AND THIS IS WHY MY HEART BREAKS

Report of the Aboriginal Committee, Community Panel,
Family and Children's Services Legislation Review in British Columbia,
Liberating Our Children by L. White and E. Jacobs, 1992
Imposition of European Law

Coercion versus Consensus

The coming of Europeans to North America was characterized by a clash between the European culture and Aboriginal culture. The cultural chauvinism of the Europeans resulted in tragic consequences for our people. History since that time has been one of colonization, oppression and genocide.

At the time of contact, Europe was well into its transition into modern states, complete with political institutions and systems of state power. The development of these structures and the cultural values underlying them had been developed in the writings of early social theorists, such as Thomas Hobbes and John Locke. Their theories laid the justification for a system of power and authority. Both Hobbes and Locke justified the need for a state system of power over its citizens by constructing a hypothetical description of human existence without such a structure. This condition they described as a State of Nature.

In this "State of Nature" they described human nature as being characterized by greed and aggression. Therefore, they theorized that only a strong sovereign state, with the instruments necessary to exercise its political will, could keep these negative aspects of human nature in check. This view of human nature was supported by the European Christian formulation of the concept of the universality of original sin. The Hobbesian European view divided people into two classifications that were mutually exclusive: those people who had been brought under the civil control of the state and its structure of power and authority (the civilized); and those people who lived in a State of Nature, subjecting themselves and each other to their unrestrained human characteristics of greed and aggression (the uncivilized). Because Europeans knew no other system -- and their social theorists suggested no other condition under which human society could exist -- they failed to recognize the extensive social relations that existed within our Nations, which allowed us to live in peace, prosperity and stability. Instead, they saw a void. They felt obliged to save our people from ourselves by imposing a European structure of power and authority over our lives and a European Christian structure over our souls.

Along with other cultural assumptions, Europeans brought their own view of family life. This was a view in which valid marriage was only confirmed through Christian traditions and ceremony. Children were the property of parents. Nuclear families, made up of parents and their children, constituted the basic family relationship. Children were the property of parents under the authority of the husband and father. The English word "family" is derived from its Latin root "familia" meaning a household of slaves. This attitude ignored the whole complexity of roles and relationship,, that existed within extended Aboriginal families and clans, and the process of consensus upon which they were based.

"The conflict over the rights of aboriginal people in British Columbia is not solely a product of our time. The dispute has its genesis in the early years of European settlement. It is a conflict that speaks to the difficulties in reconciling fundamentally different philosophical and cultural systems."
The Report of the
British Columbia
Claims Task Force

Title to the Land

Europeans did not only bring cultural chauvinism to North America. They also brought concepts of land use and ownership that thinly veiled the most systematic theft of land in the history of human existence. Because Europeans had a view of Nature as a thing to be brought under human control, lands that were not so dominated were considered unused. Coupled with that view was the concept of private land ownership. Consequently, "undeveloped" land was unused land and unused land was unowned land. Based on this cultural justification, Europeans were to engage in, and condone, a violation of their own international laws regarding the relations between nations. They confiscated virtually all the territories of the Aboriginal Nations of North America. As they were later to change our names and the names of our children, they also changed the names of all our places: our rivers, our lakes, our mountains, our lands and our seas.

On arriving in North America, Europeans found a bountiful land inhabited by our people. Our philosophy is based on sharing and therefore we were prepared to share the wealth of our bounty with these newcomers. Because our philosophy demands us to respect each other's Nations, we automatically extended that respect to European Nations and their people. We incorrectly assumed that this same respect would be extended to our Nations and our territories. We never assumed that sharing our resources would be interpreted as surrendering our territory.

The contemplated relationship between First Nations and Europeans establishing themselves in North America is well depicted in the designs of the Two Row Wampum Belt. Rows of purple beads border the belt, divided by rows of white beads. The purple beads represent First Nations on one side and Europeans on the other. The white beads divide the two distinct peoples and prevent one from enforcing its customs, beliefs and systems upon the other.

