Aboriginal child protection
Encyclopedia
Aboriginal child protection describes services designed specifically for protection of the children of "aboriginal" or indigenous peoples
, particularly where these peoples are a minority
within a country. They may differ at international, national, legal, cultural, social, professional and program levels from general or mainstream child protection services. Fundamental human rights
are a source of many of the differences. Aboriginal child protection may be an integral or a distinct aspect of mainstream
services or it may be exercised formally or informally by an aboriginal people itself. There has been controversy about systemic genocide in child protection systems enforced with aboriginal children in post-colonial societies.
, formally considered by the United Nations
to be a form of genocide
."
Many distinct aspects of aboriginal child protection are thus related to international human rights law
including the 1951 Convention on the Prevention and Punishment of the Crime of Genocide
, the 1976 International Covenant on Civil and Political Rights
, the 1986 Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally the 1989 United Nations Convention on the Rights of the Child, and the 2007 United Nations Declaration on the Rights of Indigenous Peoples
The latter Declaration provides: "Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group."
It is non-binding but may be persuasive even for those states that voted against it.
Within countries, the expression of aboriginal child protection may be seen to be entangled with issues relating to the right of self-determination
of indigenous peoples.
This may occur by express statutory provision or by a domestic court having regard to an international norm as reflecting social progress.
Even without being specifically introduced into domestic law, international norms may have political effects especially in countries that actively espouse human rights.
Aboriginal child protection issues tend to be prominent in countries colonized by a new majority population within the last few centuries.
Assimilative policies arose, regardless of whether colonization proceeded mainly by force as in the United States of America and Australia or by treaty as in Canada and New Zealand.
By the end of the twentieth century, assimilative policies were generally replaced in legislation, policy or practice by the Aboriginal Child Placement Principle which "outlines a preference for the placement of Aboriginal children with Aboriginal people when they are placed outside their families.
The order of preference is generally that an Aboriginal child be placed: within the child’s extended family; or, if this is not possible, within the child’s Aboriginal community; and, failing that, with other Aboriginal people."
Versions of this principle refashioned aboriginal child protection in Western post-colonial democracies along lines shaped by constitutional responsibilities: state in Australia, federal in the United States, federal/provincial in Canada and national in New Zealand, with constitutionalized Treaties playing a pivotal role in New Zealand and an emerging role in Canada.
, “Traditionally, the Aboriginal family was a collaboration of clans composed of mothers, fathers, uncles, aunties, brothers, sisters, cousins and so on. This size of family was the norm but is recognised in today's terms as an 'extended family'.” In 1983, a Family Court
worker noted: "[T]he strength of family affiliation goes a long way to explain the preservation of a distinct culture that has defied assimilation despite aggressive government policies for over a century." Constitutionally, "The responsibility for legislating for children's welfare lies with each State and Territory Government in Australia." The Aboriginal Child Placement Principle was formulated in Australia in the late 1970s and 1980s. Different child welfare legislation in each state and territory make it difficult to determine the effectiveness of the principle. "[M]any Indigenous families prefer to make informal arrangements where possible for the care of children by extended family members. This distrust of the system is one of the reasons for the shortage of Indigenous carers in most jurisdictions in Australia."
in 1867 to fall between the chairs.
Constitutional arrangements in Canada
assigned "Indians
" to federal and child protection to provincial authorities.
Several generations of family life for many aboriginal peoples were devastated by a policy designed to "kill the Indian in the child" effectuated through a compulsory residential school program.
In the 1960s, many aboriginal children were forcibly removed from their families and adopted by non-aboriginal parents.
In 1985, a Judge
found that "Cultural genocide
has been taking place in a systematic routine manner."
During the 1980s, "First Nations peoples [took initiatives] in developing proposals of their own and in negotiating agreements with governments. ... First Nations peoples [developed] service models which reflect[ed] the experiences of their communities, cultures and histories."
In 1982, aboriginal rights were protected in the Canadian Constitution.
Developments in case law
suggest that since 1982 aboriginal peoples' rights to cultural integrity have been constitutionally protected.
Subsequently, some provinces enacted provisions and established policies for aboriginal child welfare agencies to provide services for aboriginal families on reserves under provincial law.
They depend upon federal funding.
"Native agencies are bound by the same provincial child-welfare laws as their mainstream counterparts, but must survive on far tighter budgets under a strict federal funding formula that takes little account of provincial legislation."
