An Endless Cycle of Despair

Brian Giesbrecht
January 31, 2020
No one will disagree that there’s something terribly broken with Indigenous child welfare in Canada. But is the solution for the rest of the country to give up caring about native children altogether? That’s the plan behind new federal legislation that aims to ‘fully Indigenize’ child welfare services. Drawing on his own deep experience with the tragic consequences of the current system, former Manitoba provincial court judge Brian Giesbrecht reveals why Ottawa’s new approach will simply perpetuate Canada’s long history of failure to protect native children from the real causes of family dysfunction.

An Endless Cycle of Despair

Brian Giesbrecht
January 31, 2020
No one will disagree that there’s something terribly broken with Indigenous child welfare in Canada. But is the solution for the rest of the country to give up caring about native children altogether? That’s the plan behind new federal legislation that aims to ‘fully Indigenize’ child welfare services. Drawing on his own deep experience with the tragic consequences of the current system, former Manitoba provincial court judge Brian Giesbrecht reveals why Ottawa’s new approach will simply perpetuate Canada’s long history of failure to protect native children from the real causes of family dysfunction.
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Lester Desjarlais had a short and difficult life. Born on the troubled Sandy Bay Reserve in Manitoba’s Interlake district, by the time he died at age 13 Lester had been abandoned several times by his mother, habituated to underage drinking, gas-sniffing and petty theft and repeatedly assaulted, both physically and sexually. He was once tied to a post in a schoolyard and sodomized by a local child molester known as the “bogeyman.”

As a result of his mother’s severe alcoholism and dysfunction, Lester had been apprehended several times by Dakota Ojibway Child and Family Services (DOCFS), an Indigenous-run child welfare service. It was in 1988 while living at his third foster home in two years as a ward of DOCFS that Lester, severely depressed from the multiple traumas of his brief life, hanged himself in his own backyard.

Sadly, only in death did Lester receive the attention he deserved in life. A provincial inquiry into the circumstances of his suicide was called and, as a Manitoba provincial court judge at the time, I was asked to preside. The results are as shocking today as they were three decades ago.

The inquiry was scheduled to last one day. But as the evidence piled up regarding the egregious failure of everyone connected to Lester to protect him from harm – his family, the Sandy Bay community and its leaders as well as local and provincial child welfare authorities − it became obvious more time would be required. The hearings eventually lasted 40 days over two years, with testimony from 62 witnesses.

Judge Brian Giesbrecht’s inquiry into the death of Lester Desjarlais revealed a shocking tale of neglect, incompetence and corruption on the Sandy Bay Reserve; it also argued against further devolution of native child welfare.

The details of Lester’s life and death revealed a shocking picture of incompetence, corruption and neglect at Sandy Bay. Lester’s entire file at DOCFS’s offices mysteriously disappeared, never to be recovered. The tribal chief interfered with the local police investigation into Lester’s death – in fact the “bogeyman” who had violated Lester so disturbingly in the schoolyard was later revealed to be the chief’s brother. A local teacher was also alleged to have sexually assaulted Lester at school. Not only was this complaint ignored, but it turned out this teacher was previously stripped of his teaching certificate due to sexual offences against children at another school in B.C. When presented with this information, the school board chose not to fire him, but merely reclassified him as “consultant.”

As the inquiry’s scope broadened, many other witnesses came forward from other reserves to testify about similar situations of child abuse, neglect and a smothering code of silence. Lester Desjarlais was not an isolated case. “The problem of sexual abuse on Indian Reserves is a problem of epidemic proportions,” I wrote. “Children are victimized first by abusers, and then by the very institutions that are expected to protect them.”

A major contributing factor in Lester’s death, I concluded, was the recent policy of “devolution.” For reasons of political expediency, the provincial government had shifted responsibility for child welfare services onto fledgling local Indigenous agencies such as the DOCFS. Yet these organizations lacked the competence and experience to carry out their appointed tasks, especially when doing so prompted pushback from reserve leadership. With all this before me, I called for a stop in further devolution until it could be established that Indigenous children were not being put in harm’s way. Instead, devolution continued apace.