Europeans' violations of this formal commitment, despite the many treaties and promises, are well documented. These violations eventually forced violent confrontations between First Nations and European settlers - confrontations that eventually resulted in a resistance in which the Ottawa, Potawatomi, Ojibway and Huron Nations united and drove the British garrisons out of all their forts west of Fort Pitt, culminating in the capture of the townsite of Detroit itself.

"We are aware that the B.C. Government claims our country, like all other Indian territory in B.C.; but we deny their right to it. We never gave it or sold it to them. They certainly never got the title to the country from us, neither by agreement nor conquest, and none other than us could have any right to give them title."
Declaration of the
Lillooet Tribe,
1910 (Drake-Terry, 1989)

The English government realized its precarious position in North America, being vastly out-numbered by Aboriginal people. In response to this threat, it enacted a formalization of the relationships depicted by the Two Row Wampum Belt. In 1763, the English Crown issued a Proclamation that spelt out the relationship between Europeans and our Nations. In that document the English king recognized the First Nations of North America, and our right to be unmolested in our territories. It provided that the only way England, and her subjects, could come to claim title to lands in North America was through a process by which our Nations voluntarily consented. It also placed a trust relationship upon the English government to remove all European trespassers on unsurrendered land of First Nations.

"...it is just and reasonable, and essential... that the Nations or Tribes of Indians ... should not be molested or disturbed in the Possession of... (their) Territories as, not having been ceded to or, purchased by Us..."
Royal Proclamation, 1763

This same Proclamation also constituted all English colonial authority in North America acquired through the surrender of France, including Florida, Grenada and Canada. It was, therefore, the first piece of English constitutional law in Canada. As a constitutional document, it not only laid out rights and privileges, but it also put limitations on the extent of the authority of English colonial government. As it applies to unsurrendered Aboriginal land, it limited colonial governments to operating in the manner prescribed in the Proclamation. The Proclamation has never been repealed or superseded by other constitutional law. It exists today, and calls into question the jurisdiction of federal and provincial laws' and the authorities of their courts to enforce those laws in all unsurrendered land of First Nations.

In 1867, the British Parliament passed the British North America Act confederating the four English colonies into the Dominion of Canada, and providing a mechanism for Canada to extend its dominion over all the territory west to the Pacific Ocean. Our Nations were not part of this process, and without our consent Canada could not legally extend its dominion. As a result, the Canadian government entered into a treaty process with First Nations in an attempt to at least appear to comply with the Royal Proclamation regarding the sovereignty of Aboriginal land.

This treaty-signing process did not extend to most of British Columbia. In the early days of the Hudson's Bay Company's involvement on southern Vancouver Island, the governor at that time, Sir James Douglas, entered into a number of treaties with Aboriginal communities. In those treaties, small tracts of land were made available by Aboriginal people for use by the Hudson's Bay Company and later some settlement by Europeans. The treaty-signing process undertaken by the Canadian Government only extended into the land now known as British Columbia as far as to include the northeastern corner up to the summit of the Rocky Mountains.

The remainder of the land now known as British Columbia is not covered by treaty. As a result, all non-Aboriginal occupancy and claims to ownership violate the Royal Proclamation of 1763.

Despite the failure to comply with the provisions of the Royal Proclamation of 1763, the colonial administration of the Crown colony of British Columbia passed numerous laws and ordinances pertaining to land usage, ownership and occupancy in the unsurrendered portions of British Columbia. Since Confederation, subsequent governments have continually adopted the position that the passing of those laws and ordinances has somehow legalized a transfer of tide in the land to non-Aboriginal people, and have extended the jurisdiction of non-Aboriginal governments and courts onto those lands. This proposition is being challenged by First Nations.

