West saw the need to separate child from mother culture and from the mother.

[T]he last two Indian Saulteaux boys have given us a little trouble in disciplining them to the school, from the mother living constantly about the settlement, and occasionally visiting them, when they have run off with their sisters to the wigwam (20 April, 1823).

This convinced him that 'it is far better to obtain the children from a distance, as those who are in the school and at a distance from their parents soon become reconciled to the restraint, and happy upon the Establishment'.57 West returned to England disappointed by the failure of the Hudson's Bay Company to support his efforts. His Mission, however, was not lost.

The 1842 Bagot Commission recognized the difficulty of assimilating Aboriginal children who remained in contact with families. The Commission recommended as antidote the establishment of farm-based boarding schools far away from parental influence and interference. Residential schooling was approved by the Upper Canada Chiefs gathered at Orillia in 1846 who agreed to pay one-fourth of their annuities for 25 years in support of the school, although they objected to its assimilationist agenda. The system was extended in Upper Canada in the 1850s and 1860s. The Indian Department sent lawyer-journalist Nicholas Davin to investigate the United States model of 'aggressive civilization' which removed Plains Aboriginal youth 'from the tribal way of life' for industrial school training. Davin's 1879 Report on Industrial Schools for Indians and Half-breeds reflected the Bagot Commis-sion conclusion that the schools worked best when farm-based and church-run.

The Canadian system was designed for Indian Affairs by Egerton Ryerson, Chief Superintendent of Education for Upper Canada. Ryerson led the campaign in the latter half of the nineteenth century for the establishment of a system of free universal compulsory education which would, he believed, create social cohesion by inculcating a common morality. Ryerson objected in principle to industrial schooling, as it segregated the children of the poor, but conceded it would do for the 'worst' children. These presumably included Aboriginal children. His- 'Indian industrial schools' 'were to give [the Indian] a plain English education adapted to the working farmer and mechanic' and would include a strong Christian component because 'nothing can be done to improve and elevate [the Indian's] character without the aid of religious feeling'. The schools were to be joint undertakings of the federal Indian Department and major Christian denominations, supported by contributory child labour.

Although the precedent system of small mission schools like West's proposed 'Establishment' continued, Indian Affairs policy shifted in favour of industrial and boarding schools (a distinction dropped in 1923 for the term 'residential school'). Beginning in the 1880s in fulfilment of the Numbered Treaty obligations to educate Indian children, the residential school system expanded throughout the Northwest, the former territory of the Hudson's Bay Company and West's original mission. West's 'Half-breed children' had no place in official Indian policy. In total, 80 schools were constructed, most in the Prairie region. Between 1901 and 1961, the percentage of registered Indian children enrolled in residential schools fluctuated between 12 per cent and 37 per cent. In 1936, 42 per cent of Manitoba Indian children were registered in a residential school. This compares with 3 per cent in Quebec, 36 per cent in Ontario, 77 per cent in Saskatchewan, and 98 per cent in Alberta.58

The schools were to be located as far as possible from the Indian bands. As a member of Parliament explained in 1883,59

[i]f these schools are to succeed, we must not have them too near the bands; in order to educate the children properly we must separate them from their families. Some people may say this is hard, but if we want to civilize them we must do that.

Children between the ages of three or four and 14 were taken from their parents and 'villages', by now 'reserves', to schools hundreds of kilometres away. Their hair was cut or shaved off, they were separated by age and gender, denied sibling contact and given new names. The curriculum consisted of morning classes, rarely above a grade 3-5 level, with field or house work for the rest of the day. Only English speech was permitted, reflecting conscious assimilation and unconscious racial superiority. The poet Matthew Arnold, then British Inspector of Schools, had written in 1852 of the link between language and empire.60

It must always be the desire of a government to render its dominions, as far as possible, homogenous. Sooner or later the difference of language ... will probably be effaced ... an event which is socially and politically desirable.

A similar philosophy underlay residential school policy. Speaking an Aboriginal language was prohibited or severely restricted and punishment for infraction could be severe.61 The efficacy of a residential school education depended equally on removal from family and culture, and on 'precept and example'. According to the 1889 Indian Affairs Annual Report,62

The boarding school disassociates the Indian child from the deleterious home influences to which he would otherwise be subjected. It reclaims him from the uncivilized state in which he has been brought up. It brings him into contact from day to day with all that tends to effect a change in his views and habits of life. By precept and example he is taught to endeavour to excel in what will be most useful to him.

Removal of children from 'the demoralizing and degrading influence of the tepees', as the Calgary Herald rather crudely put it in 1892, was necessary to the program. But a Presbyterian missionary wrote home in 1903 that the schools were no more than an attempt 'to educate & colonize a people against their will'.63

Nineteenth-century imperialism was carried into twentieth-century Indian Affairs policy under the stewardship of Duncan Campbell Scott, whose service lasted from 1878 to 1932. By 1909, assimilation was becoming less 'aggressive' due to cost, tactical resistance and the successful marginalization of Plains Indians. The path of Prairie settlement having been cleared, the path of assimilation was less important and citizenship through protective segregation -- a slower assimilation -- now became the justification for continuing the Indian Affairs policy of apartheid. Scott, mid-career as Indian Affairs Superintendent of Education, wrote of the change in 1909.64

The government and the churches have abandoned, to a large extent, previous policies which attempted to 'Canadianize' the Indians. Through a process of vocational, and to a smaller extent academic training, they are now attempting to make good Indians, rather than poor mixtures of Indians and whites. While the idea is still Christian citizenship, the government now hopes to move towards this end by continuing to segregate the Indian population, in large measure from the white races.

Despite a gradual relaxation of policy -- newer schools were located closer to the bands; language restrictions were eased -- resistance to schooling increased. In summer breaks, familial and cultural norms were confusingly reasserted. Some children had lost their Aboriginal language and skills but by summer's end had lost their English. Children resisted by speaking their own languages, playing truant or avoiding the Indian agent who collected children at summer's end. A few engaged in acts of violence or arson. Parents resisted, visiting against the rules (one Saskatchewan school built a sleeping porch for parents, to the consternation of the Bishop), withdrawing children because of corporal punishment practices, removing instructors for physical or sexual abuse, boycotting schools with overt assimilationist policies, fighting for the establishment of schools which would give their children a European education without Christian indoctrination, refusing to enrol their children without assurance of non-conversion. Although an 'English' education was sought and valued by Aboriginal peoples who recognized the inevitability of change, assimilation was consistently rejected.

Some children may have been assimilated, depending on how success is here defined. Certainly the schools produced children who had learned enough for effective resistance and who became twentieth-century social and political leaders -- 'the most promising pupils are found to have retrograded and to have become leaders in the pagan life of the reserves', Scott wrote in 1913. Up to one half of all children enrolled prior to 1914 never went home. Indian Affairs medical officer P.H. Bryce reported in 1912 that 'It is quite within the mark to say that fifty per cent of the children who passed through these schools did not live to benefit from the education which they received therein'.65 There are rumours of unmarked graves behind residential schools, said to hold the infanticided offspring of nuns.66 If such graves exist, it is probable that they hold the unclaimed bodies of child victims of tuberculosis. The disease was spread in the stifling conditions of crowded and airless dormitory life during the long harsh Prairie winters and by the English love of brass bands, the instruments being vectors of the disease. 'TB' sanitariums still dot the Prairie landscape. These child deaths were an unforeseen example of resolving 'the Indian problem' by extermination, not by war, genocide, starvation, ignorance or neglect, but by 'doing good'.

Other children graduated to a life which did not accommodate their skills and whose skills they had lost. The non-nurturing attentions of instructors, early and prolonged separation from parents and siblings and the experience of institutional life did not teach residential school pupils either Aboriginal or Euro/ Anglo-Canadian parenting norms. Corporal punishment, a longstanding feature of European education,67 was an important part of the regime and came to symbolize the cultural and social destruction of the residential school experience. Some schools had a 'discipline officer' whose rod required a certain number of weekly strokes.68 William Clarence Thomas, Superinten-dent, Peguis School Board, told the Kimelman Inquiry in 1985 that69

[o]ne school principal in Brandon used to call us God's children three times on Sundays at the three services and the rest of the week call us dirty little Indians. No one ever told us they loved us. We were mere numbers. Strapping, beatings, hair cut to baldness, being tethered to the flag pole, half day school with unqualified tutors, and slave labour the other half ...

Janet Ross told the 1991 Manitoba Aboriginal Justice Inquiry that

[t]he boarding school is where the alienation began. Children were placed there, plucked out of their homes. The bond between parents and children was fragmented severely - some lost forever... The boarding schools taught us violence. Violence was emphasized through physical, corporal punishment, strapping, beatings, bruising and control. We learned to understand that this was power and control.

Many children were sexually abused by teachers and clerics or by older children who had been similarly abused; most were controlled through abasement, cultural devaluation, humiliation and corporal punishment. The Aboriginal Justice Inquiry summarized the experience as one 'marked by emotional, physical and sexual abuse, social and spiritual deprivation, and substandard education ... Aboriginal communities have not yet recovered from the damage.'70 Sexual use of children, corporal punishment and damaged parent-child bonds, recognized precursors of abuse, infiltrated reserve childhood. Economic disintegration leading to apathy and substance abuse provided the conditions of neglect and an environment in which child abuse as defined by child welfare policy and legislation could flourish.

The residential schools were maintained far beyond their time, when child welfare policy had moved toward family-centred solutions and interventions were at least overtly based less on class and 'race' than apprehension of harm. The project 'failed dismally' due in large part to Indian resistance71 and the last schools (excepting a few which were turned over to First Nations management) were closed in the 1960s. The dream of empire which fuelled the assimilation of Indian childhood, as it fuelled assimilation of the children of poor and the marginalised through child migration and nineteenth-century child welfare, backfired. The imperialist mission of reconstructing Indian childhood on an Anglo-Canadian model made residential schooling an important symbol of assimilation and cultural destruction. A second system has emerged as an equally powerful symbol: of cultural genocide: the twentieth-century child protection system.


IV. DOMINATION AND RESISTANCE: CHILD WELFARE

STRATEGIES OF ASSIMILATION which focussed on the colonization of Aboriginal childhood inspired a variety of tactics of resistance and the agenda of self-determination. Band organizations in Saskatchewan and Manitoba chose two arenas of self-government to be forged out of the unique constitu-tional relationship of Indians with Canada and the provinces. These are control of education funding, including reserve day schools, high school and post-secondary school funding, and child welfare.72 Child welfare control was the more far-reaching and the more emotive. The argument for band control of child welfare is multi-tiered. On the first level are arguments based on genocide and cultural survival. Children are a people's hope for the future. Children removed from their cultural matrix lose their own culture and represent an incalculable loss to their original cultural groups. This is cultural genocide. On the second level are arguments based on the child's interests. A healthy self-concept requires rearing by like parents for transmission of cultural identity. The 'bicultural' child belongs to neither culture and will fail to develop the ethnic pride which protects against racism. On the third level is the end to which Aboriginal control of child welfare is a means: self-government.73

The problematic politics of shared federal-provincial responsibility for Indian child welfare, the unsatisfactory and sometimes deadly provincial intervention record and the adopting-out of thousands of Indian children to non-Aboriginal families created a climate in which every form of intervention by any agency, however constituted, is 'child abuse'. The moral and political valence of child abuse in its post-1960s reconstructions, and the confusion and guilt surrounding Indian child welfare management, have made child welfare control the leading argument for self-government.74

The 1867 British North America Act granted exclusive federal jurisdiction over 'Indians and lands reserved for Indians' and exclusive provincial jurisdiction over child welfare. Provincial child welfare agencies had no jurisdiction on reserve. Reserve children at risk were cared for by relatives, sent to residential school or placed in an alternate reserve home by the federal Indian Agent.75 Post-Second World War agency expansion and the increasing visibility of Aboriginal peoples as a result of population increase, northern development, urban migration and political resistance brought Indian child protection to mainstream attention. In 1947, the Canadian Welfare Council and the Canadian Association of Social Workers presented a brief to the Parliamentary Subcommittee on the Indian Act . The brief described inadequate living conditions and lack of comparable social services to reserve children, and condemned residential schooling. The practice of Indian adoption, the Council noted, 'is loosely conceived and executed and is totally devoid of the careful legal and social protection afforded to white children'.76 The brief officially ended the silence imposed by federal Indian policy. The federal government responded by amending The Indian Act .