Now, it’s about to get much worse. Last year, prior to the federal election, the Liberals passed controversial legislation remaking Indigenous child welfare across Canada. Bill C-92 An Act respecting First Nations, Inuit and Métis children, youth and families marks the first direct federal involvement in native child welfare in over half a century. With this new law, which came into effect at the beginning of January, the scope of devolution will be greatly expanded. In order to claim the native child welfare system has been fully Indigenized, the Trudeau government will now allow every First Nation in the country to create its own individual standards and mechanisms. And those services will be provided almost entirely by Indigenous agencies such as DOCFS.

Lester Desjarlais’ life story is movingly told in the 1998 book “Flowers on my Grave” by Ruth Teichroeb.

Most significantly, it will become much more difficult – perhaps impossible in many situations – for any agency to apprehend native children from dysfunctional homes and place them in protective foster care. All such cases will now be subject to a test of “cultural continuity”, a new criterion not applicable to children elsewhere in the country. The cumulative effect of these new requirements will be to completely estrange native children from the norms, expectations and regulatory oversight that exist for all other children in Canada. We will soon have two entirely separate child welfare systems: one for native kids, and one for everyone else.  

However virtuous it may sound to have fully off-loaded native child welfare onto Indigenous responsibility, Ottawa’s latest move will almost certainly make things worse for native children at risk. Indigenization of child welfare cannot be considered a real fix, but rather a cultural fig leaf – a way to cast blame on non-Indigenous Canada and colonialism while ignoring other, far more serious and pressing pathologies at work. By overlooking the true causes of the Indigenous child welfare tragedy in favour of a convenient political narrative, we do a grave disservice to Indigenous children. The rest of Canada should brace itself for more heartbreaking stories like that of Lester Desjarlais.

A complicated and sensitive social undertaking

Since the 1960s Ottawa has largely left the delivery of Indigenous child welfare services to the provinces. Bill C-92, pushed through in the run-up to last year’s federal election, thus marks a dramatic shift, with Ottawa now setting national standards all provinces must follow. This has spurred predictable complaints from the provinces over new spending obligations as well as federal intrusion into an area of provincial responsibility. Quebec has announced it will challenge the new law’s constitutionality, while Manitoba’s family minister has decried the lack of prior consultation and calls the changes “unacceptable.” Lost within these interjurisdictional disputes, however, is the question of what the changes will mean for some of Canada’s most vulnerable children.

Child welfare is among the most complicated and sensitive of all government social welfare functions, balancing as it does parents’ rights to raise their own children with society’s obligations to protect children at risk. This task is made all the more difficult by complicating factors such as poverty, unemployment, addiction and isolation – all of which are common on many First Nations reserves. According to the 2016 Census, Indigenous children make up 7.7 percent of all Canadian children aged 0-14, yet account for more than half of all children in foster care in private homes. Such an imbalance demands attention from all Canadians. It is a national embarrassment.

Fully Indigenizing child welfare: The federal Liberal government announces the passage of Bill C-92 last June; the new law took effect January 2020.

Unfortunately, Ottawa’s new bill fails to recognize the real forces behind these statistics. Instead of taking a hard look at the realities of Indigenous child welfare, and why the Lester Desjarlais case is, tragically, far from unique, the federal government prefers to blame all current problems in the native file on the lingering damage of colonialism. The preamble to the legislation, for example, references the “harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices.” The proposed remedy is to deliver full responsibility for child welfare to individual First Nations. A washing of hands, so to speak. This ignores the lessons offered by this country’s long and complex history of native child welfare.