In 2007, the Assembly of First Nations announced that it was filing a complaint with the Canadian Human Rights Commission that discriminatory services violated human rights.
In 2008, Canada's Auditor General found that "Current funding practices do not lead to equitable funding among Aboriginal and First Nations communities."
Currently, "The First Nations
are engaged in a struggle to gain control of child welfare
in their own communities, and this issue has a significant place in the First Nations movement towards self-determination
."
Indigenous peoples
exercising the right of self-determination have yet to make it fully effective in respect of aboriginal child protection.
has numerous indigenous peoples that are designated national ethnic minorities.
China is undergoing extraordinarily rapid economic growth and urbanization
from a recent baseline of extreme poverty
.
Provincial, county and township governments have difficulty financing social services.
In these circumstances, "The majority of protective children are [those who are] abandoned and disabled. ... It is almost unimaginable that [a] child will be moved from the birthfamily due to child abuse and neglect by his or her birthparent(s)."
A 2005 study sponsored by the All-China Women's Federation, UNICEF and Peking University and supported by the government of China found that child abuse is widespread in China.
In the absence of state intervention to protect children within their families, aboriginal child protection tends to not be an issue.
Ethnic minority families are exempted from the one-child policy
, removing for ethnic minority populations one of the main reasons for child abandonment.
In China, “Every ethnic group has the freedom to use its own spoken and written languages, and to retain or change its customs. ... [N]ational minorities exercise regional autonomy.
Where national minorities live in compact communities autonomous organs of self-government are established…. The minority people … exercise autonomous rights, [are] masters in their own areas and administer the internal affairs of their ethnic group."
"Recent reform efforts in China's child welfare practices have focused on the importance of providing safe, permanent families for children in lieu of long-term institutional care. Although challenges still exist, adoption and foster care are increasingly being seen as viable alternatives for these children."
The combination of autonomous rights and absence of intrusive mainstream child protection services in China tends to defuse the principal driving forces underlying aboriginal child protection in other countries.
, social services established with the Child Welfare Act in 1925 "displayed little regard for the extended kin networks of Māori children." In 1955, New Zealand law retroactively abolished Māori customary adoptions. In 1982, a report recommended changes to the Department of Social Welfare to meet Māori needs. "The report's recommendations, all accepted by the then Minister, focus[ed] upon the need for the department to function in a bicultural manner and to share responsibility and authority for decisions with appropriate Māori people." By the late 1980s, "notions of social work accountability, along with the pivotal role accorded family and whanau
, had tipped the balance of care and protection work away from professionals. 'Family solutions to family problems', an important philosophy of child welfare work for many years, became more significant as family decision-making assumed importance." In 1989, New Zealand passed ground-breaking new legislation, based on a philosophy of kinship care, that recognized "the importance of cultural identity
in child protection policy." "[K]inship care in New Zealand is ... an effort to redress past practices that harmed and alienated Māori children and families."
children from their tribes and families. In a stark example of such policies, the purpose articulated in the charter of the first boarding school in the 1890s on the Navajo
reservation was 'to remove the Navajo child from the influence of his savage parents.'" In the 1960s, the federal government embarked on a new federal Indian policy of tribal self-determination
. "In view of this new policy and the problems facing tribes as a result of the loss of their children, the Indian Child Welfare Act
was enacted in 1978." Aboriginal child protection is now the subject of a body of federal law and programs. Through the Indian Health Service
(IHS), the U.S. government provides "health services to more than 1.8 million Federally-recognized American Indians
and Alaska Natives
through a system of IHS, tribal, and urban ... operated facilities and programs based on treaties, judicial determinations, and Acts of Congress." The IHS is "the principal Federal health care provider and advocate for the health of American Indians and Alaska Natives". As part of its services, the IHS administers the Indian Child Abuse and Family Violence Prevention Act and with the Bureau of Indian Affairs
offers model tribal laws for child protection codes on reservation. These services, programs and codes may be culturally and linguistically as well as legally and politically differentiated from those of State-based Child Protective Services
but, more generally, "Kinship care has become an integral program option along the continuum of service options in the child welfare system."
child protection is subject to the rule of law
.
Many countries have written laws governing the exercise of state power for child protection. Indigenous peoples
had organized societies and customary laws.
