The Supreme Court decision was described as “groundbreaking,” but all it did was confirm what we already knew in Indian Country.
There was merriment and jubilation in Indian Country last week when the Supreme Court unanimously supported the federal Indigenous child welfare legislation.
Quebec had raised the concern that it impinged on provincial jurisdiction. Quebec also raised the spectre of the recognition of a possible third form of government. Which was greeted in Indian Country by a “So what?” and “What’s your point?”
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The Canadian Constitution recognizes Aboriginal rights and self government is an Aboriginal right. We never gave up the right to govern ourselves like we had done for centuries.
History through Indigenous eyes gives a clear picture of our people living within this land and gradually being encroached by colonizing powers. Indigenous government isn’t Canada’s third form of government; it’s the first. The federal and provincial governments come second and third.
Indigenous children have suffered the collateral damage of colonization. The children were seen as the way to destroy the language and culture. We were considered a vanishing race, and the government was determined to hasten the inevitable.
The front lines ran right through childhood with the residential schools and the ’60s Scoop with the external laws and policies that were designed for forced assimilation and cultural eradication.
The federal government couldn’t be bothered with educating our people, so they turned it over to the churches, who were given the mandate to “destroy the Indian in the child.”
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The British North America Act was passed in 1867 and laid out the blueprint as to how the new country of Canada was to be governed. Section 91 outlines the federal responsibilities and line 21 states “Indians and lands reserved for Indians” are federal jurisdiction.
The Indian Act revisions of 1951 allowed the provinces to take over First Nations child welfare. Of course, there was no consultation with First Nations.
Since 2015, the federal government has followed a policy of reconciliation with the First Nations. One of the results of this policy is the legislation act “respecting First Nations, Inuit and Métis Children” that was passed through Parliament in 2019.
Quebec objected to it and it took until February 2024 for the Supreme Court to rule that it was constitutional and the court affirmed our right to self government.
The new legislation for Indigenous child welfare affirmed the right of Indigenous peoples to enact their own laws and operate their own child protection services, and included sections that said Indigenous legislation had the force of federal law and could supersede provincial law.
It was absolutely incredible that we had to go to court to defend our jurisdiction over our children. The Supreme Court decision was described as “groundbreaking,” but all it did was confirm what we already knew.
It was groundbreaking in that the federal government is implementing a nation-to-nation relationship as defined by the Canadian constitution and the United Nations Declaration on the Rights of Indigenous Peoples.
It may have been a nuisance to take the case to the Supreme Court, but it strengthens our hand when it comes to asserting our right to self government and the implementation of our treaty and Aboriginal rights.
Now we have the backing of the Supreme Court on other issues such as education, housing, community safety and so on.
Now comes the hard part. The Supreme Court decision has three elements: affirming Indigenous communities’ jurisdiction in relation to child and family services; establishing national standards applicable across Canada; and implementing aspects of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law.
It’s up to our leaders to make this happen and put in place legislation and policies to implement Indigenous child welfare and protection programs. We can’t copy the old methods; we must develop new policies with the children’s best interests at the centre.
Our leadership has to consult with the communities, the elders and the childcare professionals. The rights of our children have been under scrutiny because of the tragic history that has ruined so many lives.
Self government and independence aren’t something you receive from another government. It’s something you take because it’s yours. This is an important court decision, and it must be followed up for the good of future generations.
Doug Cuthand is the Indigenous affairs columnist for the Saskatoon StarPhoenix and the Regina Leader-Post. He is a member of the Little Pine First Nation.
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