S. 88. Subject to the terms of any treaty and any other act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act ...

This gave the provinces the required constitutional authority to provide protection and adoption services to children on federal Indian reserves.

The provinces were reluctant to extend cost-intensive child protection programs onto reserves -- understandable in face of the remoteness, culturally and physically, of many -- and so continued to claim federal responsibility for reserve child welfare.77 The 1966 Indian Affairs Hawthorn Report described conditions for Indian children as 'unsatisfactory to appall-ing'.78 Later that year Indian Affairs signed cost-sharing agreements with the provinces for reserve child welfare. Aboriginal peoples were not consulted and no allowance was made for agency protection of culture and language or for employing Aboriginal child protection workers. As assimilation remained a federal goal until the demise of the 1969 Trudeau White Paper, the omissions are unsurprising. In Manitoba, as in other Prairie provinces, a patchwork of service delivery was put in place. The Children's Aid Societies of Central, Eastern and Western Manitoba contracted with the federal government for service provision to 14 southern bands. This left northern reserves, and the majority of registered Manitoba Indians, eligible only for life-and-death intervention.

Protective apprehension of Indian children was essentially a smash-and-grab operation, strongly resisted.79 Failure to intervene early and provide family support, and a system bias in favour of apprehension and permanent placement, meant that few children were returned to their families. Families might be told nothing of what happened to their children; children might be returned a year later without explanation or not returned at all. Clear cases of abuse were overlooked with tragic results for the children concerned; children were apprehended in 'cases' resulting from cultural confusion: 'There were horror stories both ways'.80 By 1976, 6.5 per cent of reserve children were in care. By the late 1970s to early 1980s, one in seven status Indian children were not in parental custody and one in 21 spent a significant period of childhood away from home.81 The number in care dropped to just over three in 100 or 3.2 per cent by 1987, in the overall decline of children in care, but the rate was still four times that of non-reserve children, of whom 0.8 per cent were in care.

Adoption was the ideal fix. Adoption by legislation was a relatively recent addition to case disposition alternatives available to agencies. Provincial adoption law and policy forged shortly after the turn of the century was geared to concealment of adoption. The legislation recreated childbirth and rewrote genealogy by extinguishing prior records and entitlements of the child 'as though the child were a child born to the adopting parent in lawful wedlock'. Policies favoured adopters who most closely approximated the normative family: nuclear, financially comfortable, of child-bearing age, heterosexual and, usually, white and middle-class.82 There was little interest in transracial adoption unless 'race' was disguised by light skin and eyes.

By the late 1960s, the situation had changed. The adoption market could no longer supply 'like' children to prospective adopters due to decreased birthrate and an increase in white single mothers, who had supplied the market, keeping their babies. The United States civil rights movement stimulated interest in transracial adoption and 'exotic' children.83 For Aboriginal children seized under new provincial mandates, transracial adoption was the perfect, and politically trendy, solution.

Early warning of cultural destruction by adoption policy was sounded by the Report of the British Columbia Royal Commission on Family and Children's Law 1975.84

The Adoption Act is sometimes viewed as one more weapon employed by white society to destroy the Indian culture. It is seen as a means of taking away the right of Indian bands to take care of their own children and as a means of placing Indian children in white homes where they would lose contact with their own race.

Agencies were confronted with fourth-world living conditions and the legacies of institutional abuse and economic deterioration which visibly injured and killed children. Agency access to reserve children was compromised or denied by geography, culture and a legacy of profound anger. Budgets were limited. The therapeutic family model to which agencies aspired was inoperable under such conditions. Smash-and-grab apprehension seemed necessary and inevitable. Despite warnings of cultural destruction, agencies in Western Canadian provinces mounted aggressive advertising campaigns focused on the transracial adoption of Aboriginal children through the 1970s and early 1980s. Between 1971 and 1981, over 3400 Aboriginal children -- 70 to 80 per cent of whom were Manitoba status Indian children -- were adopted by non-status parents.85 In 1981, 38 per cent of status Indian children and 17 per cent of Metis children placed for adoption in Manitoba were sent to the United States86 where Canadian Aboriginal Indian children found a better market (African-American children similarly found a better market in Canada, on a much smaller scale). Manitoba agencies, flushed with success, continued to make extra-provincial placements long after the practice was terminated in other provinces.

Extra-provincial adoption negated agency follow-up. The child's contact with birth culture was prevented by adoption confidentiality and geocultural distance. Those adopted children who made their way back to their Manitoba home reserves found transition difficult.87 Aboriginal children under provincial child welfare systems remained transferable and transformable commodities. When the legacies of nineteenth-century child-saving met late twentieth-century social work, the result was the massive neo-colonization of Aboriginal childhood. Disclosure of the magnitude of this intervention, whatever may have been the needs or endangerment of the children involved, led to moral panic and political opportunism across the entire 'stakeholder' spectrum -- politicians, federal and provincial government bureaucrats, program directors, Aboriginal leaders, all-chiefs associations, academics, the 'psy' professions, Aboriginal communities. The result was the foundation of a compromise system for Manitoba which would be dually driven by Aboriginal cultural values and Euro-Canadian child protection expertise.


V. INTERTRIBAL AGENCIES: THE MANITOBA EXPERIENCE

ALL ON-RESERVE MANITOBA CHILDREN are served by intertribal child protection agencies under Indian management and control, a situation unique in Canada.88 This chapter looks at the origin and functioning of these agencies.

Claims of genocide and the expense of reserve service delivery made federal and provincial governments as anxious to divest themselves of responsibility for reserve child welfare as the bands were for its control. The Manitoba Court of Queen's Bench in Director of Child Welfare for Manitoba v. B . (1979) 6 WWR 229 made clear the extent of provincial government responsibility for child protection services on reserves.

Irrespective of any views that the provincial government may have as to the historical, political, financial or moral responsibility of the federal government to provide health and social service care, it is now absolutely clear that it is the legal responsibility and duty of the province to supply child welfare services ... to the treaty Indian on the same basis and criteria as such services are supplied to the other residents of Manitoba.

No longer could the province rely on federal agreements, the court stated, to limit protective intervention for reserve children to ' "life-and-death" situations'. The writing was on the wall and the legislative loophole was there, in an anachronistic provision of the Manitoba Child and Family Services Act which allowed the Minister to establish new child welfare agencies without legislative debate.89

A 1980 report jointly authored by the federal and provincial governments and the Manitoba Indian Brotherhood agreed on the need to protect 'Indian cultural identity' and to involve Indian people in service provision. In 1982, a tripartite agreement between federal, provincial and Indian governments, Political Accord on Manitoba Indian Child Welfare Negotiations , estab-lished the first system of Aboriginal agencies mandated to apprehend children. It was signed by the federal Minister of Indian Affairs, the Minister of Community Services Manitoba, the Brotherhood of Indian Nations, First Nations Confederacy and the Southeast Resource Development Council.90 Dakota-Ojibway Child and Family Services, established by special tripartite agreement in 1981, received its mandate to apprehend under this agreement. Further agreements were signed with six tribal councils, giving each an agency to serve the reserves in its area.91 The Child and Family Services Act was revised in 1986 to incorporate the tripartite agreements92 and a section stating that preservation of cultural and linguistic heritage is a criterion of the child's best interests was added to protect the cultural interests of off-reserve and non-status Aboriginal children. Under the agreements, Indian Affairs funds child welfare services at the provincial rate while the Manitoba Director of Child and Family Services retains control over 'standards of services and practices and procedures' including powers of review and dissolution.

All parties agreed on the massive failure of mainstream agencies to protect either child or culture, and on the desirability of 'devolving' child welfare control to intertribal councils. 'The road to hell was paved with good intentions, and the child welfare system was the paving contractor,' Judge Kimelman had written in his 1985 report on Aboriginal child welfare in Manitoba. The new intertribal agencies were to remedy the 'genocidal' practices of child apprehension and out-group fostering, adoption and extraprovincial placement of Aboriginal children.93 The agencies would incorporate into social work practice, structure and ideology such Aboriginal norms as consensus decision-making and shared multi-generational childcare. The structure would maintain cultural heritage and introduce Aboriginal control.

In effect, a community-based 'Aboriginal' model was tacked on to the provincial statutory structure and flow of authority (Minister, agency board, supervisor, staff). Each reserve has a worker stationed on-reserve and a Child Care Committee to advise the worker and help implement service plans. Chiefs by right have a seat on the intertribal agency council. The structure invited nepotism. Whether Chief, Chief and Council, agency supervisor or Child Care Committee is ultimately responsible for approving the decisions of child-care workers was contested from the beginning. Some Chiefs believed they were to make final childcare decisions as a legitimate exercise of their existing powers. Many viewed their new child protection mandate as an exercise of the right to self-government.94 Warnings of professional shortcomings and ideological conflicts in the new agencies, and of children endangered or killed under the new policies, appeared in studies of the new system conducted during the 1980s by business and academic consultants. These oberservations were downplayed or ignored in the conclusions of the studies, in the enthusiastic embrace by consultants of an 'Indian' child protection system.

There were problems. Intertribal agencies were responsible virtually upon establishment for full service delivery without lead time to develop internal structures, procedures or staff. Few Aboriginal people had social work credentials and, it was argued, a social work degree did not include courses in Aboriginal child rearing or reserve life. Untrained workers were hired and start-up training programs hastily set up. The high turnover rate endemic to front-line child protection vitiated the educative value of fieldwork, while many of the new workers failed to internalize a professional discourse and discipline in a field which requires formal self-directed upgrading. The tension between 'Aboriginal' norms and child protection philosophy and legislation was apparent from the start.

The situation had not markedly changed ten years later. The 1988 suicide of a 13-year-old Ojibway child became the subject of the longest inquest in Manitoba history, held three years after his death. The report canvassed agency governance and agency failure. The agency responsible for the care of the child suicide Lester Desjarlais, a victim of profound and multiple abuse in the short course of his life who unsuccessfully sought reunification with his alcoholic mother, was Dakota-Ojibway Child and Family Services, the first Aboriginal child welfare agency in Manitoba. In his 1992 report,95 Giesbrecht P.C.J. found DOCFS worker training inadequate, worker accountability lacking, record-keeping procedures all but useless, improper and ineffective intervention and record-tampering. Further, the provincial Minister failed to take action on any one of a long series of reported agency disasters and delicts out of fear of being labelled 'racist' .

Criticism of ministerial inaction was not new in Manitoba.

The Act gives the Director the authority to develop and maintain standards for child welfare services and to ensure the agencies are acting in accordance with those standards. In fact, the Director has not exercised that authority. ... It is not clear why the Director of Child Welfare has failed to exercise the legislated authority. It is clear, however, that such supervision of child care agencies is long overdue and must be put into effect.96

This was not the 1992 Giesbrecht Report but the 1985 Kimelman Report which found systemic bias in the child welfare system amounting to 'cultural genocide'. Ministerial indifference, poor training, lack of worker accountabil-ity, improper and ineffective intervention, inadequate record-keeping and record-tampering and a bias toward extra-cultural placement were destroying Aboriginal childhood.97 The criticisms of the Giesbrecht Report of the new 'Aboriginal' agencies were an uncanny parallel. In too many respects, the new agencies shared much with the old. The Report, however, pointed to a new problem with the new agencies: Chiefs and band council members were interfering with agency decisions, using Indian Act jurisdiction over reserve residency to threaten expulsion98 of workers who intervened in cases involving Chiefs, council members or their relatives. For local child care workers, expulsion meant loss of home and community. The disjunction between ideology and its exercise was expressed by a teacher blocked for years by Chief and council in her efforts to obtain protection for sexually abused children at the school, who told the Winnipeg Free Press : 'Let them cry cultural genocide. They do that on a daily basis anyway.'99

Nor was the Giesbrecht Report the first public intimation of nepotistic abuses of power. An earlier inquest into another child suicide concluded that Anishinaabe Child and Family Services ignored abuse reports because the child was the Chief's son. The Chief made an unsuccessful application to quash the report; see Swan v. Manitoba [1992] M.J. No. 90 (Man. Q.B.). In Dakota-Ojibway CFS v. Anishinaabe CFS [1989] M.J. No. 679, the Court of Queen's Bench found 'rank political interference' when a Chief used workers who were his close relatives to circumvent a no-contact order in order to continue the sexual abuse of his daughter. The case arose from a jurisdic-tional dispute between two intertribal agencies, Dakota-Ojibway and Anishinaabe. 'Workers were taking their instructions from the Band itself', the judge concluded.