Indigenous peoples' customary laws are recognized and enforceable as part of the laws of post-colonial countries.
In the U.S.A., "Customary law still appears in many of the decisions of American state and federal courts. Customary law, part and parcel of the English common law adopted and adapted by the Founders of the United States, recurs less often given that statutory and administrative law dominate the field. In contrast, the importance of customary law in American Indian tribal courts cannot be [over]stated."
In Canada, a court noted that "such rules, whether they result from custom, tradition, agreement, or some other decision making process, are 'laws' in the Dicey
constitutional sense."
Inevitably, political tensions over the exercise of self-determination by aboriginal peoples find expression in legal tensions between indigenous, customary laws and post-colonial statutes respecting child protection for aboriginal children.
Indigenous legal principles that reflect a more holistic worldview
, and so give relatively greater emphasis to spiritual, cultural and relational needs in addition to physical needs of the child, may add to the legal differences.
Aboriginal customs and colonial statutes were the two main sources of legal definitions of aboriginality. Aboriginal peoples were typically cohesive, numbering only hundreds or perhaps thousands, and collectively knew who they were.
Their customary self-definitions may have been cultural rather than racial because some interbreeding was important for healthy genetic diversity.
Colonial statutes were generally based on race or place.
Today, the challenges of definition span a range from New Zealand's with one officially recognized ethnic minority to China's with 55.
In Australia and Canada, where for jurisdictional reasons child protection laws affecting aboriginal families vary across states and provinces, availability of aboriginal child protection services tends to be defined by place.
Of these, only "Indians
" are statutorily defined for administrative purposes and the statutory Band scheme does not correspond with Indian peoples.
From its inception in 1876, the Indian Act
established convoluted but essentially patrilineal definitions of "Indian", an exercise in gender discrimination that was eroded and finally eliminated by court decisions and statutory amendments in the 25 years following the 1982 Canadian Charter of Rights and Freedoms
.
In general, aboriginal peoples in Canada continue to have the right to define themselves for their own purposes and such definitions may have wider application.
In 1999, Pimicikamak
, a Canadian aboriginal people, enacted a citizenship
law based on self-identification, acceptance by the people, and objective verifiability.
In 2003, the Supreme Court of Canada prescribed three similar criteria for determining who is a member of a Métis
people, reflecting the customary aboriginal definition (with the addition of objective verifiability, which was not an issue in the pre-colonial context).
was established in 1975 by the Treaty of Waitangi Act 1975. The Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Māori relating to actions or omissions of the Crown that breach the promises made in the Treaty of Waitangi."
.
standards. Best practice is implicit in identifying the best interests of the child, the almost universal mantra of modern child welfare
statutory mandates and professional practice. Best practice is evidence based; knowledge of the evidence accepts no borders.
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
, particularly where these peoples are a minority
Minority group
A minority is a sociological group within a demographic. The demographic could be based on many factors from ethnicity, gender, wealth, power, etc. The term extends to numerous situations, and civilizations within history, despite the misnomer of minorities associated with a numerical statistic...
within a country. They may differ at international, national, legal, cultural, social, professional and program levels from general or mainstream child protection services. Fundamental human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
are a source of many of the differences. Aboriginal child protection may be an integral or a distinct aspect of mainstream
Mainstream
Mainstream is, generally, the common current thought of the majority. However, the mainstream is far from cohesive; rather the concept is often considered a cultural construct....
services or it may be exercised formally or informally by an aboriginal people itself. There has been controversy about systemic genocide in child protection systems enforced with aboriginal children in post-colonial societies.
International
"In the second half of the twentieth century, removing children from their parents in order to change a people and a culture came to be recognized as an act of oppressionOppression
Oppression is the exercise of authority or power in a burdensome, cruel, or unjust manner. It can also be defined as an act or instance of oppressing, the state of being oppressed, and the feeling of being heavily burdened, mentally or physically, by troubles, adverse conditions, and...
, formally considered by the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
to be a form of genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
."
Many distinct aspects of aboriginal child protection are thus related to international human rights law
International human rights law
International human rights law refers to the body of international law designed to promote and protect human rights at the international, regional and domestic levels...
including the 1951 Convention on the Prevention and Punishment of the Crime of Genocide
Convention on the Prevention and Punishment of the Crime of Genocide
The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly on 9 December 1948 as General Assembly Resolution 260. The Convention entered into force on 12 January 1951. It defines genocide in legal terms, and is the culmination of...