Alongside a variety of administrative shifts allowing for greater Indigenous control over child welfare, the bill’s most significant item is adding a new duty of “cultural continuity” to the familiar tension between the best interests of children and the rights of parents in deciding whether a child should be apprehended. Such a communal obligation to Indigenous culture is designed to make it far more difficult for anyone – Indigenous authorities included – to remove children from dysfunctional homes, particularly in favour of a stable home off-reserve. While this might reduce the number of children in foster care, it won’t necessarily make their lives any better. That’s because the overwhelming reason for the dysfunction – the high rate of alcohol and drug abuse on reserves – is ignored.

While some First Nations have implemented policies to deal with alcohol and substance abuse in a responsible manner, binge drinking and alcoholism among Indigenous people remains a serious issue on and off reserve. In the long-ago past, this received substantial attention from white and native authorities alike. During the 1873 treaty negotiations with North-West Territory Lieutenant-Governor Alexander Morris, for example, Ojibway chiefs in Northwestern Ontario explicitly asked that “no ‘fire-water’ should be sold on their reserves.” Morris complied. The Indian Act also once banned the sale of alcohol to First Nations. More recently, the impact of alcoholism on reserves has been dealt with in detail by several noted Indigenous writers, including Calvin Helin and Harold Johnson.

Former Crown Prosecutor and Indigenous writer Harold Johnson argues that addiction and FASD are central to understanding family dysfunction on reserves.

A Woodland Cree from Saskatchewan and a Crown prosecutor for many years, Johnson makes the provocative claim that half the Indigenous people known to him locally have died, either directly or indirectly, from alcohol abuse. “I can’t stay silent any longer. I cannot with good conscience bury another relative,” he writes in his 2016 book Firewater: How Alcohol is Killing my People (and Yours). “I cannot watch any longer as a constant stream of our relatives come into the justice system because of the horrible things they have done to each other while they were drunk. The suffering caused by alcohol, the kids with Fetal Alcohol Spectrum Disorder (FASD), the violence, the poverty, the abandoned children, the mental wards and the emergency rooms, the injuries and the illnesses and the loss of hope and the suicides have all piled up within me to the point that I must speak.”

Johnson laments that the complicated tragedy of alcohol abuse on reserves is for cultural and political reasons generally avoided in official reports or media treatments. The 1996 Royal Commission on Aboriginal Peoples’ lack of attention is particularly noteworthy. As Johnson notes, however, FASD – brain damage caused by maternal alcohol consumption during pregnancy – is central to the perpetuation of dysfunctional families on reserves.

Ottawa’s intrusion into native child welfare is complicated by the new requirement of “cultural continuity.”

It has been estimated that nearly two-thirds of Inuit women in Arctic Quebec drink during pregnancy. A recent academic study identified five demographics in which FASD is most prevalent worldwide. Indigenous children under the care of welfare agencies lie at the intersection of several of these categories. FASD was also identified as a potentially significant factor in the Lester Desjarlais inquiry. Contemplating a comprehensive solution of Indigenous child welfare problems without first recognizing the devastating effects of FASD and parental alcoholism seems inconceivable.

None of this is intended as a cultural or racial slur. Sober Indigenous parents are as capable of providing outstanding care for their children as any other group, and addictive parents of other races are similarly destructive to their children. But widespread parental alcohol abuse on and off reserves, and the interrelated pathologies of FASD, are scientific facts and must be tackled head-on. Attempts to deal with these issues indirectly or by second-hand measures have only added to these problems. The historical record of failure is clear.

From ad hoc use of residential schools to the Sixties Scoop

From the late 19th to the mid-20th century, when the now-reviled residential schools were in full operation, it was common practice for federal officials to use these schools as a safe haven for children who were not receiving proper care at home. In many cases an Indian Agent would contrive to protect children at risk by sending them to school.

A moving description can be found in Alan Fry’s novel How A People Die. While using the tools of fiction, Fry’s book is deeply informed by his work as an Indian Agent in rural B.C. throughout the 1950s and 1960s. “Men fought with their wives, families broke up, children were neglected and a death toll from accidents and violence in which alcohol was inevitably the decisive factor filled the pages of the small town papers,” Fry writes of his experience on reserves. He criticizes white authorities for their paternalism as well as native leaders for their inability to control the rampant alcoholism destroying their own communities.