The Giesbrecht Report focussed on the suicided child's cousin, a seven-year-old girl sexually abused, as was Lester Desjarlais, by the pedophile 'bogeyman of Sandy Bay' who had terrorized children for many years. The 'bogeyman' was a close relative of a band council member. In February 1988, the girl came to school with writing on her stomach in felt marker saying she and the 'bogeyman' were lovers. She was placed in a reserve foster home by Dakota-Ojibway workers but was forcibly removed that night by family members. Despite repeated reports of sexual abuse, no further action was taken.100 Former Dakota-Ojibway supervisor Marion Glover, a key witness at the inquest, was fired for attempts to intervene. (The 'bogeyman' was later arrested and tried on other child sexual assault charges.)101 Aboriginal leaders were collectively criticized as being 'in denial' both of their own childhood experiences of sexual abuse and of the fact, extent and damage of sexual abuse in their communities. Child protection advocate Dr. Charlie Ferguson, chief medical officer of the Winnipeg Children's Hospital Child Protection Centre, testified at the inquiry that the reserve was 'infested with incest'.102

The Giesbrecht Report did not resolve the problem of political interference inherent in the intertribal agency structure and in the history and politics of Aboriginal governance. The province responded by calling yet another review.103 The November 1993 Report of the First Nations Child and Family Task Force, titled Children First -- Our Responsibility , glossed over the central issues of child abuse and the politics of ignorance and interference, and set an agenda for full local reserve control by individual band councils. No action has been taken on the report. Political interference remains a problem.

In 1993, Jackhead Reserve withdrew from its intertribal protection agency, with the support of the Assembly of Manitoba Chiefs. The Assembly unanimously resolved that the province has no authority on Jackhead and Grand Chief Phil Fontaine stated that the goal of the Assembly of Manitoba Chiefs is Indian control of child welfare.104 In 1994, a group of Chiefs filed injunctions to stop all Anishinaabe agency service provision and banished workers from their reserves. Only Indian Affairs and the Royal Canadian Mounted Police are immune from banishment (although individual officers can be, and have been, banished). In May 1994, Anish-inaabe, and the 212 children under its care, was put under the control of an acting executive director appointed by Indian Affairs. Staff were instructed by memorandum dated 24 May, 1994

to follow the direction of your supervisor & myself and not that of some Chiefs that are entertaining the idea of using their Political influence to interfere in the business of Anishinaabe ... Politics of Band Elections should not in any way, have a bearing as to the operations or functioning of the Agency.

Chief Yellow Quill of Long Plains First Nations was charged under the Child and Family Services Act for abducting a newborn infant from hospital in the course of an agency custody dispute, in August 1995.105

The major change between the eras examined in the Kimelman and Giesbrecht Reports is the focus on preservation of culture and culturally appropriate child placement. Optimistic predictions that the creation of Aboriginal agencies and the legislative enshrinement of cultural standards would reduce the number of Aboriginal children taken into care were not borne out.106 A 1991 evaluation of Manitoba child services estimated that Aboriginal children account for 60 per cent of children in Manitoba care.107 Between 1986 and 1989, the number of children in care of intertribal Awasis Child and Family Services Agency increased by 30 per cent.108 Aboriginal children taken into protective custody are unlikely to get out, a problem identified in the Kimelman Report. The system remains biased toward apprehension. The Director Ma Mawi Wichi Itata, a leading Aboriginal agency, observed,109

It's easier to help by plugging in the resources that the agency readily provides. It's easier for the professional social worker to document and justify the no-risk choice. That's what we do best: document, justify, substantiate. Native agencies operate under the same impetus to place ...

Cases involving adolescent children are rarely taken on, homes for damaged or disturbed children are inadequate and there is little funding for abuser treatment which would expedite return. Abused children suffering emotional or behavioural problems are moved from place to place as successive foster homes prove inadequate to deal with them, further endangering their sexual, emotional and physical safety.110 According to Margo Buck, senior psycholo-gist with the Winnipeg Children's Hospital Child Protection Centre, 'Children in foster care move 10 to 14 times. We just saw a child who had been moved 32 times in the 18 months since the permanent order was granted at the age of two.' Worker training in some agencies is still substandard, while others have made huge strides in the last few years.111

There is little guarantee of protection within the system. One quarter to one half of Manitoba child abuse cases arise in foster homes.112 Early practices of intertribal agencies heightened the risk. Foster placements on home reserves exposed children to their abusers because foster placements were chosen for cultural connection rather than the child's protection. Agencies were successfully sued for placements which led to the child's injury or death. Jurisdictional disputes between urban and intertribal agencies are still common, as reserve connections for many urban families remain strong. An application by Anishinaabe for intervenor status in a Winnipeg agency case, for example, was refused by the court; see Northwest CFS v. S.J.I . (1991), 70 D.L.R.(4th) 418 (Man. Q.B.). In a case of contested guardianship case between two child protection agencies, six siblings had been removed by Anishinaabe from the custody of their physically and sexually abusive parents and placed in an Aboriginal foster home. The children were raped and beaten by other foster children and one was killed by a son of the foster parents. Custody of the remaining children was given to a mainstream Winnipeg agency in a dramatic courtroom transfer. The judge ruled in Anishinaabe CFS v. D.M.O . [1992] No. 492 (Man. Q .B) that the children 'have not received the level and quality of service they desperately need, nor have I any confidence that they will'.

Judicial discipline of child protection agencies in the Kimelman and Giesbrecht inquiries and in the Manitoba courts gives an overly simplified view of the debate. 'Culture' is at the centre of the question, yet culture is rarely addressed in any meaningful way. It is a term used primarily for its political valence. Most of the reports and articles dealing with the Manitoba intertribal agencies place normative claims of communal child-caring side by side with the facts of severe child neglect and abuse. This is intended somehow to make the argument that responsibility for child protection should be returned to Indian communities. The disjunction is not resolved. McKenzie and Hudson, for example, conclude that policy and practice must 'emphasize principles of cultural autonomy and local control' and wonder 'whether community concern and support for children as their most important resource occurs as a result of this change.'113 Yet this is the central issue. It is the reason why Aboriginal child welfare remains a highly contested domain. Does local control create concern for children or does demonstrated concern for children merit local control?

A related question in these debates which has not been addressed publicly is whether self-government under the 1994 Manitoba framework agreement means that bands will be able to opt out of provincial child protection systems and intertribal agencies. Could a band choose to have nothing at all, as Jackhead did?

The 'Indian' agencies are not truly so, in the sense that they are governed by provincial legislation and contemporary social work standards and often employ non-Aboriginal staff. Tensions between opposing definitions of 'expertise' -- reserve experience and Aboriginality versus professional training and philosophy -- remain apparent, although the gap is lessening. The history and structure of the intertribal agencies reflect top-down political aims and expediency rather than grounded community norms and aspirations. This is not to argue that the agencies are not 'cultural' but rather to reflect on the complexity of cultural claims and definitions. Child welfare is governed by the individually-directed 'best interests of the child' test while cultural claims are grounded in the interests of a community, a more diverse and ultimately oppositional claim. 'Culture' under The Child and Family Services Act is one factor in custodial decisions, difficult to evaluate in the individual-ized and unitary context of case-by-case determination, easily ignored. From the perspective of the intertribal agencies, the courts have not given cultural continuity sufficient weight. The dice remain loaded.


VI. CHILDHOOD, CULTURE AND THE COURTS

INDIAN STATUS IS THE LEGAL RECOGNITION of a historical relationship. It may be accompanied by a variety of rights and entitlements including the right to live on reserve. It does not in itself constitute 'culture' but may be an important marker of culture. The petition of a non-status couple in Natural Parents v. Superintendent of Child Welfare (1975)114 to adopt a status Indian child was dismissed at first instance on grounds that Indian status is an incident of birth obliterated by adoption. The British Columbia Court of Appeal ruled that provincial adoption legislation applies to Indians except where inconsistent with the Indian Act . The birth parents wanted the child to be adopted by relatives in accordance with Indian custom, and appealed. The Supreme Court of Canada ruled that, as s. 88 of the Indian Act incorporates by reference all 'laws of general application', provincial legislation must be analysed with care: the question is whether the child 'still has entitlement to be or to continue to be registered as an Indian under s. 11 of the Indian Act'. Adoption legislation must be construed as preserving Indian status115 and therefore cannot extinguish Indian status.

Does 'Indian status' have meaning, absent 'culture'? In Nelson v. Children's Aid Society of Eastern Manitoba (1975),116 the Manitoba Court of Queens Bench considered the culture-nurture question.

Part of the applicants' complaint is that adoption by non-Indian parents removes an Indian child from the Indian cultural atmosphere and environ-ment. If that is the case, these children have been abandoned for some considerable time by their parents and a complaint of this nature now is difficult to understand. In my view the Indian Act does not attempt to compel persons who are Indians to live within any particular cultural environment as a condition of retaining the status of Indian within the meaning of the Act.

This chapter surveys judicial responses to 'culture' in contested child protection cases.

The leading case on the weight to be given to culture (as 'race') is A.N.R. and S.C.R . v. L.J.W. 117 W., a status Indian woman, voluntarily placed her six-week-old baby (the Supreme Court of Canada wrongly states that the child was 'apprehended') in the temporary care of Dakota-Ojibway agency, then in its first year of operation. The mother's husband, a violent man, denied paternity and W. feared he would kill the baby. The agency treated the case as a permanent wardship and placed the child with Metis foster parents. The baby was briefly returned to W. at the age of two, the foster parents reclaimed the child, refused further contact with her mother and proceeded with an application for de facto adoption whereby maternal consent is waived after three years. The agency gave W. no assistance and she failed to register her protest in time.118 Demonstrations were held outside the foster home while the mother made abortive attempts at visitation. The trial judge ruled that the child had been abandoned, granted the adoption order and noted that the advantage of being raised in an 'Indian' environment in forestall-ing a possible identity crisis in adolescence is outweighed by the 'real possibility' of psychological damage should bonds formed with the foster parents be broken. The court recognized cultural difference between Metis and Indian but ruled that a Metis role model for an Indian child was an acceptable answer to the 'cultural identity question'.

The Manitoba Court of Appeal scrutinized trial testimony of W., elders and psychologists on W.'s culture and spirituality, and reviewed bonding and aban-donment issues. There was no abandonment where the mother had not given up the child and was refused agency assistance. The foster parents wrongly refused maternal access, erred in teaching the child she was 'theirs' and gave false information to the child about her identity. Despite these errors, the child's bonds to the foster parents and the stable secure home they provided were of greatest weight. On cultural identity, Matas J.A. wrote,

[i]n an appropriate case, the court may grant a transracial order of adoption. However, I agree that a child's culture and heritage should be considered by the court as one of the factors to be weighed.... Depending on the circum-stances, it is a factor which could have greater or lesser influence in the court's final decision. In the case at bar, the evidence supports the view that the factor is an important one.

O'Sullivan J.A. saw the case as a conflict between claims of 'nature and nurture' with the 'twist' that the mother is an Indian, the foster parents not, a fact of 'considerable weight' but not decisive. There is no proprietary right to a child. Custody cannot be awarded to right past wrongs. The effect of parental ties must be assessed solely in terms of the child's benefit. The weight given to the mother's claim of specific cultural identity, as opposed to a broader 'Aboriginal' one, was, however, sufficient to block the adoption order. Custody was awarded to the foster parents with maternal access still a possibility.

Wilson S.C.J. delivered the judgment of the Supreme Court of Canada.119 It is not the function of an appellate court to reinterpret evidence. There was evidence of abandonment and in any case de facto adoption is not predicated on abandonment. The foster parents acted reasonably and it was inappropriate to characterize their conduct as an illegal assertion of title. The weight of the 'racial element' is inversely related to bonding.

[T]he significance of cultural background and heritage as opposed to bonding abates over time. The closer the bond that develops with the prospective adoptive parents the less important the racial element becomes.

'Race' and 'culture are irrelevant: it is a 'simple' question of two women claiming to be the mother of a child and one does not know her.-

It has nothing to do with race, absolutely nothing to do with culture, it has nothing to do with ethnic background. It's two women and a little girl, and one of them doesn't know her. It's as simple as that; all the rest of it is extra and of no consequence...