, the 1976 International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
, the 1986 Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally the 1989 United Nations Convention on the Rights of the Child, and the 2007 United Nations Declaration on the Rights of Indigenous Peoples
The latter Declaration provides: "Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group."
It is non-binding but may be persuasive even for those states that voted against it.
Within countries, the expression of aboriginal child protection may be seen to be entangled with issues relating to the right of self-determination
Self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
of indigenous peoples.
National
The domestic law of a country does not generally recognize an international law unless it is specifically introduced by the domestic law of that country.This may occur by express statutory provision or by a domestic court having regard to an international norm as reflecting social progress.
Even without being specifically introduced into domestic law, international norms may have political effects especially in countries that actively espouse human rights.
Aboriginal child protection issues tend to be prominent in countries colonized by a new majority population within the last few centuries.
Assimilative policies arose, regardless of whether colonization proceeded mainly by force as in the United States of America and Australia or by treaty as in Canada and New Zealand.
By the end of the twentieth century, assimilative policies were generally replaced in legislation, policy or practice by the Aboriginal Child Placement Principle which "outlines a preference for the placement of Aboriginal children with Aboriginal people when they are placed outside their families.
The order of preference is generally that an Aboriginal child be placed: within the child’s extended family; or, if this is not possible, within the child’s Aboriginal community; and, failing that, with other Aboriginal people."
Versions of this principle refashioned aboriginal child protection in Western post-colonial democracies along lines shaped by constitutional responsibilities: state in Australia, federal in the United States, federal/provincial in Canada and national in New Zealand, with constitutionalized Treaties playing a pivotal role in New Zealand and an emerging role in Canada.
Australia
In AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, “Traditionally, the Aboriginal family was a collaboration of clans composed of mothers, fathers, uncles, aunties, brothers, sisters, cousins and so on. This size of family was the norm but is recognised in today's terms as an 'extended family'.” In 1983, a Family Court
Family Court of Western Australia
The Family Court of Western Australia is a state court that deals with family law. It was established by the passing of the Family Court Act and commenced operation in 1976. It deals with divorce, marital property settlements, child custody, adoption and surrogacy...
worker noted: "[T]he strength of family affiliation goes a long way to explain the preservation of a distinct culture that has defied assimilation despite aggressive government policies for over a century." Constitutionally, "The responsibility for legislating for children's welfare lies with each State and Territory Government in Australia." The Aboriginal Child Placement Principle was formulated in Australia in the late 1970s and 1980s. Different child welfare legislation in each state and territory make it difficult to determine the effectiveness of the principle. "[M]any Indigenous families prefer to make informal arrangements where possible for the care of children by extended family members. This distrust of the system is one of the reasons for the shortage of Indigenous carers in most jurisdictions in Australia."
Canada
Child protection for aboriginal peoples of Canada has tended from ConfederationConfederation
A confederation in modern political terms is a permanent union of political units for common action in relation to other units. Usually created by treaty but often later adopting a common constitution, confederations tend to be established for dealing with critical issues such as defense, foreign...
in 1867 to fall between the chairs.
Constitutional arrangements in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
assigned "Indians
First Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
" to federal and child protection to provincial authorities.
Several generations of family life for many aboriginal peoples were devastated by a policy designed to "kill the Indian in the child" effectuated through a compulsory residential school program.
In the 1960s, many aboriginal children were forcibly removed from their families and adopted by non-aboriginal parents.
In 1985, a Judge
Edwin Kimelman
Edwin Charles Kimelman served as a judge of the Provincial Court of Manitoba and authored a significant public report on child protection for aboriginal peoples.-Career:...
found that "Cultural genocide
Cultural genocide
Cultural genocide is a term that lawyer Raphael Lemkin proposed in 1933 as a component to genocide. The term was considered in the 1948 United Nations Declaration on the Rights of Indigenous Peoples juxtaposed next to the term ethnocide, but it was removed in the final document, replaced with...
has been taking place in a systematic routine manner."
During the 1980s, "First Nations peoples [took initiatives] in developing proposals of their own and in negotiating agreements with governments. ... First Nations peoples [developed] service models which reflect[ed] the experiences of their communities, cultures and histories."
In 1982, aboriginal rights were protected in the Canadian Constitution.