"...We... require all Persons whatever, who have either wilfully or inadvertently seated themselves upon... Lands, which not having been ceded to, or purchased by Us, are still reserved for Indians as aforesaid, forthwith to remove themselves..."
Royal Proclamation, 1763

The End of Living and the Beginning of Surviving

Europeans also brought with them diseases to which we had never been exposed and had not developed immunities. These diseases, especially smallpox, decimated the Aboriginal population of North America. Disease wiped out 98% of the Aboriginal population of what is now known as British Columbia. Vast gaps were left in the social fabric of Aboriginal life. Disease indiscriminately took leaders, healers, teachers, philosophers, parents, grandparents and children alike.

The confiscation of land left many Nations in the interior of British Columbia without the means of sustaining their existence. At the beginning of the 20th century, many of those Nations, denied access to the resources necessary for sustenance, were ravaged by starvation.
Government policy since Confederation continued to be characterized by cultural chauvinism, resulting in a multi-faceted campaign of cultural genocide aimed at the total assimilation of Aboriginal people into Canadian society. Federal laws were enacted, outlawing the traditional ceremonies that reinforced the structure of First Nations government. Aboriginal people were prohibited by law from attempting to seek redress through the Canadian court system. It was even against the law for our people to gather to discuss these injustices or to hire lawyers to protect our lands against the illegal claims of trespassers.

The theft of our lands and resources had the obvious effect of totally undermining traditional Aboriginal economies. This was coupled with a policy of ensuring that our people could not compete with the emerging European economy. There are numerous examples of government policy that had the effect of handicapping individual Aboriginal people from competing, or even surviving, in the contemporary economy of British Columbia.

When the colonial government of British Columbia introduced its system of laws and ordinances, which allowed for the non-Aboriginal use of unsurrendered Aboriginal land, they used a process of pre-emption of land. This allowed any individual to stake a claim on land he intended to use for the purpose of economic development or settlement. Our people were denied, by law, the right to participate in the process of pre-emption. While small parcels of land were set aside and reserved for our peoples, in many cases the accompanying water rights were not reserved for our usage. Often the water was diverted from our lands, thus making it impossible for us to harvest food. Laws were introduced to prohibit our people from using motorized vessels in the fishing industry. The Indian Act, while purporting to protect our land, disqualified our people from obtaining commercial financing and mortgages. Mineral leases and forest leases were systematically denied to our peoples. Even our traditional traplines were systematically destroyed by the onslaught of non-Aboriginal industry. As a result, the doors to entrepreneurial involvement of our peoples in the economy of British Columbia were closed.

It has been well documented that the residential school system failed to provide our people with adequate or relevant preparation for employment. For example, Haida people from Haida Gwaii (Queen Charlotte Islands) were sent to residential schools as far away as Edmonton to learn agricultural pursuits. The geography of Haida Gwaii, however, is not conducive to agricultural activity.

The policy of the federal Department of Indian Affairs, limiting Aboriginal education to grade 8, prevented our people from competing in the managerial or professional categories of the economy. Furthermore, arbitrary qualifying education levels prohibited our people from competing in trades. For example, for entry into most building trades, apprenticeships required a grade 10 education.

The effect of these policies was to relegate our people to the fringes of economic existence in British Columbia. These discriminatory policies have resulted in an impoverishment of our people and extensive dependency on a system of welfare for our existence.

As a result of this impoverishment, our people have not been in a position to exercise even the most basic personal decisions enjoyed by the majority of Canadians. Without control of financial resources, we are denied control over our housing, our social and recreational services, our health care and other basic family needs. While many of these restrictions and prohibitions against our participation in the economy have now been removed, they have had the effect of creating several generations of welfare dependency, thereby entrenching role models of welfare dependency for the present generation of our people.