Society has changed. '"Race" is of diminished importance in an interracial society.' The sole question for the courts is the parent-child relationship.

Much was made in this case of the inter-racial aspect of the adoption. I believe that inter-racial adoption, like inter-racial marriage, is now an accepted phenomenon in our pluralist society. The implications of it may have been overly dramatized by the respondent in this case. The real issue is the cutting of the child's legal tie with her natural mother ... [The court] has an obligation to ensure that any order it makes will promote the best interests of her child. This and this alone is our task.

Where the child is young, separation prolonged and bonding established, the weight given to culture is minimal. The judgment reflects the rigid 'psycho-logical parenting' theory of Goldstein, Solnit and Freud which asserts that once a child-parent bond has formed, there must be no further interference by the state or a separated parent.120 The theory is problematic: a child can 'bond' with a highly abusive adult, children are often closely bonded to more than one adult, it may be impossible to establish with whom the child is bonded and the theory entirely fails to address the importance and complexity of culture and kinship.

The courts may conflate culture with economic resources. The Saskatche-wan Queen's Bench Court in Mooswa v. Minister of Social Services for the Province of Saskatchewan (1978), 30 R.F.L. 101 returned the child to the birth mother, a rehabilitated alcoholic, because

basic in this kind of problem is the right and need of the child to be raised, if possible, by its natural mother in its natural environment and its own cultural surroundings ... amongst people of her own race and culture.

The standard of living 'may not be considered acceptable by others' but the court should not interfere 'if those standards conform to those considered average in the particular class or group to which the parent(s) belong'. The fact that the applicant was the birth mother and the separation of only six month's duration weighed in the decision. The principle was rejected by the Manitoba Court of Appeal in Director of Child Welfare v. B.B . (1989).121

I do not accept as sound the principle enunciated by the trial judge that there are certain standards or norms which are acceptable for Easterville but unacceptable for the rest of the province. Economic conditions may differ but there is only one standard of care to be considered and applied.

The Supreme Court of Canada in that case disagreed, opting for a more flexible economic standard.

In Child and Family Services v. B.A.B . [1992] M.J. No. 613 (Man. Q.B.), foster parents applied for adoption, with the support of the Winnipeg agency who had placed the child with them. The child, five years old, had been in their care for exactly half her life. Awasis, the agency responsible for the child's home reserve, intervened, using expert testimony on adolescent identity problems in transracial adoption to argue for placement with an aunt who lived a traditional Indian way of life. The court rejected the argument.

This case is about culture -- but it is also about relationships -- and it is also about commitment. M. is entitled to be raised by those who have demonstrated, rather than simply expressed, their commitment to her.

Awasis appealed in hopes of obtaining a strong judicial mandate for culturally-appropriate case planning and inter-agency collaboration. Directive 18 of the Child and Family Services Program Standards Manual , Section 421, was enacted in support of the 1985 'cultural amendment' to the Child and Family Services Act . The directive requires mainstream agencies placing an Aboriginal child to work to provide a culturally-appropriate placement and to notify 'the appropriate Indian agency or Native organization' of the child's entry into the system. The program standard contains seven pages of instructions. The persistent failure of mainstream agencies to adhere to the policy is the issue at root of Awasis intervention and appeal.

Nurture trumps culture in the courts.122 Nurture is now, culture is for later. Bonding always wins and cases cannot be processed quickly enough to accommodate both, where a child has been placed even 'temporarily' outside the original cultural group. Yet the evidence that Aboriginal children may experience severe difficulties in (unmediated) transracial placements is convincing. In 1992, the child whose adoption was contested in A.N.R. and S.C.R. v. L.J.W. , was declared a dangerous offender at the age of 16 under a rarely-used provision of The Young Offenders Act . Her name and photograph were published when she and a boyfriend forced their way in to a rural house at gunpoint, stole money and cut telephone lines. 'We wanted to go public because we consider these people to be highly dangerous', a Royal Canadian Mounted Police spokesman said.123

Children may display interest in their original cultures which adoptive parents are under no obligation to accommodate. Nor are adoptive parents legally required to divulge to a child the fact of Indian status and entitlement.124 Failure to divulge status is involuntary enfranchisement. This fundamental constitutional (and Treaty) problem has not moved Canadian courts to break ties with prospective adopters for proposed kith or kin placement, however safe. Ideas about adoption confidentiality tailored to 'like' placements and infertile couples in an era of cultural imperialism and a unitary vision of childhood continue to dominate adoption law and policy.

The courts justify the commodification of childhood (the 'abstraction of child from culture', in Marlee Kline's poetic phrase) in several ways.125

First, courts may explicitly deny the relevance of maintaining a First Nations Child's culture ... Second, courts may hold that culture is important, but treat it as an abstract category that can be filled by any First Nations culture ... Third, courts may emphasize the child's psychological bonds with her foster parents, but not consider relevant bonds with her culture. Alternatively, the courts may hold that the child needs the stability of a permanent placement, while ignoring the stability that would result from maintaining a connection to her culture.

Courts may view case plans which stress cultural continuity as separate from, or in conflict with, the child's interests. The best interests test permits almost unlimited judicial discretion. Notions of 'right to a home' stand in opposition to 'right to a native home' in agency policy. Child welfare is nowhere more problematic than in the shifting politics of neocolonialism. Whose voice is given political moment, whose rights-claim is recognized, is structured by changing ideologies of citizenship. Children are not well represented in these debates.

The Manitoba experience discloses problems with both old and new child protection agencies. The intertribal agency system has been troubled by political interference, untutored decisionmaking and, above all, by a legacy of interconnected and ultimately culturally-destructive practices addressed by case-by-case intervention. Although the intertribal agencies have come under judicial fire many times in the last decade, it cannot be shown that Manitoba Aboriginal children are worse off, physically or culturally, than under former regimes. Where cultural genocide is threatened, preservation of birth culture is the central issue, yet 'culture' can have little (positive) meaning in a context of severe abuse. The question is whether child protection can bear the burden of an absolutist view, either way.


VII. NEW THERAPIES OF FREEDOM

RESERVES ARE FEDERAL ENCLAVES untouched until recent decades by the operations and constituent theories of provincial child welfare systems. Nineteenth-century institutional models for the induction of citizenship in 'abnormal' children were appropriated for the assimilation of Aboriginal childhood. This imperialist vision doomed Aboriginal childhood but deemed Aboriginal children salvageable, by effacing difference. Other Anglo-Canadian projects for civilizing children -- child migration, the Home of the Friendless -- were challenged by a professional-izing social work. Imperialist models of citizenship (enfranchisement) and normalization (assimilation) dominated Aboriginal and reserve childhood for another eighty years. The geopolitical isolation of the reserve created a time- and culture-warp bypassed by the changing technologies of childhood. The 1960s rediscovery of child abuse coincided with provincial child welfare service provision to reserves and the economies of life-or-death intervention. The consequent wholesale removal of children became a new form of assimilation, resisted by Aboriginal leaders, families and sometimes the children themselves. The residential schools are gone. Control of education has in large measure returned to Indian bands. Control of child welfare remains contested.

Euro-Canadian governance of Aboriginal childhood has had a profound impact on the lives of Aboriginal peoples. The introduction of physical and sexual abuse; the determined erosion of social structures and belief systems which minimize idiosyncratic abuse; the exacerbation of abuse by cultural disenfranchisement, poverty and despair; the displacement of thousands of children: there is little about the lives of Aboriginal peoples which has not been deeply affected by childhood intervention or special disqualification. Deep differences in culture and aspiration suggest that the assimilation of childhood on either imperialist or Anglo-Canadian social work models could never have succeeded. The control of Aboriginal childhood provided the impetus and the opening wedge in the struggle for self-government.

Will self-government be tutored by imperialism, or will it reflect older modes so distasteful to Le Jeune and nineteenth century Indian management policy: communitarian, non-punitive, non-hierarchical? Will the conditions of childhood be improved? The Manitoba experience demonstrates that change of management does not by itself solve systemic problems. Aboriginal therapies of freedom which 'align political, social, and institutional goals with individual pleasures and desires, and with the happiness and fulfilment of the self'126 are not those of Canadian social work, paternalistic state projects of rescue or the nepotistic controls exercised under nineteenth-century patriarchal constructs of tribalism which hide the conditions of children and women.

Aboriginal therapies of freedom define child and self by connection to the generative culture. That connection is one which the peoples themselves must establish. The scientific social work of the Progressive Era focussed on maintaining and improving the family unit and removal of the child, the solution of an earlier era, was to be a last resort. This reflects the shift from individual to family therapy. Aboriginal solutions reflect a further shift, from family therapy to community therapy.

Aboriginal approaches to healing -- community-based, spiritual, holistic, intimate127 -- have begun to demonstrate that therapies which embody local ethos, knowledge and control, and which recognize the cultural damage of child abuse, are the most effective in preventing abuse and healing its effects.128 A focus of healing is the excision of the Foucauldian colonized soul and the reassertion of culture and culturally-relevant processes. Projects embodying such therapies are small-scale and local. 'The system' has to a significant extent accommodated and informed these initiatives. Most approaches draw on mainstream child protection perspectives but interpret these within an Aboriginal community context. Many judges, legal counsel, police officers and child protection workers serving Aboriginal communities have in effect become part of the resistance.129 These community-generated and community-oriented projects stand in contradistinction to the top-down disciplinized approaches reflected in the Canadian governance of childhood. They are not readily amenable to replication or external control.130

A new construct of childhood is emergent in these models of transforma-tion, in the arguments of Aboriginal mothers and intertribal agencies in child custody disputes, in legislatve and judicial discourse. Cultural continuity is now the primary competing definition of the best interests of the child. This 'cultural construct' challenges practices which fail to account for the child's interests in culture and kinship and contrasts with earlier constructs which commodified children in a moral marketplace, as acultural and infinitely transformable.

Aboriginal culture, as the House of Commons Member explained in the 1879 Indian Act debates, is about everyday life.131

They were attached to it because it was inherited from their ancestors, because it had become part of their very nature and entered, in all its ramifications, into their everyday life. They would never cease to adhere to the Aboriginal system until they ceased to be Indians.

It is this 'everydayness' of culture and experience which is fundamentally threatened by the removal of children and loss of control over childhood. Canada is the homeland of unique First Nations cultures, diverse and barely visible on mainstream cultural landscapes. Whether they are in danger of disappearing altogether cannot be shown. Effacing culture means the end of a people. Childhood is both invention and repository of culture, central in strategies of assimilation, discourses of difference, tactics of resistance, and the politics of reclamation. The Manitoba experience reflects the centrality of childhood in postcolonial policy. While children have been pawns and even cannon-fodder in these larger struggles, it cannot be forgotten that they have important stakes in an outcome which protects equally their bodies and their cultures.



Notes

* My thanks to Wendy Whitecloud, Rob McQueen, Wesley Pue, Russell Smandych, Jack London and Michael D.A. Freeman for their comments and support, to Len Kaminski for sharing his archival findings with me, and to Sheryl Rosenberg for her excellent research assistance. Research was supported in part by a grant from the Legal Research Institute, University of Manitoba. This essay is for Maia Littlestar (Uchakos) McGillivray.

A note on terminology : The term 'Aboriginal' includes the Inuit of Northern Canada; non-status Indians, descendants of those original inhabitants of what is now Canada who never registered as 'Indians' or who 'achieved' citizenship and lost Indian status, infra note 32; Metis, descendants of French traders and their Aboriginal partners who constitute a distinct culture ('Metis' also designates a wider European-Aboriginal descent); and 'registered', 'status' or 'treaty' Indians, constitutionally under the aegis of the federal government. I have tried to use the term 'Indian' consistently to refer to those bearing that legal status. Issues and claims of all groups often overlap.

  1. M. Foucault, Discipline and Punish: The Birth of the Prison (Vintage, 1979) 29-30.

  2. N. Rose, Governing the Soul: The Shaping of the Private Self (Routledge, 1989) 257.

  3. Foucault, supra note 1 at 239, 215-6.

  4. Cultural colonialism is the term used in B. McKenzie and P. Hudson, 'Native Children, Child Welfare and the Colonization of Native People' in Levitt and Wharf, eds., The Challenge of Child Welfare (University of British Columbia Press, 1985) 125. The authors reject 'traditional' social work accounts of the vast over-representation of aboriginal children in care; the explanation lies in a cultural colonialism which justifies separation and assimilation of aboriginal children. Cultural genocide is the term used by Judge Kimelman, Chair of the Review Committee on Indian and Metis Adoptions and Placements, to describe the effects of child welfare agency practice on the lives of Aboriginal peoples. See The Committee, Final Report, No Quiet Place . Manitoba Community Services, 1985 ['The Kimelman Report'].