Lacking formal means to apprehend neglected children, agents such as Fry relied on their own judgement to decide which children needed to be removed from their families. John Siebert, a researcher for the United Church, has similarly observed that residential schools “were used primarily for child welfare purposes – that is to say, most of the children in the schools were sent there to protect them from abuse and neglect in their family homes.” The 1967 Caldwell Report into conditions at residential schools found that 80 percent of the students at eight Saskatchewan schools were there due to “a welfare need of the family.”

Lacking a formal way to rescue native children from dysfunctional homes, federal Indian agents often used residential schools as a make-shift child welfare system.

The role of residential schools as flawed substitute for a properly functioning child welfare system helps explain the experiences of many former students. While not excusing the abuse or other problems that occurred within their walls, it should be recognized that federal officials were attempting to offer native children a form of state protection similar to what was available to non-Indigenous children at the time. This imperfect system came to an end when the residential schools were phased out in the late 1950s and early 1960s. Of course the problem of parental alcoholism – and the need to protect their children – did not disappear.

The provinces filled the gap. Granted limited jurisdiction to provide some child welfare services on reserves in 1951, in the 1960s they took over full responsibility. Ontario signed an Indian child welfare agreement with Ottawa in 1965, Manitoba a year later. Now, for the first time, Indigenous children were to be offered the same care and protection as all other children in Canada.

Having taken on this responsibility, however, provincial child welfare workers were often appalled by the conditions they encountered on reserves. Part of this can be ascribed to culture shock, but another significant factor was the high rate of chronic alcohol dependence among Indigenous parents. Faced with what they considered a pressing need to rescue children from problematic situations, provincial child welfare agencies encouraged the large-scale adoption of native children by non-native families, what is now called “The Sixties Scoop.”

A moving personal look into this era can be found in a 2015 memoir by native writer Annie Margaret Clair, Family secrets after the Sixties Scoop. Clair, a Mi’kmaq from the Elsipogtog First Nation in New Brunswick, was a ward of the state from age three; between 1973 and 1981 she lived in ten different foster homes on the reserve. As an adult, she requested a copy of her entire child welfare file in an effort to piece together her childhood. As she dramatically recalls:

“I undo the papers from the stack and lay them out in chronological order. Month by month, year by year; it’s like laying out pieces of a puzzle, the full image of which should be a version of a young me.

‘The children were left alone, mother has been gone five days and has not returned,’ reads a report marked APPREHENDED, dated 1974…

‘Mother was single mother with chronic alcoholism and no means to adequately care for children as she was frequently hospitalized due to drinking,’ reads an entry from 1975, signed by another social worker. ‘The house is so deteriorated that it is not possible to return the children at the present time.’”

Clair goes on to describe how she was sexually abused by a “man from my community.” Her sister was similarly abused. She recalls that when she tried to talk to adults on the reserve about the attacks, “The first thing they’d say was: ‘Gepuniegsuwe!’ or Would you stop lying!” Her mother later died in a house fire. “Growing up I was mad and angry at the world. I didn’t like that I was taken away from the love I could have gotten from my mom,” she writes. The tension between the doctrine of “cultural continuity” and the best interests of a child is readily apparent in Clair’s story. 

The ‘Sixties Scoop’ was a response by provincial child welfare workers to chronic alcoholism and dysfunction on reserves: Saskatchewan-born Indigenous singer Buffy Ste. Marie was adopted by a family in Massachusetts.

As with the residential school system it replaced, neither can the Sixties Scoop be judged an overall success. In his recent apology for Saskatchewan’s out-adoption of an estimated 20,000 Indigenous children from the 1950s through the 1980s, premier Scott Moe admitted these children were “caught between two worlds.” Cultural alienation and loss of familial connections had a severe impact on many. Yet it must also be acknowledged that out-adoption was another sincere attempt by government officials to discharge their duties towards neglected children.