"With the onset of Europeans came almost total annihilation, where... the Indian populations in this country were reduced by as much as 98% of their precontact levels."
Coldwater Indian Band

Cultural Genocide

The British North America Act, which constituted Canada as a country, divided existing colonial government responsibil5ities and authorities between the federal and provincial levels of government. Section 91.24 of the British North America Act gave the federal government exclusive jurisdiction to pass laws with respect to Indians and lands belonging to Indians. This section has been interpreted by British jurors as giving the federal government the exclusive jurisdiction to enforce the provisions of the Royal Proclamation of 1763. It transfers to the federal government the Crown's trust obligation to ensure that our people are not molested in our unsurrendered lands and that trespassers are removed from our lands.

"The federal government of the day saw Indians as a 'problem' and sought ways to eliminate its problem. The Federal document 'Canada's Plan to Liquidate the Indian Problem' written in the 1940s clearly outlined the objective to assimilate Indians into mainstream Canadian society."
Squamish Nation Council

Instead of protecting the guaranteed rights of Aboriginal people, Section 91.24 of the British North America Act was used by the federal government to pass an extensive piece of legislation called the Indian Act. This act, and its enforcement, has subsequently come to govern and control every aspect of the life of Aboriginal people.

Under the authority of the Indian Act, the federal government established a system of residential schools for our people and enforced attendance and residency in those schools. The government's goal in creating them was to separate our people from our culture, and to instill European cultural values in us. This was to be accomplished by creating the greatest possible separation between our children and their extended families, minimizing the opportunities of our cultural values being passed on to our children. For many victims of the residential school system, not only were cultural values lost, but the experience of normal family relationships and the natural process of parenting were lost as well. In their place was substituted an example of child care characterized by authoritarianism, often to the point of physical abuse, a lack of compassion, and, in many cases, sexual abuse. For those victims, the residential school system blurred natural limits on what normally would develop as mature love and sexual relationships.

"The survival of any distinct cultural group or society lies in its ability to perpetuate its existence, and this is basically done through the teachings of its youth in all that is vital to the social fabric of the community's life line."
Coldwater Indian Band

"The 1951 Indian Act Amendments brought into full operation the federal government's assimilationist policy. The three areas where policy was mainly implemented were in child protection, membership sections and the enfranchisement system."
Squamish Nation Council

The residential school process of assimilation also included the glorification of European cultural values and a demeaning of Aboriginal culture, history and existence. Children were encouraged to despise in themselves all those things which were essential to their identity. This process was extremely damaging to the self-image of the victims of the system. The residential school system spanned several generations, starting just before the beginning of the 20th century and extending until the late 1960s, when it was phased out.

In 1951, the federal government made a major revision to the Indian Act. Part of that revision was the inclusion of Section 88 of the Indian Act, which provides that, in the absence of federal law, provincial laws of a general application will apply to Indians. The federal government has never passed an Aboriginal family or child welfare act. As a result, provincial family and child protection legislation is deemed to apply to Indians. British Columbia child protection legislation enabled the Superintendent of Family and Child Service to apprehend children considered to be in need of protection, and allowed the courts to place those children in homes that were considered to be in "the best interests of the child". Prevalent social views in the 1950s and 1960s were that our children, facing the conditions of poverty forced upon our communities, needed protection. The lack of running water in an Aboriginal household was often sufficient excuse for the apprehension of a child. The attitudes of cultural chauvinism and assimilation continued to prevail. The "best interests of the child" was, and still is, interpreted as rescuing the children from their Aboriginal condition and placing them in a non-Aboriginal environment where they can learn the dominant cultural values. Huge sums of money are paid to non-Aboriginal people to foster our children. Our children are now the commodity basis for a new industry: the fostering of Aboriginal children.

The homes in which our children are placed range from those of caring, well-intentioned individuals, to places of slave labour and physical, emotional and sexual abuse.