Developments in case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
suggest that since 1982 aboriginal peoples' rights to cultural integrity have been constitutionally protected.
Subsequently, some provinces enacted provisions and established policies for aboriginal child welfare agencies to provide services for aboriginal families on reserves under provincial law.
They depend upon federal funding.
"Native agencies are bound by the same provincial child-welfare laws as their mainstream counterparts, but must survive on far tighter budgets under a strict federal funding formula that takes little account of provincial legislation."
In 2007, the Assembly of First Nations announced that it was filing a complaint with the Canadian Human Rights Commission that discriminatory services violated human rights.
In 2008, Canada's Auditor General found that "Current funding practices do not lead to equitable funding among Aboriginal and First Nations communities."
Currently, "The First Nations
First Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
are engaged in a struggle to gain control of child welfare
Child welfare
Child protection is used to describe a set of usually government-run services designed to protect children and young people who are underage and to encourage family stability...
in their own communities, and this issue has a significant place in the First Nations movement towards self-determination
Self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
."
Indigenous peoples
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
exercising the right of self-determination have yet to make it fully effective in respect of aboriginal child protection.
China
ChinaChina
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
has numerous indigenous peoples that are designated national ethnic minorities.
China is undergoing extraordinarily rapid economic growth and urbanization
Urbanization in China
Urbanization in the People's Republic of China increased in speed following the initiation of the reform and opening policy. By the end of 2010, the mainland of the People's Republic of China had a total urban population of 665.57 million or 49.68 percent of the total population.The rural-to-urban...
from a recent baseline of extreme poverty
Poverty in China
Poverty in People's Republic of China refers to the state of relative or absolute material deprivation that affects hundreds of millions of Chinese citizens, particularly those living in rural areas....
.
Provincial, county and township governments have difficulty financing social services.
In these circumstances, "The majority of protective children are [those who are] abandoned and disabled. ... It is almost unimaginable that [a] child will be moved from the birthfamily due to child abuse and neglect by his or her birthparent(s)."
A 2005 study sponsored by the All-China Women's Federation, UNICEF and Peking University and supported by the government of China found that child abuse is widespread in China.
In the absence of state intervention to protect children within their families, aboriginal child protection tends to not be an issue.
Ethnic minority families are exempted from the one-child policy
One-child policy
The one-child policy refers to the one-child limitation applying to a minority of families in the population control policy of the People's Republic of China . The Chinese government refers to it under the official translation of family planning policy...
, removing for ethnic minority populations one of the main reasons for child abandonment.
In China, “Every ethnic group has the freedom to use its own spoken and written languages, and to retain or change its customs. ... [N]ational minorities exercise regional autonomy.
Where national minorities live in compact communities autonomous organs of self-government are established…. The minority people … exercise autonomous rights, [are] masters in their own areas and administer the internal affairs of their ethnic group."
"Recent reform efforts in China's child welfare practices have focused on the importance of providing safe, permanent families for children in lieu of long-term institutional care. Although challenges still exist, adoption and foster care are increasingly being seen as viable alternatives for these children."
The combination of autonomous rights and absence of intrusive mainstream child protection services in China tends to defuse the principal driving forces underlying aboriginal child protection in other countries.
New Zealand
In New ZealandNew Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
, social services established with the Child Welfare Act in 1925 "displayed little regard for the extended kin networks of Māori children." In 1955, New Zealand law retroactively abolished Māori customary adoptions. In 1982, a report recommended changes to the Department of Social Welfare to meet Māori needs. "The report's recommendations, all accepted by the then Minister, focus[ed] upon the need for the department to function in a bicultural manner and to share responsibility and authority for decisions with appropriate Māori people." By the late 1980s, "notions of social work accountability, along with the pivotal role accorded family and whanau
Whanau
Whānau , is a Māori-language word for extended family, now increasingly entering New Zealand English, particularly in official publications.In Māori society, the whānau is also a political unit, below the level of hapū and iwi, and the word itself also has other meanings: as a verb meaning to give...
, had tipped the balance of care and protection work away from professionals. 'Family solutions to family problems', an important philosophy of child welfare work for many years, became more significant as family decision-making assumed importance." In 1989, New Zealand passed ground-breaking new legislation, based on a philosophy of kinship care, that recognized "the importance of cultural identity
Cultural identity
Cultural identity is the identity of a group or culture, or of an individual as far as one is influenced by one's belonging to a group or culture. Cultural identity is similar to and has overlaps with, but is not synonymous with, identity politics....
in child protection policy." "[K]inship care in New Zealand is ... an effort to redress past practices that harmed and alienated Māori children and families."