  5. Foucault, supra note 1 at 293 et seq . This carceral progression is thoroughly documented. See Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People (1991) Volume 1 The Justice System and Aboriginal People [The Aboriginal Justice Inquiry]. The carceral system detailed by Foucault is Mettray, a youth correctional facility whose disciplinary regime bore striking resemblance to educational institutions for Aboriginal children and to the young offender facilities in which they are overwhelmingly represented today: six in 10 youthful offenders in Manitoba correctional facilities are Aboriginal. See also Law Reform Commission of Canada Report No. 34, Aboriginal Peoples and Criminal Justice (Ottawa: 1991), observing that 'From the Aboriginal perspective, the criminal justice system is an alien one ... deeply insensitive to their traditions and values; many view it as unremittingly racist. Abuse of power and the distorted exercise of discretion are identified time and again ...'. The six-volume report of the Canadian Royal Commission on Aboriginal Peoples, which found similar conditions and systemic problems, was released in 1996.

  6. For an overview of cultural studies ('the organization of cultural value in the advanced capitalist world'), see J. Frow, Cultural Studies and Cultural Value (Oxford, 1995) and his discussion of the work of Michel de Certeau. See also Austin Sarat and Thomas Kearns, eds., Law in Everyday Life (University of Michigan, 1993) and in particular the essays by Sarat and Kearns and by Patricia Williams.

  7. Ibid . at 48 et seq ., citing Michel de Certeau, The Practice of Everyday Life (1984).

  8. Among Canadian First Nations scholars who have written about the effects of child welfare and residential schooling on family and culture is Patricia Monture-Angus, Thunder in My Soul: A Mohawk Woman Speaks (Fernwood, 1995). Most commentary on the governance of Aboriginal childhood is by non-Aboriginal scholars, consultants, the judiciary and public inquiry. On the importance of an autohistorical approach, see R. Smandych and G. Lee 'Women, Colonization and Resistance: Elements of an Amerindian Autohistorical Approach to the Study of Law and Colonialism' (1995) 10 Native Studies Review 21.

  9. See Frow, supra note 6 at 64 et seq .

  10. See generally A. Fleras and J.L. Elliott, The Nations Within: Aboriginal-State Relations in Canada, the United States, and New Zealand (Oxford UP, 1992); J.R. Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada (University of Toronto Press, 1989); J.R. Miller, ed., Sweet Promises: A Reader on Indian-White Relations in Canada (University of Toronto Press, 1991); H. Buckley, From Wooden Ploughs to Welfare: Why Indian Policy Failed in the Prairie Provinces (McGill-Queens UP, 1992); E.J. Dosman, Indians: The Urban Dilemma (McLelland and Stewart, 1972).

  11. During early contact, for example, Aboriginal peoples thought European languages uncouth, requiring Europeans to learn Aboriginal languages in order to trade, treat and proselytize. The mythology of the Red Man and imaginings of his 'original' culture were enthusiastically embraced in Europe. New World trade influenced European fashion, changed European diet (and the plants of both Old and New Worlds) and inspired the philosophies of, among others, Locke and Rousseau.

  12. Fleras and Elliott, supra note 10 at 3.

  13. Scott's poetry portrays Indians as savage, wild and prone to violence. Despite his romantic involvement with the 'noble savage', he was committed to an imperialist vision of assimilation throughout his career with Indian Affairs. B. Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada (University of British Columbia Press, 1986). The 'Indians' of Scott's poetry in fact belong to 53 Nations. The dozens of distinct dialects fall into 11 language groups. The largest language group, Algonkian, which includes at least two Cree dialects, is spoken by about 100,000 people; the smallest, Kootenay, by about 30. Huron (Central Canada) and Beothuk (Newfoundland) languages are extinct, as are the Beothuk, shot for sport by transatlantic fishermen on shore leave.

  14. Canada's is the first Aboriginal population colonized by England to do so. Fleras and Elliott, supra note 10 at 3, 4. European contact brought typhoid, diphtheria, plague, measles, tuberculosis, scarlet fever, influenza and a variety of venereal diseases to which Aboriginal peoples had no immunity. The decimation of populations following first contact made conquest easy and fed the mythology of cultural desuetude.

  15. Infant mortality and suicide rates are twice that of the non-Aboriginal population; the violent death rate is three times that of the non-Aboriginal population. Indian Affairs, Highlights of Aboriginal Conditions 1981-2001, September 1989.

  16. Averaging about 550 members per band. The figures are provided by Indian Affairs, Manitoba Region, accurate to 30 December, 1993. Lands reserved for Indians constitute .2 per cent of Canadian land for two per cent of the population; four per cent of United States land is reserved for .5% of the population. Buckley, supra note 10. Reserve lands and entitlements remain under active negotiation. Population pressure on lands and services and claims of ancestral entitlements have resulted in a long series of tactical occupations of parks, roadways and Indian Affairs offices, including the 1990 Oka armed standoff in Quebec Mohawk territory.

  17. Miller, 1989, supra note 10 at x.

  18. The animosity with which Aboriginal peoples were regarded on the post-settlement Prairies was described in 1908 by an official in the Alberta Attorney-General's Office: 'Those with whom I have spoken are not, I would gather, very much in sympathy with the Indian, nor with the efforts to better his condition. They look upon him as a sort of pest which should be exterminated.'

  19. The focus on war as evidence of resistance in popular and academic literature obliterates the complexity of Aboriginal resistance to assimilation. First Nations relations with British-Canadian governments were characterized by 'legalization' rather than confrontation. Using law and legal process (represented in the west by the North-West [Royal Canadian] Mounted Police and earlier, and unofficially, the Hudson's Bay Company) rather than waging war was a clear political choice. On the law enforcement role of the Hudon's Bay Company, see generally the work of Russell Smandych and Rick Linden. On colonial legal relations in Upper Canada during this period, see S.L. Harring, ' "The Liberal Treatment of Indians": Native People in Nineteenth Century Ontario Law' (1992) 56 Sask. L.R. 296-371. Harring concludes that the courts tempered the paternalism of the Indian Act by according full individual rights to Indians but failed to come to terms with 'the political rights of the Indian people as tribes, or with the broader concerns of Indian culture and social life'.

  20. Miller, 1989, supra note 10 at 95. Miller characterized the shift as from non-directed to directed cultural change. 'On the whole, the adoption of European goods had not meant profound changes in the values, rituals, and beliefs of the Indians before the nineteenth century'.

  21. Miller, 1989, supra note 10 at .

  22. Miller, 1989, supra note 10 at 191.

  23. An Act Providing for the Organization of the Department of the Secretary of State of Canada, and for the Management of Indian and Ordinance Lands , S.C. 1868, c.42, 1867, 30 & 31 Victoria, c.3 (U.K.). The Indian Act R.S.C. 1970, c. 1-6 governs Indian status. A Regis-trar determines who is an Indian. Originally entitled to be registered as 'status Indians' are the descendants of charter groups designated in the 1868 Act as 'all persons of Indian blood, reputed to belong to a particular tribe, band or body of Indians ... and their descendants'. Later amendments granted status to wives and to the illegitimate children of status Indian women, unless it was shown that the father was not an Indian. This no longer applies and 'Bill C-31 Indians' account for a large proportion of reserve returnees. Enfranchisement or deregistration was originally the means whereby Indi-ans gained voting rights at the cost of status. By majority vote, a band may be enfranchised. A per capita share of band funds and annuities is paid on enfranchisement.

  24. Debates of the House of Commons, 31 March, 1879.

  25. 'The department's policy has, therefore, been gradually to do away with the hereditary and introduce an elective system, so making (as far as circumstances permit) these chiefs and councillors occupy the position in a band which a municipal council does in a white community ... . The provisions ... have not been taken advantage of as speedily or extensively as desired.' Deputy Indian Affairs Superintendent Smart, 1897 Indian Affairs Annual Report, quoted in Indian Affairs, Indian Government under Indian Act Legislation 1868-1951 (1983). The 1982 Indian Affairs report Strengthening Indian Band Government observed that band councils are 'more like administrative arms of the Department of Indian Affairs than they are governments accountable to band members'. This strategy, at least, was successful.

  26. Miller, 1989, supra note 10 at 189.

  27. In making the point that assimilationist was commanded but resisted, Miller quotes Henry IV, Part 1 : 'Owen Glendower: I can call spirits from the vasty deep. Hotspur : Why, so can I, or so can any man; But will they come when you do call for them?' J.S. Miller, 'Owen Glendower, Hotspur and Canadian Indian Policy' in Miller, 1991, supra note 10.

  28. Miller, 1989, supra note 10 at 207.

  29. Bowles et al ., The Indian: Assimilation, Integration or Separation? (Prentice-Hall, 1972) at 71-2.

  30. The Dismantling of the Department of Indian Affairs and Northern Development, the Restoration of Jurisdictions to First Nations Peoples in Manitoba and Recognition of First Nations Governments in Manitoba: Framework Agreement', December 7 1994. Between 60 First Nations in Manitoba ... as represented by the Assembly of Manitoba Chiefs ... and Her Majesty the Queen ...'.

  31. Manitoba Chiefs rejected the initial plan on grounds of lack of community consultation and consultation with women. There is disagreement within Aboriginal communities about the meaning and wisdom of 'devolution'. Breakaway Aboriginal women's groups have their origins in confrontations with the Assembly. Manitoba has taken a route to self-government rejected by all-chiefs' associations across Canada. Its conferral as a relatively easy fulfilment of a federal Liberal 'Red Book' election promise suggests a certain political expediency. In the history of imperialist and neocolonialist policy, however, there is no doubt of the historic significance of this act.

  32. Tactics of resistance included the secret observance of forbidden traditional ceremonies (rain dance, potlatch); refusal to comply with minor regulatory schemes; revision of social, economic, political or cultural norms and redefinition of group boundaries. The post-1960s pan-Indian movement crossed lines of traditional enmity, language, status, culture (plains, coast, northern, south, agrarian, migratory, rural and urban) in recognition of the shared experience, spiritual roots and resistance to marginalization of these cultures. See J. Nagel and S. Matthew, 'Ethnic Reorganization: American Indian Social Economic, Political, and Cultural Strategies for Survival' (1993) 16 Ethnic and Racial Studies 203-235; and R. Jarvenpa, 'The Political Economy and Political Ethnicity of American Indian Adaptations and Identities' (1985) 8 Ethnic and Racial Studies 29-48. Manitoba Dene visiting the Navajo in the 1980s discovered a common language, suggesting how little still is known of pre-colonial relations between Aboriginal peoples.

  33. Miller, 1989, supra note 10 at 191.

  34. The pass system was instituted to control movements during the summer of 1885 in the wake of the North-West Rebellion and was virtually unenforced by 1893 but the petty power it gave federal Indian Agents has long been a sore point. Control over band membership, reserve access and use of alcohol on-reserve are now governed by band by-law.

  35. Delegitimation creates resistance. The custom of the potlatch, for example, died out as a cultural practice in Alaska, where it was not prohibited, long before it died out in Canada, where it was illegal.

  36. Stone describes four views of the nature of the child which had emerged by the mid-nineteenth century, 'the adoption of each of which profoundly affects the way [the child] is treated': born in Original Sin and requiring total subordination of will to adult authority (the 'religious' view); born tabula rasa , entirely malleable (the 'environmental' view); born with character and potential predetermined but somewhat susceptible to improvement through education (the 'biological' view); born good and corrupted by society (the 'Utopian' view, crystallized in Rousseau's Emile ). L. Stone, The Family, Sex and Marriage in England 1500-1800 (Pelican, 1979) 254. These competing visions of childhood are all visible in nineteenth- century childhood discourse and protection policy.

  37. Rose, supra note 2. See R. Dingwall et al ., 'Childhood as a Social Problem: a Survey of the History of Legal Regulation' (1984) 11 J. Law and Society; M.D.A. Freeman, The Rights and Wrongs of Children (Pinter, 1983). The difference for late nineteenth-century child welfare is one of degree.

