2023 will be a pivotal year for Indigenous child welfare on both sides of the border

The highest courts in Canada and the United States are expected to decide child welfare cases this year that could have far-reaching implications for Indigenous rights on both sides of the border.

In Brackeen v. Haaland, the U.S. Supreme Court will decide the future of the Indian Child Welfare Act. 

And in Attorney General of Québec, et al. v. Attorney General of Canada, et al., the Supreme Court of Canada will rule on the constitutionality of the federal government's Indigenous child welfare legislation, Bill C-92.

Although the constitutions and arguments before the top courts in both countries are different, legal experts say the two parallel cases could affect who has the legal right to decide what's best for Indigenous children throughout the continent.

Bill C-92 is legislation that acknowledges Indigenous communities have the right to create their own child and family policies and laws. Under C-92, five Indigenous governing bodies have so far asserted their control over their child and family services, according to Indigenous Services Canada.

But Quebec is challenging the law before the Supreme Court, arguing that it has jurisdiction over Indigenous child welfare.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, said the arguments over jurisdiction are offensive to Indigenous people struggling with the legacy of colonialism and assimilation.

"Those governments have done what has been coined cultural genocide by the Truth and Reconciliation Commission, been called willful and reckless discrimination by the Canadian Human Rights Tribunal," she said.

"It makes this case even more kind of gobsmacking."

Meanwhile, the state of Texas and a handful of non-Native couples that want to adopt or foster Native children argue the Indian Child Welfare Act oversteps federal jurisdiction, illegally discriminates on the basis of race and puts the interests of tribes above the needs of Native children.

If the U.S. Supreme Court agrees there is race-based discrimination built into the law, it could unravel the legal framework defining the distinct status of Native Americans under U.S. law.

Right now, that distinct status is defined primarily through treaties. Native Americans are legally distinct — not through race but through their political status under U.S. law.

"I am very, very worried for our Native American friends in the United States," Blackstock said.

C-92 partly modelled on U.S. law

Although a race-based argument is not being made in Quebec's challenge of C-92, there are other similarities between the two cases.

"The main issue is saying … can the federal government lawfully enact a law that speaks to Indigenous children and the inherent jurisdiction of Indigenous nations," said Hadley Friedland, associate professor of law at the University of Alberta.

As residential schools in Canada and boarding schools in the U.S. wound down, Friedland said, the forcible removal from their communities of Indigenous children in both countries continued.

"The child welfare system appeared to take over that, so we have generations of Indigenous children and families who have suffered great harms," said Friedland, also the academic director of the Wahkohtowin Law and Governance Lodge.

The stated goal of both pieces of legislation is to keep Indigenous children connected to their families, communities and cultures.

But in Canada, First Nations, Inuit and Métis children children account for 53.8 per cent of all children in the child welfare system, according to the 2021 census.

Enacted by Congress in 1978, the Indian Child Welfare Act is seen as the gold standard in foster care policy because it prioritizes placing Native children with Native families, and gives tribal governments jurisdiction over those decisions. 

"Our act looked at and modelled some aspects, in many ways, of the U.S. act," said Naiomi Metallic, an associate professor at the Schulich School of Law at Dalhousie University in Halifax.

"This legislation is very much about Canada atoning, I think, for the mistakes of the past."

Bill C-92 creates national standards for how Indigenous children are to be treated. For example, the law says foster care authorities are to prioritize placing children with extended family and home communities over non-Indigenous placements.

The law also allows communities to create their own child welfare laws.

Provinces join Quebec's opposition

In 2019, the Quebec government filed a reference question with the top court, challenging the legislation's constitutionality. 

Last year, the Quebec Court of Appeal upheld most of the act, except sections 21 and 22(3).

The court took issue with parts of the law that allow Indigenous child welfare laws to supersede provincial laws when they conflict.

Now, Manitoba, Alberta and the Northwest Territories are joining Quebec in arguing Bill C-92 infringes upon provincial jurisdiction.

Assembly of First Nations Manitoba Regional Chief Cindy Woodhouse called out the provinces and territories at a federal-provincial-territorial meeting last month in Ottawa.

"I urge those provinces that are trying to push their jurisdiction onto our children, yet again, to stop and think about what we've been through in this country," said Woodhouse, the assembly's lead negotiator on First Nations child welfare compensation with Canada.

"It's like they don't trust First Nations with our children … Provinces need to take a step back."

The Quebec Court of Appeal decision did, however, recognize the right of Indigenous communities to self-government for child and family services.

If any part of the legislation is struck down, Metallic said, it will have ripple effects across the country. But if the court upholds the law, she said, it could be a watershed moment for Indigenous self-government in Canada.

"This could open the door to a new era of governance, First Nations governance and Indigenous governance, having broader jurisdiction recognized on a much broader basis," Metallic said.