Self Determination in First Peoples Child Protection

Dear Colleagues,

Call out for Special Edition of Genealogy on Self Determination in Indigenous Peoples Child Protection

The forced removal of First Peoples’ children from their families has been a defining feature of law, policy, funding and practice in Australia, Canada, the USA, New Zealand and other colonial states. First Peoples have consistently claimed rights to raise children in First Peoples’ families, cultures and communities. This claim has been framed since the 1970s by many First Peoples’ children’s organizations, as embedded within rights to self-determination, Rights to care for children in their family and community are connected to collective political rights of First Peoples to determine their own futures.

This Special Issue aims to share experiences, advocacy, aspirations for and conceptualizations of self-determination in First Peoples child protection. We are inviting submissions that critically explore and inspire transformation of child protection in ways that honour First Peoples families and communities. First Peoples’ communities have survived genocidal policies of violence and assimilation, and have continued to resist colonial violence, including through organizing to safeguard children’s rights. This Special Issue welcomes contributions that explore the assertion and reclaiming of First Peoples’ authority in child protection expressed through law, traditional practices and stories within First Peoples institutions and at the interface of colonial and First Peoples institutions.

There are diverse ways in which self-determination in child protection has been advocated for at local, national and international levels. While these are founded in particular histories and experiences, there are ways in which these experiences can inform, and in some instances present opportunities or warn of pitfalls in, navigating self-determination in child protection within colonial states.

The Indian Child Welfare Act 1978 US (ICWA), which encodes the jurisdiction of ‘Indian Tribes’ over First Peoples children residing on reserves, has been widely referred to as the ‘gold standard’ for First Peoples child protection laws. It recently withstood constitutional challenge in the US Supreme Court in Haaland v Brackeen 994 F.3d 249. However, the scope of the ICWA’s operation has been challenged in State Courts over a long period. Further, as is a common failing across all colonized countries, funding for ‘active’ efforts to enable Indian families to look after children safely within their family and community is insufficient.

In Canada, the Act respecting First Nations, Inuit & Métis Children, youth & families, SC 2019, was passed five years after the Canadian Truth and Reconciliation Commission’s finding that contemporary child protection systems were ‘broken’ and continued the assimilation policies of residential schools ^[1]. In April 2023, the First Nations Child and Family Caring Society and the Assembly of First Nations reached a final settlement agreement with the Canadian Government for compensation of more than CAD 23 billion ^[2]. This was in response to the Canadian Human Rights Commission’s findings that Canada’s child protection policy and funding discriminated against First Nations children ^[3]. Both these developments were driven by First Peoples’ advocacy and offer promise. However, it is yet to be seen whether they will translate into enforceable national standards, accountability for families and community, or equality in child protection law, policy, practice and funding. Will the reforms result in more than parity, in attempts to remedy longstanding inequalities that perpetuated serious harms?

In Australia, a groundswell of community advocacy, most recently with the organically formed Grandmother’s Against Removals, has pressed for accountability and the end to repetition of the Stolen Generations due to a failure of state and territory authorities to stop the overrepresentation of First Peoples’ children and young people in out-of-home care. The Australian National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (the ‘National Inquiry’) called for the transfer or sharing of child protection authority with First Peoples more than two decades ago ^[4]. While limited delegated child protection responsibility has been attained in jurisdictions such as Victoria and Queensland, and peak and advocacy groups are calling for an extension of this delegated jurisdiction to other Australian states and territories, it is yet to be seen whether this adequately enables First Peoples to look after their children safely in their family and community. The Bringing them home recommendations, including with respect to a social justice package, are yet to be fulfilled.

In New Zealand, while some scholars and advocates have called for a replacement of Oranga Tamariki, the child protection department, with Tikanga Māori alternatives, reforms to date are limited to inclusion of rights to well-being, cultural care and participation in decision making. Māori children remain significantly overrepresented in out-of-home care. The extent to which these limited reforms translate into practice is contested.

The aim of this Special Issue is to explore how the above measures and other examples and drivers of change enable improvements and or transformation of child protection for First Peoples, but also to explore ways in which reform is constrained and limited by entrenched colonial power imbalances and values, thereby extending the experience of colonial violence for First Peoples.

First Peoples’ self-determination as inherent, grounded in First Peoples’ laws and knowledges, founded in international human rights or enacted in legislation has been contested from the point of colonization. The power imbalances between First Peoples and colonizers have established the foundation of child protection laws and practices in violence rather than authority. Measures to address this inequity have been partial and, for many, fail to respond to the foundational wrongs which underpin ongoing harms. Addressing these disparities requires attention not only to reforms of laws, systems and processes for decision making, but also to institutional reparations.

Child protection reparations must adequately cover the cost of the enormous intergenerational harms, discrimination and inequality that many contemporary First Peoples communities experience. How can self-determination be conceptualized and implemented in ways which are founded in values that do not reproduce the ‘trickster’ qualities of colonial child protection institutions, which have shown great plasticity in renaming and reforming themselves across time. How can self-determination in child protection be conceptualized and implemented in ways which are founded in values grounded in First Peoples’ worldviews and that encompass First Peoples’ experience of family life and childrearing practices? These critical areas of inquiry will be at the centre of this Special Issue, contributing to further First Peoples’ discourse and international collaboration around child wellbeing and safety.

[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of Truth and Reconciliation Commission of Canada (Truth and Reconciliation Commission of Canada, 2015) 37.

[2] Assembly of First Nations, ‘AFN and Caring Society announce revised Final Settlement Agreement to Compensate First Nations Children and Families’ (Press Release, 4 April 2023) <https://fncaringsociety.com/sites/default/files/2023-04/23-03-04%20AFN%20FSA%20CS%20Press-FE.pdf>.

[3] First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) 2016 CHRT 2

[4] Australian Human Rights Commission, Bringing Them Home – National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, https://humanrights.gov.au/our-work/bringing-them-home-report-1997.

Dr. Teresa Libesman
Dr. Paul Gray
Dr. Wendy Hermeston
Dr. Kirsten Gray
Guest Editors

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• indigenous peoples and child protection
• self-determination
• cultural care and the best interests of Indigenous children
• reforming and transforming Indigenous child protection