  38. J. Donzelot, The Policing of Families (Hutchinson, 1980). Donzelot's observation that the changing governance of childhood improved conditions for children and women is not born out to any great degree in this study of Aboriginal childhood.

  39. Rose, supra note 2 at 186.

  40. J. Ursel, Private Lives, Public Policy: 100 Years of State Intervention in the Family (Women's Press, 1992). The new interest in the regulation of childhood and the statutory augmentation of state powers is seen in England, France and the United States, with remarkable similarities in provisions and justifications.

  41. Kelso was a key figure in the development of the Canadian foster care system, Children's Aid Societies, statutory powers of apprehension and the juvenile court. See J. Bullen, 'J.J. Kelso and the "New" Child-savers: The Genesis of the Children's Aid Movement in Ontario' (1990) 82 Ontario History 107. The need for new legislation was publicized in the New York 'Mary Ellen' case, in which a child houseworker was removed from abusive guardians under animal protection legislation, there being no other legal grounds for her apprehension.

  42. D.E. Chunn, From Punishment to Doing Good: Family Courts and Socialized Justice in Ontario 1890-1940 (University of Toronto Press, 1992); Ursel, note 36; L. Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Boston 1880-1960 (Penguin, 1988); C. Hooper, 'Child Sexual Abuse and the Regulation of Women: Variations on a Theme' in C. Smart, ed., Regulating Womanhood: Historical Essays on Marriage, Motherhood and Sexuality (Routledge, 1992).

  43. Bullen, supra note 41 at 157-58. Children were placed on farms, given a bare education, subjected to 'many obvious injustices' and 'condemned to a working-class world that offered few opportunities for personal development and social mobility'.

  44. Chunn, supra note 42 at 36.

  45. See J. Korbin, Child Abuse and Neglect: Cross-Cultural Perspectives (University of California Press, 1981). The 'norm' is also heterosexually biased and omits family formations which do not include children.

  46. M. Eichler, Families in Canada Today: Recent Changes and their Policy Consequences (Gage, 1983). Eichler calls this the 'monolithic bias'. Closely linked is the 'conservative bias' which includes 'a tendency to either ignore children altogether, or to see them merely as objects to be acted upon, rather than as active participants in family life'.

  47. M. Valverde, The Age of Light, Soap and Water: Moral Reform in English Canada, 1885-1925 (McClelland & Stewart, 1991). Valverde establishes linkages between hygiene (cleanliness, moral reform, social and racial purity); Canadian nativism (anglo-protestant patriotism which sought to identify a 'native' Canadian identity in the British Empire); and the 'unabashed' interventionism of social work. 'Nativism' was most strident on the Prairies, 'fantastical' in view of the fact that Western Canada was neither administratively nor in its general population 'white', until late in the nineteenth century (107-8).

  48. Ibid . at 54, citing Canadian Methodist minister Samuel Dwight Chown, one of the first of the proto-professionals to attempt the reconciliation of social science and religious values.

  49. An estimated 11 per cent of the Canadian population may be their descendants. The last group left England in 1967. See P. Bean and J. Melville, Lost Children of the Empire: The Untold Story of Britain's Child Migrants (Unwin Hyman, 1990). The movement was both 'welfarist' and 'instrumentalist' according to J. Eekalaar, '"The Chief Glory": The Export of Children from the U.K.' (1994) 4 J. Law and Society 487. For a Canadian perspective, see K. Bagnell, The Little Immigrants (Macmillan, 1980).

  50. 'The Departure of the Innocents' in Bean and Melville, ibid . at 59.

  51. Untrue, given the children's farm or domestic placement and lack of skills, but effective in the enactment of Canadian child labour laws which tended to benefit adults rather than children.

  52. For depictions of Manitoba 'Barnardo boys' in fiction, see R.J.C. Stead, The Bail Jumper (Briggs, 1914) and E.A.W. Gill, Love in Manitoba (Musson, 1911). In both novels, the 'Barnardo boys' are ill-treated, of problematic morals and all but nameless. Gill, a cleric with St. John's Cathedral Winnipeg on leave from England, also wrote A Manitoba Chore Boy: Letters from an Emigrant (London Religious Tract Society, 1908), a glowing account of a year on a Manitoba farm aimed at juvenile readers and overt propaganda for child migration.

  53. The economic value of child labour was vitiated by child labour laws and by political and economic change. Exploitation of the 'Home' children was apparent by the turn of the century and lack of follow-up by British child export agencies was strongly criticized by Canadian observers. Imperialism shaped child welfare until the 'Great War' changed Canada's relations with England and ended colonialist aspirations. The Depression coincided with 'The Dirty Thirties' of Prairie drought and deep poverty.

  54. Home of the Friendless Report of the Investigating Committee, 1926 (Manitoba Sessional Paper No. 47). The Home's purpose, according to its Articles of incorporation, was 'sheltering, relieving, assisting, reclaiming or otherwise dealing with the fallen, helpless, destitute and afflicted, or other person, whether male or female, needing help, protection or assistance including children'. Its religious agenda was protected by the provision that that 'No person shall hold the office of directress or manager unless she shall be an Evangelical Protestant'. The Home could contract for an 'absolute and uninterrupted custody of and control' of children 'which shall be upheld by all courts'. Control of girls would cease at 18, of boys at 16. As the 1926 Report noted, the provisions were 'in obvious conflict with both the spirit and the letter of general provisions of The Child Welfare Act' of 1922; s.188 of that Act exempted the Home from its general provisions, permitting only a right of inspection. This was a 'bare right' according to its Directress. The Articles were based on those of the Winnipeg Children's Home, incorporated in 1887. S. 188 was amended effective 23 April, 1926, in consultation with Crouch, to authorize the public inquiry. The evidence points strongly to a spy on the Fletcher committee, alerting Crouch to 'surprise' Home inspections. I am grateful to Dr. Len Kaminski, University of Manitoba, for sharing this important archival research with me and for his helpful discussions on the implications and aftermath of the Report.

  55. L.R. Bull, 'Indian Residential Schooling: the Native Perspective' (1991) 18 (Supplement) Canadian Journal of Native Education 3 at 14-15. On residential schools, see also note 10 generally; J.R. Miller, 'Owen Glendower, Hotspur, and Canadian Indian Policy' in Miller, 1991, note 10; Aboriginal Justice Inquiry, note 9; N.R. Ing, 'The Effects of Residential Schools on Native Child-Rearing Practices' (1991) 18 (Supplement) Canadian Journal of Native Education 65; Cariboo Tribal Council and University of Guelph, 'Faith Misplaced: Lasting Effects of Abuse in a First Nations Community' (1991) 18 Canadian Journal of Native Education 161; J. Gresko, 'White "Rites" and Indian "Rites": Indian Education and National Responses in the West, 1870-1910' in D.C. Jones et al ., Shaping the Schools of the Canadian West (Detsilig, 1979) at 84.

  56. Reverend John West, First Priest of the Church of England in the Red River Settlement in the Years 1820 to 1823, The British North West American Indians with Free Thoughts on the Red River Settlement (typescript copy of the original diary manuscript, St. John College Library, University of Manitoba). 'In my appointment as Chaplain to the [Hudson's Bay] Company, my instructions were to reside at the Red River Settlement; and under the encouragement and support of the Church Missionary Society, I was to seek the Instruction and to ameliorate the condition of the native Indians.' West embarked 27 May, 1820 at Graves End on the company ship Eddystone. His diary records many instances of the care taken by Indian parents of their children 'of whom they were passionately fond' (yet 'they brutally lend their daughters of tender age, for a few beads, or a little tobacco'). He returned 10 September, 1823 with a disappointing letter from Governor Simpson which elicited the observation that 'the resolves of Council in Hudson's Bay relative to the amelioration of the condition of the Indians, and promoting morality and religion in the country, were like the acts of the west Indian legislatures passed professedly with a view to the promoting of religion among the slaves worse than nullities .' Costs of his 'Establishment' must fall to Mission charity. I am grateful to Russell Smandych for bringing the manuscript to my attention.

  57. The mother, a widow who refused to entrust her daughters to West, secretly took her sons away amid rumours that West would 'cut off the ears of one of them for leaving the school without leave'. West makes mention of the jealousy of 'the Catholics' of his 'Native Indian School Establishment', with the inference that this was the source of the rumours: 'The attempt is made to prejudice the minds of the Indians against giving their children, insinuating that I wish to collect them, with the intention of taking them to England'. The mother's decampment was occasioned by preparations of West's ally Chief Pigewis [Peguis] to make war on her people, the Sioux. West's hopes of addressing Peguis' tribe on educating their children were frustrated: 'Oh! what faith, and patience, and perseverance are necessary lest the mind should grow weary in the arduous work of seeking to evangelize the Heathen' ( ibid. , 30 March, 1823).

  58. Based on Armitage, supra note 10 at 107 et seq..

  59. Miller 1989, supra note 10 at 196.

  60. Arnold referred to the 'effacement' of the Welsh language, a unique branch of Gaelic. When English state education was enforced in Wales in 1880, Welsh was outlawed from the schools and children were punished for speaking it, a point of pride for many. The anglicization project backfired, leading to the late-nineteenth century renaissance of Welsh literature and culture. English schooling for Wales was fuelled by the Commissioners' horror at the lack of religious knowledge of children interviewed, who were probably pulling their collective leg. J. Morris, The Matter of Wales (Oxford, 1984) 239. The difference for Aboriginal children is most notably the removal from family and village systems of support and the imposition of a much more alien system. On the 'invention' or 'rediscovery' of Welsh culture (with parallels yet to be explored for Aboriginal cultural rediscovery), see P. Morgan, 'From a Death to a View: The Hunt for the Welsh Past in the Romantic Period' in E. Hobsbawm and T. Ranger, The Invention of Tradition (Cambridge, 1983).

  61. These included beating, head-shaving, isolation and ridicule. Restrictions were eventually relaxed. Children in later decades learned rudiments of their own languages from other students and were exposed to other Aboriginal cultures, an experience which later played a strong role in the pan-Indian movement ( supra note 32) and the strategies of self-government.

  62. Miller 1989, supra note 10 at 196.

  63. Miller, 'Owen Glendower', supra note 27 at 332.

  64. Bull, supra note 55.

  65. Miller, 1989, supra note 10 at 213.

  66. Conversation of the author with a Cree student, April 1994.

  67. A. McGillivray, ' R . v. K.(M.) : Legitimating Brutality' (1993) 16 Criminal Reports (4th) 125; Stone, supra note 36.

  68. Conversation of the author with a former Alberta residential school student, October 1993, who planned to form a victim collective for male survivors of residential school discipline. He is searching for the nun, now in her 80s, who acted as discipline officer, in order to sue the Catholic Church for damages. Officials have confirmed that she is still alive, but will not say where she now lives.

  69. Kimelman Report, supra note 4 at 201.

  70. Aboriginal Justice Inquiry, supra note 5 at 514-515. See Ing, supra note 55 for accounts by former pupils. But see Cariboo Tribal Council, supra note 55 at 180, suggesting that 'The type of school attended by the respondents' mothers did not seem to affect family life, while respondents whose fathers had attended residential school had somewhat different experiences from those whose fathers had attended non-residential school.' While perhaps the majority of Indian children did not attend residential school, studies and personal accounts suggest far-reaching effect on the quality of family life and community cohesion where even one family member, especially a father, did so. The picture is complex. Christian corporal punishment values even without the residential school experience have suggested to elders that the birch switch is somehow part of traditional Aboriginal values, while domestic violence and child sexual abuse in 'closed' stressed communities can spread rapidly. 'Culture' may deny as well as protect.

  71. Miller 1989, supra note 10 at 199. Miller also cites state parsimony as a cause of the failure of the system.

  72. On Saskatchewan Indian child welfare control and the adoption crisis, below and see A. McGillivray, 'Transracial Adoption and the Status Indian Child' (1986) 5 Canadian Journal of Family Law 437-67. Seventy-five per cent of Canadian bands have full control of education.

  73. On a more hidden level are goals of consolidation of political power through control of the federal dollars attached to each on-reserve body.

  74. Child abuse is 'a political concept designed to attract attention to a phenomenon which is considered undesirable or deviant'. Definition 'varies over time, across cultures, and between different social and cultural groups'. R. Gelles, 'A Profile of Violence Toward Children in the United States' in Gerbner et al., eds., Child Abuse: An Agenda for Action (Oxford, 1980) at 83. See A. McGillivray, 'The Reconstruction of Child Abuse: Western Definitions and Non-Western Experience' in Freeman and Veerman, eds., The Ideologies of Children's Rights (Martinus Nijhoff, 1992) and 'The Criminalization of Child Abuse' (LL.M. Thesis, University of Toronto, 1988).