And not every case can be judged a failure. Famed Indigenous singer Buffy Ste. Marie, for example, was born on a reserve in the Qu’Appelle Valley of Saskatchewan and raised by loving adoptive parents in Massachusetts who encouraged her to understand and appreciate her ancestry. There was no racist or sinister plot behind the Sixties Scoop – and allegations of cultural genocide are entirely libellous. Rather, it was a policy motivated by the real need to rescue children from dysfunctional situations. And that need still exists.

The Sixties Scoop devolves – literally and figuratively

Out-adoption was eventually abandoned in favour of devolution as provincial child welfare authorities relinquished most of their authority over reserves to local Indigenous agencies such as the DOCFS in Manitoba. As a sitting judge, I watched as this policy unfolded in real time.

Advocates assured provincial governments that as newly formed Indigenous agencies opened up and Indigenous leaders gained more control, the old problems would ease. Appropriate cultural influence would inevitably reduce the number of children in care. Some even claimed chronic Indigenous welfare problems would disappear altogether. I once expressed my skepticism to a highly placed welfare bureaucrat. He candidly, if naively, responded: “How could it possibly be worse than the current situation?”

As it turned out, it could. To the story of Lester Desjarlais, we have added the equally tragic stories of Tina Fontaine, Phoenix Sinclair, Serenity and Devon Freeman, to name just a few of the better-known entries from a long list of despair. In Manitoba, approximately 90 percent of the province’s 11,000 children under the care of a child welfare agency are Indigenous, either on or off reserve. The biological parents of these children are often themselves products of an Indigenized child welfare system.

And because off-reserve adoption has been so severely discouraged, many children are placed in temporary foster care instead of with permanent families. This means that when they reach adulthood they are often left to fend for themselves, without any reliable family supports. This is one major reason why the majority of homeless people on Winnipeg’s streets are believed to be former child welfare wards. Meanwhile, FASD takes its toll on reserves, generation after generation.

Many of the Indigenous organizations given responsibility for child welfare were initially incapable of protecting native kids. Training and education among staff were dramatically different from the provincially-run agencies and these problems were exacerbated by dysfunction and corruption within other reserve institutions, including school boards and local government, as the Lester Desjarlais inquiry painfully illustrated. Again, this is not a racially-motivated accusation; the size of many reserves’ polity leaves them especially prone to conflicts of interest and nepotism. The problem of “small democracies” is detailed in University of Calgary academic Tom Flanagan’s 2016 study Corruption and First Nations in Canada.

Today, staff at Indigenous-run agencies are much better credentialed and the organizations more professional. After several decades of devolution, the care provided to children at risk is now largely equivalent to provincially-run child welfare agencies. Yet the statistics continue to worsen. Indigenization alone is clearly not sufficient to remedy the massive problems facing Indigenous children. Regardless of who is in charge, the root causes remain: addiction, family breakdown and poor community oversight. It has even become common for Indigenous child welfare workers to be criticized for making the same difficult choices that federal and provincial child welfare workers once made during previous eras.

When devolution began, it was common for Indigenous agencies to declare that no native babies would ever be apprehended from maternity wards. Parental and cultural rights would trump the rights of children at risk. This belief is further embedded in Bill C-92 through its “cultural continuity” requirement. Yet Indigenous child welfare officials have lately come to realize that leaving a newborn baby with his or her mother can be so fraught with risk that immediate apprehension is the only safe option.

That was the situation in the high-profile G (DF) case, in which a Winnipeg-based Indigenous child welfare agency tried to detain an addicted pregnant mother for treatment. She had previously given birth to several brain-damaged babies, yet the Supreme Court of Canada ultimately decided that detention violated the mother’s rights and, hence, was unlawful. The child, and many others since, was therefore consigned to a fate of painfully low chances.