United States
Historically, in the United States "Indian tribes ... struggled against the assimilationist policies instituted by the United States which sought to destroy tribal cultures by removing Native AmericanNative Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
children from their tribes and families. In a stark example of such policies, the purpose articulated in the charter of the first boarding school in the 1890s on the Navajo
Navajo people
The Navajo of the Southwestern United States are the largest single federally recognized tribe of the United States of America. The Navajo Nation has 300,048 enrolled tribal members. The Navajo Nation constitutes an independent governmental body which manages the Navajo Indian reservation in the...
reservation was 'to remove the Navajo child from the influence of his savage parents.'" In the 1960s, the federal government embarked on a new federal Indian policy of tribal self-determination
Self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
. "In view of this new policy and the problems facing tribes as a result of the loss of their children, the Indian Child Welfare Act
Indian Child Welfare Act
The Indian Child Welfare Act of 1978 is a Federal law that governs jurisdiction over the removal of Native American children from their families.-General:...
was enacted in 1978." Aboriginal child protection is now the subject of a body of federal law and programs. Through the Indian Health Service
Indian Health Service
Indian Health Service is an Operating Division within the U.S. Department of Health and Human Services . IHS is responsible for providing medical and public health services to members of federally recognized Tribes and Alaska Natives...
(IHS), the U.S. government provides "health services to more than 1.8 million Federally-recognized American Indians
Indigenous peoples of the Americas
The indigenous peoples of the Americas are the pre-Columbian inhabitants of North and South America, their descendants and other ethnic groups who are identified with those peoples. Indigenous peoples are known in Canada as Aboriginal peoples, and in the United States as Native Americans...
and Alaska Natives
Alaska Natives
Alaska Natives are the indigenous peoples of Alaska. They include: Aleut, Inuit, Tlingit, Haida, Tsimshian, Eyak, and a number of Northern Athabaskan cultures.-History:In 1912 the Alaska Native Brotherhood was founded...
through a system of IHS, tribal, and urban ... operated facilities and programs based on treaties, judicial determinations, and Acts of Congress." The IHS is "the principal Federal health care provider and advocate for the health of American Indians and Alaska Natives". As part of its services, the IHS administers the Indian Child Abuse and Family Violence Prevention Act and with the Bureau of Indian Affairs
Bureau of Indian Affairs
The Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...
offers model tribal laws for child protection codes on reservation. These services, programs and codes may be culturally and linguistically as well as legally and politically differentiated from those of State-based Child Protective Services
Child Protective Services
Child Protective Services is the name of a governmental agency in many states of the United States that responds to reports of child abuse or neglect. Some states use other names, often attempting to reflect more family-centered practices, such as "Department of Children & Family Services"...
but, more generally, "Kinship care has become an integral program option along the continuum of service options in the child welfare system."
Laws
In a democracyLiberal democracy
Liberal democracy, also known as constitutional democracy, is a common form of representative democracy. According to the principles of liberal democracy, elections should be free and fair, and the political process should be competitive...
child protection is subject to the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
.
Many countries have written laws governing the exercise of state power for child protection. Indigenous peoples
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
had organized societies and customary laws.
Indigenous peoples' customary laws are recognized and enforceable as part of the laws of post-colonial countries.
In the U.S.A., "Customary law still appears in many of the decisions of American state and federal courts. Customary law, part and parcel of the English common law adopted and adapted by the Founders of the United States, recurs less often given that statutory and administrative law dominate the field. In contrast, the importance of customary law in American Indian tribal courts cannot be [over]stated."
In Canada, a court noted that "such rules, whether they result from custom, tradition, agreement, or some other decision making process, are 'laws' in the Dicey
A. V. Dicey
- References :...
constitutional sense."
Inevitably, political tensions over the exercise of self-determination by aboriginal peoples find expression in legal tensions between indigenous, customary laws and post-colonial statutes respecting child protection for aboriginal children.
Indigenous legal principles that reflect a more holistic worldview
World view
A comprehensive world view is the fundamental cognitive orientation of an individual or society encompassing the entirety of the individual or society's knowledge and point-of-view, including natural philosophy; fundamental, existential, and normative postulates; or themes, values, emotions, and...