  75. Aboriginal Justice Inquiry, supra note 9, Ch. 14. For an example of the history of service provision in a culturally mixed community, see M.H. Richards, 'Cumberland House: Two Hundred Years of History' (1974) 27 Saskatchewan History 108. The island community includes status and non-status Indians descended from the 'Home Indians' (Swampy Cree who traded at the Fort), Metis refugees from the Red River Rebellion and non-Aboriginal people. Health needs were attended to, in various measure, by Hudson's Bay Company factors, missions and provincial nurses stationed at Cumberland House.

  76. Canadian Welfare Council and Canadian Association of Social Workers, Joint Submission to the Special Joint Committee of the Senate and the House of Commons Appointed to Examine and Consider the Indian Act (Ottawa: The Council, 1947) 3. Custom adoption is legally recognized for Inuit children and Canada's ratification of the United Nations Convention on the Rights of the Child demurred from the requirement of state approval, for that reason. Custom adoption is not recognized for other Aboriginal children even where tradition is equally strong. Cree custom in some places encourages the giving of a first-born child to the maternal grandmother to raise and mothers in may Aboriginal cultures give infants to infertile sisters. A Cree student born in Vancouver was raised by his grandmother at Nelson House, Manitoba, under this custom. Conversation with the author, September 1994.

  77. On jurisdiction, see E.F. Carasco, 'Canadian Native Children: Have Child Welfare Laws Broken the Circle?' (1986) 5 Canadian Journal of Family Law 111; S. Bull, 'The Special Case of The Native Child' (1989) 47 Advocate 523; and C. Davies, 'Native Children and the Child Welfare System in Canada' (1992) 30 Alberta Law Review 1200. On federal attempts to shift Indian responsibilities to the provinces as a cost-cutting measure, see Fleras and Elliot, note 10 at 50. For a review of constitutional and statutory considerations in restructuring Indian child welfare services, see D.R. James, 'Legal Structures for Organizing Indian Child Welfare Resources' [1987] 2 C.N.L.R. 1, proposing use of band by-law powers for reserve child welfare control.

  78. H.B. Hawthorn, ed., A Survey of the Contemporary Indians of Canada: A Report on Economic, Political, Educational Needs and Policies (Ottawa: Canada Department of Indian and Northern Development, 1966) at 327. See also H.P Hepworth, Foster Care in Canada (Canadian Council on Social Development, 1980); P. Johnston, Native Children and the Child Welfare System (Lorimer, 1983); McKenzie and Hudson, supra note 4.

  79. Saskatchewan child care workers visiting reserves during this era hid their cars in the bushes to avoid having their tires slashed and windshields broken, and literally ran in, grabbed the child and ran out to avoid personal attacks. McGillivray, supra note 72.

  80. Social worker cited in McGillivray, ibid . Children living with extended family members were seen as abandoned; impoverished living standards and rashes caused by dirty water were interpreted as neglect; language and communication problems complicated evaluation. Ethnocentrism, middle-class standards and a bias favouring the nuclear family were evident in apprehension decisions, as were visibly and seriously damaged and endangered children.

  81. Indian Affairs, supra note 15.

  82. McGillivray, supra note 72 at 448-49.

  83. Transracial adoption was a rarity in North America until the late 1960s. A Canadian study conducted in the late 1950s reported 115 such adoptions in a 12-year period; 92 per cent of those children were part 'white'. The North American transracial adoption movement began with the Montreal Open Door Society which was founded in 1959 to find homes for Montreal Black children. In collaboration with the Montreal Child Services Centre, the Society had by 1963 placed 201 children of mixed and minority (mostly Black) backgrounds; 95 per cent of these children were transracially adopted. McGillivray, ibid .

  84. Hepworth, supra note 78 at 120.

  85. Cf . Saskatchewan Social Services which ran aggressive ad campaigns for transracial adoption from 1966 to the early 1980s. 'AIM-Adopt Indian and Metis' was replaced in 1972 with 'REACH-Resources for Adopting Children' which included Aboriginal children in the same 'hard-to-adopt' category as disabled and older children and sibling groups, with the observation that 'race' is 'a factor which severely limits placement opportunities'. By 1975, the ratio of Saskatchewan Indian children adopted by non--status parents to those adopted by status Indian parents was 19:1. The Canadian average was 5:1. Between 1962 and 1971, 167 status children were adopted by non-status parents and 26 by status parents. Between 1972 and 1981, 722 status children were adopted by non-status parents and 120 by status parents, a ratio of 6:1. (Adapted from Social Services Saskatchewan, Planning and Evaluation, Services to Children Under the Family Services Act, 1975 and Indian and Northern Affairs Canada, Indian Social Welfare, Social Security, National Programs , v. 7, 1982. The Canadian average is from Hepworth, ibid ., 117.) Collaboration between Saskatchewan Social Services and Federation of Saskatchewan Indian Nations to recruit status Indian adoptive parents began in March 1984. See McGillivray, supra note 72.

  86. Kimelman Report, supra note 4; Aboriginal Justice Inquiry, supra note 5 at 520.

  87. Many Aboriginal children placed out-of-province were older and more difficult to place, but the attractions of sunny southern climes with free trips for workers with each placement also played a role at this stage of Manitoba child welfare. Sources confidential by request. Repatriation, the movement to return adoptees to their home reserves, has not been well documented. In one well-known case, a 14-year old girl adopted by an Alberta couple was returned to her Manitoba home reserve where she was shunned and ridiculed. She was finally returned to Alberta after being raped by three reserve youth. See The Kimelman Report, supra note 7, on the transracial adoption experience; see also infra note 123.

  88. On Aboriginal child welfare in other provinces, see W. Warry, 'Ontario's First Peoples' in Johnson and Barnhorst, eds., Children, Families and Public Policy in the 90s (Thompson, 1991); J.A. MacDonald, 'The Child Welfare Programme of the Spallumcheen Band in British Columbia' in Levitt and Wharf, The Challenge of Child Welfare , supra note 4; A. Armitage, 'Family and Child Welfare in First Nation Communities' in B. Wharf, ed., Rethinking Child Welfare in Canada (McClelland & Stewart, 1993) profiling the innovative Winnipeg Ma Mawi Wichi Itata Centre; M. Sinclair et al., 'Aboriginal Child Welfare In Canada' in Bala et al ., eds., Canadian Child Welfare Law: Children, Families and the State (Thompson, 1991) at 171.

  89. The Child and Family Services Act R.S.M. 1985, c. C-80 s. 6(1): 'Any 3 or more persons over the age of 18 years, who desire to associate themselves together for the purpose of providing child and family services, may make an application to the minister for incorporation as an agency in a prescribed form'. The provision is a holdover from the Humane Society era of nineteenth-century child welfare and is now without counterpart in Canadian child protection legislation.

  90. The Agreement was extended to December 1986 by joint accord 26 November, 1985. An additional Tripartite Master Agreement was entered into by Canada, Manitoba and Manitoba Keewatinowi Okemakanac, tribal council for northern reserves, in 1983, to establish Awasis Child and Family Services. The agreements are continued yearly on an ad hoc basis while attention is focussed on constitutional negotiations which may render them redundant. See text accompanying note 30, supra .

  91. Six intertribal agencies serve Manitoba reserves. Awasis serves 26 bands covering the entire northern half of the province (1984, head office in Thompson); Dakota Ojibway, which began operation as a non-mandated agency in 1981 under a special funding agreement with Indian Affairs, serves eight bands in the southwest (Brandon); West Region serves eight bands in the west-central area (1985, Dauphin); Anishinaabe serves five bands in the centre of the province (1986, Ashern); Intertribal serves four bands (1980, Peguis Reserve, also Head Office of the Assembly of Manitoba Chiefs); and Southeast serves eight bands (1983, Winnipeg). Several bands are not associated with an intertribal agency; services are provided by non-mandated agencies and mainstream agencies are called in when a child is to be apprehended. Ma Mawi Wi Chi Itata, a Winnipeg agency which by choice is not mandated, employs 67 social workers, all Aboriginal (most have university degrees) and provides a range of family support programs.

  92. Ss. 6(14) of the Child and Family Services Act , supra note 89, allows bands and tribal councils, together with the government of Canada, to apply for agency incorporation. Although individual bands can apply for incorporation, the province maintains its policy of dealing only with intertribal councils.

  93. Kimelman Report, supra note 4 at 276.

  94. P. Hudson and S. Taylor-Henley, Agreement and Disagreement: An Evaluation of the Canada-Manitoba Northern Indian Child Welfare Agreement , 1987. The authors' interviews with members of Keewatinowi Okemakinac Tribal Council disclosed widespread belief that the intertribal agencies were a step toward self-government. Other warning signs of systemic problems are seen in J. Isitt and B. Roberts, An Assessment of Services Delivered under the Canada-Manitoba-Indian Child Welfare Agreement (Coopers & Lybrand, 1987) for the First Nations Confederacy/ Southeast Resource Development Council. Political interference, overburden and worker incompetence are apparent in the study but the authors minimize the implications for child protection.

  95. Giesbrecht, P.C.J. The Fatalities Inquiries Act Report: An Inquest Respecting the Death of Lester Norman Desjarlais . Brandon, Manitoba, 31 August, 1992.

  96. Kimelman Report, supra note 4 at 86-87.

  97. Both reports recommended appointment of a Child Advocate independent of the Ministry of Family Services, reporting directly to the legislature. In 1993 the office of 'Child Advocate', a ministry staff member reporting directly to the Minister, was established under the Child and Family Services Act .

  98. Banishment -- the revocation of reserve residence privileges by band council resolution pursuant to s. 81 of the Indian Act -- is called 'BCRing'. Teachers and workers have been BCRed, fired, threatened and attacked for reporting child abuse.

  99. A licence to abuse, sex attacks ignored'; 'Point fingers and get fired'. The Winnipeg Sun , 22 December, 1991.

  100. The child was finally examined at age 11 by Winnipeg doctors specializing in child sexual abuse symptomology. She remains at home, reportedly well. Sources confidential by request.

  101. The bogeyman' was convicted of the sexual assault and sodomy of three children. A fourth conviction was overturned by the Manitoba Court of Appeal on grounds that the victim's diagnosis of multiple personality disorder, brought on by abuse, had not been sufficiently proven; without this understanding of his testimony, guilt was not established beyond reasonable doubt. The appeal court refused to order a new trial in view of the trauma he had suffered. The victim was angered by the decision not to retry his abuser and by lack of understanding of his condition by the Court of Appeal. Source confidential by request.

  102. 'Incest', widespread child sexual assault, is not unique to this reserve. The 1987 report, A New Justice for Indian Children by S. Longstaffe, Winnipeg Children's Hospital Child Protection Centre, described multigenerational sexual abuse in small reserve communities and recommended intervention and protection options for protection and healing. No action was taken. The incidence of sexual abuse in geopolitically isolate communities (including ghettoized urban populations) is so high that one senior worker asked me whether this might be a part of 'original Indian culture'. It is not, nor has any culture been known to thrive under regimes of widespread sexual use of children and in particular of female children. Tribal cultures have established complex rules for ensuring marriage does not take place within a much broader range than provided in Canadian Criminal Code incest provisions. Dakota rules, for example, prohibit marriage within all degrees of consanguinity.

  103. Reviews include a 1984 evaluation of Dakota-Ojibway CFS; the 1985 Kimelman Report; a 1986 review of Manitoba West Region and Southeast CFS; a 1987 review of Awasis CFS; the 1991 Aboriginal Justice Inquiry; the 1992 Giesbrecht Report and the 1993 Report of the First Nations Child and Family Task Force. Issues and recommendations, whether positively put forward or couched within the text, are remarkably consistent: abuse is a problem, political interference is a problem, control should reside in the bands. The New Justice report (submitted to Manitoba Grand Chief Phil Fontaine, the Manitoba Family Services Minister and the Manitoba Regional Director of Indian Affairs, in that order) reflects deadlock between Task Force members, each chosen for representation of a political constituency. It glosses over the extent and severity of child abuse, makes only brief mention of political interference and borrows language from the Giesbrecht Report (children are pawns; put children first) while ignoring the recommendations for more accountability and less political interference. The Report recommended a five-year decentralization plan leading to local reserve control.

