Introduction
It is well established that First Nations peoples in what is now known as Canada have been subject to discriminatory and negligent treatment by the settler child welfare system. The imposition of this system upon First Nations kinship circles and communities is a relatively recent development, following decades of control and forced assimilation via culturally disastrous colonial policies. This blog highlights the broad history of settler control over Indigenous communities, families, and citizens, which developed into the child welfare system in place today.
Residential Schools
Among the first laws enacted by Canada to address Indigenous child welfare was the Indian Act of 1876. The Indian Act is an outgrowth of the 1857 Act to Encourage the Gradual Civilization of the Indian Tribes, which disregarded the Royal Proclamation of 1763 and enticed First Nations to surrender land rights for private property and electoral enfranchisement. In line with this assimilationist legislation, Residential Schools for Indigenous children were established under the Indian Act, with compulsory attendance added in 1894. As with both Acts, a façade of supposed compassion concealed paternalistic intent, racist attitudes towards Indigenous child-rearing practices, and a cultural genocide that sought to erase legal distinctions for Indigenous Peoples and vacate the land to make way for European settlers.
Children were separated from their kinship circles and identities and forcibly assimilated into a Euro-Christian way of life. Education was subpar relative to settler schools, as curriculums focused primarily on prayer and manual labour. This was often accompanied by physical, emotional, and psychological abuse, as well as a disturbing incidence of unreported deaths. Much the same process of erasing Indigenous identities was carried out at in-community Indian Day Schools.
Introduction of the Welfare State and Child and Family Services
The Second World War necessitated the development of social services that would help facilitate military and economic mobilization. Welfare-promoting organizations gained influence at this time and, in 1947, called attention to the deplorable conditions on many First Nations reserves. However, their mandates to also address “social development” supported assimilationist responses to many of the issues created by the displacement and marginalization of First Nations by settlers. Ironically, these solutions were often in line with Residential School practices that welfare organizations supposedly rejected. Despite an eagerness to assimilate First Nations children, the federal government remained reluctant to fund child welfare services. Their solution was to expand the jurisdiction of provincial and territorial child welfare services to First Nations children, both on- and off-reserve, which left many individuals caught between jurisdictions and underserved.
The Sixties Scoop and the Early Push for Reforms
Consequently, these reforms granted provincial child welfare systems across Canada the legal right to remove First Nations children from their homes if living conditions were considered unacceptable. Removals frequently occurred due to Eurocentric definitions of “unacceptable living conditions.” What resulted is referred to as the “Sixties Scoop,” where an estimated 20,000 Indigenous children were taken from their homes by child and family services and adopted into settler families. Adoptions abroad also occurred, sending children as far away as New Zealand. In addition to psychological trauma, children often faced other forms of abuse and loss of Indigenous identity, supplanting Residential Schools as the means of forced assimilation. A misnomer, the “Sixties Scoop” persisted throughout the 1970s and 1980s and arguably continues to this day.
Ad hoc First Nations agencies began to operate on-reserve in the 1980s with federal funding. This was, however, inconsistent and unregulated. While federal and provincial governments disclaimed responsibility for First Nations child and family services, many Nations continued to reclaim and develop their own services. What was needed was a radically new framework that formalized federal funding and First Nations control. The distinct legal status, cultural practices, and circumstances of First Nations in Canada had to be recognized. At the same time, families needed to be supported rather than treated as dangerous.
In response, the department of Aboriginal Affairs and Northern Development Canada (AANDC) (known today as Indigenous Services Canada and Crown-Indigenous Affairs and Northern Relations) developed the First Nations Child and Family Services (FNCFS) program in 1989. Agreements could be created with provincial and territorial governments or a comprehensive funding agreement with FNCFS agencies. This program and the associated “Directive 20-1” laid the framework for child welfare policies, programs, and on-reserve funding until 2016.
Jordan’s Principle
By the early 2000s many goals for FNCFS reform, save for funding, remained regrettably distant. The case of Jordan River Anderson from Norway House Cree Nation, Manitoba, exemplifies the jurisdictional disputes plaguing the First Nations child welfare system. Jordan was born in 1999 with complex health needs. Although Jordan was determined to be stable enough to return to his home Nation, the federal and Manitoba governments would argue over who was responsible for funding Jordan’s on-reserve medical costs. The dispute dragged on for three years, during which Jordan passed away in 2005, having spent his whole life in a Winnipeg hospital.
In response, Jordan’s Principle was legislated federally in 2007. A legal principle named after Jordan, Jordan’s Principle requires the government of first contact to fund the medical (and later educational and social) expenses of First Nations children, with jurisdiction being determined later. Although a legal obligation to address critical gaps in FNCFS, Jordan’s Principle received inadequate, discretionary federal funding until 2016. As FNCFS funding has not been sufficiently raised with need, Jordan’s Principle has increasingly acted as a stopgap to support much-needed health and educational services and equipment for First Nations children.
Appalling Incentives and Re-Reforms
In 2007, the First Nations Child and Family Caring Society and the Assembly of First Nations (AFN) filed a complaint against the federal government, alleging that child welfare services provided to First Nations children and families on-reserve were flawed, inequitable, and discriminatory. Canada countered this claim, stating that its services cannot be compared to those provided by the provinces and territories and that they do not offer a service in accordance with the Canadian Human Rights Act.
On January 26, 2016, the Tribunal ruled that the Canadian government was racially discriminating against 165,000 First Nations children in its provision of the First Nations Child and Family Services (FNCFS) program and flawed, narrow implementation of Jordan’s Principle. The landmark 2016 CHRT 2 decision also noted that the funding formula used by AANDC and First Nations child family services incentivized putting children in foster care, group homes, and institutional care. Even when other remedies were available, these were the only options that would be fully reimbursed. This problem was exacerbated by the already inadequate funding the program received and resulted in children being unnecessarily taken from their homes.
Recent Developments
The inadequacy of First Nations child and family services and the inability of Jordan’s Principle to remedy this has resulted in Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families. The Act, coming into force in 2019, allows for the complete transfer of jurisdiction over FNCFS to First Nations. The Act is overdue, as First Nations have sought this remedy for over half a century. However, a significant impediment remains as sufficient funding for FNCFS reform remains challenging to secure.
For example, the AFN, Chiefs of Ontario, Nishnawbe Aski Nation, and Canada negotiated $47.8 billion in a Draft Agreement for the Long-Term Reform of First Nations Child and Family Services in July 2024. The national Final Draft Agreement aimed to end years of discrimination, as mandated by the CHRT, and uphold the rights of First Nations children, families, and communities. In October 2024, the First Nations-in-Assembly voted to reject the final Draft Agreement. Amid national disunity, as of January 2025, the Chiefs of Ontario and Nishnawbe Aski Nation seek to negotiate their own agreement on child welfare reforms with the federal government.
Reform remains desperately needed. In 2021, First Nations children made up 42.5% of foster children in Canada despite comprising only 4.7% of the child population aged 14 and under. Despite reforms and legal victories, First Nations families and their children are still disproportionately more likely to be the subject of investigations, recipients of ongoing services, and transferred to out-of-home care. A solution to remedy decades of discrimination and negligence, including subpar service and funding, is elusive as discussions to enact long-term reform remain at a stalemate.