, and so give relatively greater emphasis to spiritual, cultural and relational needs in addition to physical needs of the child, may add to the legal differences.
Defining "Aboriginal"
As aboriginal child protection returns to its roots among aboriginal peoples, the question of who is aboriginal becomes increasingly pertinent.Aboriginal customs and colonial statutes were the two main sources of legal definitions of aboriginality. Aboriginal peoples were typically cohesive, numbering only hundreds or perhaps thousands, and collectively knew who they were.
Their customary self-definitions may have been cultural rather than racial because some interbreeding was important for healthy genetic diversity.
Colonial statutes were generally based on race or place.
Today, the challenges of definition span a range from New Zealand's with one officially recognized ethnic minority to China's with 55.
In Australia and Canada, where for jurisdictional reasons child protection laws affecting aboriginal families vary across states and provinces, availability of aboriginal child protection services tends to be defined by place.
Australia
In Australia, "In his analysis of over 700 pieces of legislation, the legal historian John McCorquodale found no less than 67 different definitions of Aboriginal people."Canada
Three constitutionally undefined groups of aboriginal peoples have constitutional rights in Canada.Of these, only "Indians
First Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
" are statutorily defined for administrative purposes and the statutory Band scheme does not correspond with Indian peoples.
From its inception in 1876, the Indian Act
Indian Act
The Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...
established convoluted but essentially patrilineal definitions of "Indian", an exercise in gender discrimination that was eroded and finally eliminated by court decisions and statutory amendments in the 25 years following the 1982 Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
In general, aboriginal peoples in Canada continue to have the right to define themselves for their own purposes and such definitions may have wider application.
In 1999, Pimicikamak
Pimicikamak
Pimicikamak is the name of one of the Cree-speaking aboriginal peoples of Canada. Pimicikamak is "a people of rivers and lakes. The traditional territory of Pimicikamak is around Sipiwesk Lake in the heart of the boreal forest, five hundred kilometres north of Winnipeg, Manitoba...
, a Canadian aboriginal people, enacted a citizenship
Citizenship
Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...
law based on self-identification, acceptance by the people, and objective verifiability.
In 2003, the Supreme Court of Canada prescribed three similar criteria for determining who is a member of a Métis
Métis people (Canada)
The Métis are one of the Aboriginal peoples in Canada who trace their descent to mixed First Nations parentage. The term was historically a catch-all describing the offspring of any such union, but within generations the culture syncretised into what is today a distinct aboriginal group, with...
people, reflecting the customary aboriginal definition (with the addition of objective verifiability, which was not an issue in the pre-colonial context).
China
In China, distinct ethnic groups have been officially defined since 1949. The criteria for recognition of an ethnic group are: a territory in China from which it originated, a distinct language, distinctive customs and a sense of collective identity.New Zealand
"The Waitangi TribunalWaitangi Tribunal
The Waitangi Tribunal is a New Zealand permanent commission of inquiry established under the Treaty of Waitangi Act 1975...
was established in 1975 by the Treaty of Waitangi Act 1975. The Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Māori relating to actions or omissions of the Crown that breach the promises made in the Treaty of Waitangi."
Bicultural Services
Except where mandated and provided distinctly from mainstream child protection, aboriginal child protection is necessarily provided through some form of bicultural services. This gives rise to issues of cultural competenceCultural competence
Cultural competence refers to an ability to interact effectively with people of different cultures, particularly in the context of human resources, non-profit organizations, and government agencies whose employees work with persons from different cultural/ethnic backgrounds.Cultural competence...
.
Standards
While constitutional arrangements, legal definitions and statutory schemata vary among those Western post-colonial countries where aboriginal child protection issues have most notably emerged, standards for aboriginal child protection tend to converge. Whether mainstream or aboriginal, child protection agencies tend to be professional and to aim for best practiceBest practice
A best practice is a method or technique that has consistently shown results superior to those achieved with other means, and that is used as a benchmark...
standards. Best practice is implicit in identifying the best interests of the child, the almost universal mantra of modern child welfare
Child welfare
Child protection is used to describe a set of usually government-run services designed to protect children and young people who are underage and to encourage family stability...
statutory mandates and professional practice. Best practice is evidence based; knowledge of the evidence accepts no borders.