  104. Winnipeg Free Press , 30 September, 1993.

  105. 'Chief charged', Winnipeg Free Press , 16 February, 1996. This was a 'nationalistic' statement about agency jurisdiction, rather than a personal family matter. Source confidential by request.

  106. Cf . J.A. MacDonald, 'Child Welfare and the Native Indian Peoples of Canada' (1985) 5 Windsor Yearbook of Access to Justice 285. MacDonald enthusiastically endorses the Manitoba intertribal model.

  107. The ratio reported in Johnston, supra note 72. Animus Research Consultants, Aboriginal Justice Inquiry Report on Manitoba Child and Family Services , AJI Research Paper Number 3, March 1991. Statistics were available for Indian children in care of Aboriginal agencies (31 per cent) but mainstream agencies keep no data identifying Aboriginal children; it is estimated that 30 per cent of children in care of mainstream agencies are Aboriginal. Given the concerns about record-keeping expressed by Johnston, Kimelman ( supra note 4) and Giesbrecht, it is surprising that this information is not collected.

  108. Animus, ibid . at 10, using Manitoba Community Services statistics for 1986 and 1989.

  109. Interview, Wayne Helgeson, Executive Director, Ma Mawi Wi Chi Itata Centre, Winnipeg, June 1993.

  110. Winnipeg murder trials in 1995 included a foster mother convicted of smothering a 2-year-old child with fetal alcohol syndrome; and a foster mother acquitted in the death of an abused disordered 5 year old (ingestion of antihistamines was the explanation for the brain swelling which killed him but how the child got the medication, and the cause of his severe bruising, were not explained). Three sexually abused preadolescent girls resident in a Winnipeg 'special needs' foster home were raped by their foster father; he took them to hospital when they began having nightmares and waited at the open examining room door. His bail was paid by the Social Services check for that month. Source confidential by request. The victims in these cases are all Aboriginal, as are two of the three foster homes.

  111. Kaye Dunlop, legal counsel to Awasis Child and Family Services. Conversation with the author, December 1995.

  112. Interviews, Margo Buck, staff psychologist, Winnipeg Children's Hospital Child Protection Centre and Heather Leonoff, legal counsel, Winnipeg Child and Family Services, August 1993.

  113. McKenzie and Hudson, supra note 4.

  114. Re Birth Registration No. 67-09-022272 [1974] 1 W.W.R. 19 at 21, 13 R.F.L. 244 at 247 (B.C. S.C.); [l974] 3 W.W.R. 363, (1974) 4 R.F.L. 396, (1974) 44 D.L.R.(3d) 218 (S.C.C.), (sub. nom. Re Adoption Act ) (sub. nom. Re Birth Registration No. 67-09-022272 [1976] 1 W W.R. 699, (1975) 60 D.L.R. (3d) 148, 21 R.F.L. 267, [l976] 2 S.C.R. 751, 6 N.R. 491 (S.C.C.).

  115. The petitioners argued on appeal that the Act discriminated on the basis of race, contra ss. l(b) of the Canadian Bill of Rights , in that adoptive parents of status Indian children are deprived of the 'right' to have the child's ancestry and family ties obliter-ated by the adoption and the child is similarly deprived of that 'right'. The argument was properly rejected.

  116. [1975] 5 W.W.R. 45, 56 D.L.R.(3d) 567, 21 R.F.L. 222 (Man. C.A.), [1974] 5 W.W.R. 449, 46 D.L.R.(3d) 633 (Man. Q.B.). The five Nelson children were apprehended in I970 and, with parental consent, became permanent wards of the state. The two youngest children were placed in adoptive homes. In 1974 the parents applied for custody of the other three, still in foster care and by then aged 10, 12 and 13.

  117. A.N.R. and S.C.R v. L.J. W. (1984) 37 R.F.L. (2d) 181 (Man. Cty. Ct.), Re. W.; W. v. R. and R.; R. and R. v. W. (sub nom. A.N.R. and S.C.R. v. L.J.W) (1983), 32 R.F.L. (2d) 153, [1983] 2 C.N.L.R. 157, 19 Man. R. (2d) 186 (Man. C.A.), reversed 36 R.F.L. (2d) 1 (S.C.C.). See McGillivray, supra note 72, basing this discussion.

  118. When Dakota-Ojibway received its mandate under tripartite agreement, this case was viewed by the agency as a test of its legal power to place children. Sources confidential by request.

  119. A.N.R. v. L.J.W. [1984] I W.W.R. 1, 36 R.F.L. (2d) 1, (sub. nom. L.J.W v. A.N.R. ) I D.L.R. (4th) 193, (sub. nom. Woods v. Racine ) 48 N.R. 362, 24 Man. R. (2d) 314 (S.C.C.).

  120. Beyond the Best Interests of the Child , 2d ed. (Macmillan, 1979).

  121. Director of Child Welfare v. B.B. (1988), 14 R.F.L.(3d) 113 (Man. C.A.); B.B. v. Director of Child and Family Services (1989), 62 Man. R.(2d) 233, [1989] W.D.F.L. 967 (S.C.C).

  122. A case in which culture and nurture coincided outside the context of (parental) child abuse involved a custody dispute between a Manitoba Island Lake Aboriginal woman and her Scottish ex-husband. An affidavit dated 7 February, 1994 was submitted by an Anglo-Canadian academic authority on child abuse and law, to the Scotland court. The affidavit dwelt on 'skin tents' and other 'horrors' of reserve life, and concluded that 'I have little doubt that the prospects for life, health and happiness of a young child in the south-west of Scotland are infinitely preferable to those of a young child reared on an Indian reservation [sic] in Manitoba'. The court awarded the mother custody anyway. A letter to the academic from the Island Lake Tribal Council, 23 February, 1994, pointed out that 'none of your arguments took into consideration the value of culture and the ongoing struggle of our communities to fight the kind of bias evidenced in your document'. The letter concluded that 'little separates the discriminatory conclusions of your "evidence" from the pious and righteous beliefs held by those who established residential schools and other institutions designed to achieve cultural genocide'. There are no 'skin tents' in evidence in Manitoba, although canvas ones do appear at pow-wows and summer camps. While averages tell a harsh tale, a great many Aboriginal families and reserves conduct their lives and care for their children in an exemplary fashion.

  123. Teens wanted in rural house jacking', Winnipeg Free Press , 24 October, 1992. The child was severely abused and neglected by her adoptive parents, despite their affirmations to the courts. Sources confidential by request. Two Manitoba adoptees murdered their adoptive parents following years of abuse. Cameron Kerley, adopted at the age of 11 by a United States man who beat and raped him, returned at the age of 19 in a state of extreme intoxication and beat him to death with a baseball bat. He was sentenced to 15 years to life but was permitted to serve his sentence in Manitoba. Ronald Kishlicky, adopted as a baby by a United States couple and sexually abused by his stepfather, is serving a 15-year manslaughter sentence in Virginia for killing his adoptive mother with a butcher knife when he was 16. His Manitoba family wants to bring him back to Canada. 'That killer is my son', Winnipeg Free Press , 3 December, 1995. Carla Williams, adopted by a Netherlands couple at age 5, bore two children to her abusive adoptive father. Her return to her home reserve was arranged by Anishinaabe agency. 'Compensation sought for disastrous adoption', Winnipeg Free Press 9 November, 1989. Her lawsuit did not go forward due to her ill health.

  124. Lack of onus on either state or adoptive parent to inform the child of Indian status poses a serious constitutional problem. See McGillivray, supra note 72. The Indian Affairs booklet Adoption and the Indian Child (1993) states at 12, 'Our concern is with the Indian child, registered as a status Indian who has rights and is eligible for benefits which may not be obtained unless adoptive parents are aware of them '; and at 15, 'When an adopted Indian child reaches the age of 18, the Registrar will provide him or her with a registry number, and the name of the Indian band to which he or she may be registered. This is done only upon request.' This is the only mention of the need to protect Indian status after adoption. Agencies now stress with prospective adopters the importance of Aboriginal culture and Winnipeg provides support groups, pow-wows and other activities designed to maintain cultural links for adopted children. There is also a support group for adoptive parents of Aboriginal children with fetal alcohol syndrome; these children form a large percentage of children presently available for adoption. Participation is by choice of adoptive parents.

  125. M. Kline, 'Child Welfare Law, "Best Interests of the Child" Ideology, and First Nations' (1992) 30 Osgoode Hall L.J. 375 at 396. See also M. Kline, 'The "Colour" of Law: Ideological Representations of First Nations in Legal Discourse' (1994), 3 Social and Legal Studies 451.

  126. Rose, supra note 2. Tutorial regimes of the 'psy' disciplines are not a strong part of Aboriginal parenting, nor is it expected that they would be. The counsel of elders, roles of the grandmother and older sister, legends and traditions, circle and communitarian approaches, developments in 'sister' indigenous cultures, are rich sources of parenting 'advice' which may shape the 'new' therapies of freedom.

  127. Dakota-Ojibway Child and Family Services, focus of the Giesbrecht Inquiry, plans a treatment centre to serve the 12,000 residents of its eight reserves for those recovering from addiction, community suicides, sexual and physical abuse and 'residential school syndrome': 'In order to heal our people, we must go beyond counselling'. A holistic combination of traditional and non-traditional therapies, education and skills training is planned. Clergy and Indian Affairs officials have agreed to participate in the residential schools counselling program. 'Healing First Nations' wounds', Winnipeg Free Press 15 April, 1994. At the time of publication of this essay, there has been no further development of the plan.

  128. A small group on Hollow Water Reserve succeeded after many years in persuading the community to take joint action against child sexual abuse. The 'holistic' approach developed on Hollow Water combines traditional spirituality with agency expertise to treat offender, victim and family while ensuring independent protection for the victim. The approach is premised on the fact that victims and abusers will continue to live in the same intertwined communities. If the common law system is for a community of strangers, then Aboriginal law must be the opposite, with unaccountable ramifications. In R. v. S.(H.M.) [1989] M.J. No. 273, the accused pleaded guilty to the sexual abuse of his foster child; the court set terms of probation to fit the decision of the Hollow Water healing circle. Aboriginal communities 'have led the way in the treatment of offenders,' according to Margo Buck, staff psychologist, Winnipeg Children's Hospital Child Protection Centre. 'The models that they have come up with are far better than models white agencies produce. Hollow Water is light years away from our understanding.'

  129. The Hollow Water project, ibid ., is led by agency-trained reserve residents. The lead case for 'circle sentencing' is R. v. Moses (1994) 11 C.R.(4th) 357, [1992] C.N.L.R. 116 (Yukon Terr. Ct.), concluding that 'circle [community-based] sentencing' avoids 'the futility, destruction, and injustice left behind in the wake of circuit courts' by returning offender responsibility and rehabilitation to the community. A study of alternate sentencing in Manitoba and Saskatchewan reserve communities highlights judicial activism and support by prosecution, police, probation and child protection agency personnel; community empowerment is the most frequently-stated outcome. See R.G. Green, Aboriginal Sentencing and Mediation Initiatives: The Sentencing Circle and Other Community Participation Models in Six Aboriginal Communities (LL.M. Thesis, University of Manitoba, 1995). But appeal courts have overturned community-guided sentences, making renegades of judges who approve sentences departing from provincial sentencing tariffs. The Canadian Criminal Code s. 170 was amended in 1996 to stress the desirability of alternative measures in sentencing offenders, with particular attention to the needs of Aboriginal offenders; a Manitoba judge has raised 'constitutional' problems with the provision. Winnipeg Free Press , 5 October, 1996.

  130. The development of community-oriented holistic therapies illustrates a central characteristic of First Nations agencies: a sense of obligation to strengthen families and communities', a matter of agency discretion under the Child and Family Services Act . Flexibility in funding is necessary to the development of programs, in view of the high ratio of 'special needs' children (sibling groups, children with fetal alcohol syndrome or effect, children with behaviour problems due to sexual abuse) and the lack of treatment facilities on reserve. West Region, an agency with low staff turnover and strong support from its Chiefs, was 'block-funded' on a trial basis by Indian Affairs, with some success; see B. McKenzie, Evaluation of the Pilot Project on Block Funding for West Region Child and Family Services , July 1994.

  131. Cited supra note 24. See also text accompanying notes 6 to 9, supra .