After more than 30 years on the bench, it was clear to me that governments and agencies have very little control over how parents actually care for their children, or the eventual outcomes. Child welfare workers, Indigenous or non-Indigenous, are all motivated by a deep desire to do what is best for children under their watch. If a child has become a permanent ward of the state, it is almost certain that his or her home life was thoroughly and irreparably dysfunctional. Accordingly, the only way to remedy the high number of native children in foster care is to tackle the root cases. Family dysfunction on reserves is not the fault of child welfare agencies. The blame lies with parents and their communities.

It is this difficult reality that the federal government was trying to cope with using residential schools, and the provinces with the Sixties Scoop. Given the subsequent failure of devolution to remedy the situation, it is impossible to imagine a further push to sever native child welfare from the rest of the country will yield the desired results.

A new federal formula for failure

If Canada truly wishes to reduce the number of Indigenous children in foster care – and all Canadians have a stake in this outcome − we must start by emphasizing the importance of sobriety, parental responsibility and family stability among all citizens. Instead, Ottawa has chosen to place the blame for native child welfare failures on past injustices such as colonialism and institutional racism.

Taxpayers are on the hook for an estimated $8 billion due to a controversial Canadian Human Rights Tribunal ruling on native child welfare services last year.

An extreme manifestation of this thinking is the Canadian Human Rights Tribunal ruling that last September ordered Ottawa to pay up to $40,000 to each First Nations child who was placed in foster care. The same compensation is to go to any parents or grandparents whose children or grandchildren were taken away, and to kids who were refused essential services. The tribunal argues the government deliberately underfunded child welfare services on reserves; had government simply spent more money, it apparently would have been unnecessary to remove these children from their biological parents. The hard reality is that the tragedy of native child welfare is almost always a matter of parental attention, not financial resources. The total payout required is estimated at a staggering $8 billion. 

Beyond the sheer size of this amount, the underlying logic is perverse. Indigenous parents who properly cared for and raised their children, on or off reserve, will get nothing while the worst parents are in line for a fabulous payout. As the renowned African-American social theorist Thomas Sowell once said: “Have we reached the ultimate stage of absurdity where some people are held responsible for things that happened before they were born, while others are not held responsible for what they are themselves doing today?”

While Ottawa has said it will appeal the tribunal ruling – a position reiterated, if somewhat reluctantly, by Trudeau during last fall’s election campaign – the government is already making plans to offer its own compensation package. Given NDP leader Jagmeet Singh’s moralistic posturing during the campaign demanding that the full $8 billion be paid without question, combined with the political realities of a minority government, taxpayers should brace for impact.

All children in Canada, regardless of where they live, deserve the same opportunities to live, be loved and to thrive.

What every child deserves

After an absence of many decades, the federal government is returning to the field of native child welfare. And its solution to the manifest problems in this area is based on dangerously flawed thinking. Presenting further Indigenization as a cure-all assumes the system’s flaws to date have resulted from issues outside native control. This is simply not true. At its core, the Indigenous child welfare system is broken because so many Indigenous families are broken. Until this is recognized and confronted, it will be impossible to make progress. 

Author Brian Giesbrecht.

Alleging it can be fixed by an administrative switch, or by excusing native communities from the duties expected of households and the standards of care provided to children in the rest of Canada, is simply untrue. And blaming colonialism or other past injustices is a triumph of the victim narrative that will put more Indigenous children at risk. “If we allow ourselves to believe the victim story and we live by it, we become victims,” Harold Johnson writes in Firewater. “And victims can never fix their own situations.”

Every Canadian should be deeply concerned about the welfare of Indigenous children, for every child in Canada deserves the same opportunity to live, be loved and to thrive.

Brian Giesbrecht is a retired Manitoba provincial court judge, Senior Fellow with the Frontier Center for Public Policy and frequent commentator on public policy issues.

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