"The centrepiece of the federal government's exercise of jurisdiction from 1867 to the 1950s and 60s was the residential school system. Generations of Indian families were negatively affected by this process of forced cultural/social genocide."
Coldwater Indian Band

"Abuse and violence resulted from colonization and through the imposition of residential schools."
Saanich Indian
School Board


"It is the belief of this community that we must preserve and strengthen the Ktunaxa culture and identity of our people. A large part of that culture was an extended family system that was almost totally eradicated by the residential school system and the government's attempts to assimilate Indian people into the non-native culture and society. St. Mary's relies on this extended family system when dealing with child welfare issues."
St. Mary's Indian Band

The violent effects of the most negative of these homes are tragic for its victims. Even the best of these homes are not healthy places for our children. Anglo-Canadian foster parents are not culturally equipped to create an environment in which a positive Aboriginal self-image can develop. In most cases, our children are taught to demean those things about themselves that are Aboriginal. Meanwhile, they are expected to emulate normal child development by imitating the role model behaviour of their Anglo-Canadian foster or adoptive parents. The impossibility of emulating the genetic characteristics of their Caucasian caretakers results in an identity crisis unresolvable in this environment. In many cases this leads to behavioural problems, causing the alternative foster or adoption relationship to break down. The Aboriginal child simply cannot live up to the assimilationist expectations of the non-Aboriginal caretaker. As a result, many of these children are transferred from one home to another as each relationship breaks down. With each breakdown and subsequent transfer, the children experience a further feeling of rejection and a further damaging blow to their self-image. Each of these subsequent blows generally increases the frequency of acting-out or self-destructive behaviour.

"With greater focus around the world in the ideas and ideals of justice and human rights, came a different level of how to control Indian people in this country... The Government of Canada in its 'cover my ass' attitude with the governing bodies in the United Nations, perpetuated more injustices because the changes that were implemented did not take into consideration any account of the historical and contemporary injustices against Indian people."
Coldwater Indian Band

The scope of the apprehension and foster placement of our children in the 1950s and 1960s was so extensive it is now known as the "60s Scoop". In 1955, 1% of the children in care of the Superintendent in British Columbia were Aboriginal children. By 1960, 40% of the children were Aboriginal. In some of our communities, every child was, at one point in his or her life, apprehended.

The Indian Act had many major devastating effects on the family life of our people. It defines who is entitled to be registered as an Indian and reside on an Indian reserve. When the process of registering Indians was undertaken, many people were left off the list and subsequently they, and their descendants, never became registered as Indians. Many Aboriginal babies did not have their births registered and so they also failed to become registered as Indians. Many First Nations straddle the Canadian-American border, both at the 49th parallel and the Alaska panhandle. Aboriginal children born outside Canada are not registered, even though many members of their family might be registered on the Canadian side. Aboriginal people, by moving to Canada from parts of the United States, are not eligible to be registered as Indians.
There were also provisions in the Indian Act by which our people could lose their rights as Indians. Prior to 1951, Aboriginal people registered under the provisions of the Indian Act were subject to numerous prohibitions and were denied many of their civil rights, including the right to vote. Many people were encouraged to give up their rights as Indians in order to exercise their civil rights.

"It is painfully obvious that the provincial government has failed dismally in previous attempts to fulfill its child protection role especially in regard to Native children."
Ktunaxa/Kinbasket
Tribal Council


"How can strangers come into their home and take their children without ever having lived in their family."
Metis Council
of Port Alberni


"There is something inherently wrong in a system that will pay 'strangers' more money to look after our children than they would allot to the Aboriginal family."
Louis Riel
Metis Association

The Department of Indian Affairs only provided an education up to a maximum of grade 8 for Aboriginal children. The public schools denied access to Aboriginal children registered under the Indian Act and therefore children wishing to proceed with their education were forced to surrender their rights as Indians. Aboriginal people who left the reserve for a long period were arbitrarily removed from the list of registered Indians by the Indian Agent. As a result, most of the Aboriginal people who served in World War I or World War II lost their rights as Indians. The eligibility requirement to be registered as an Indian was dependent upon one's parents being registered, and therefore if a person lost or surrendered their rights, then their children were also ineligible to become registered as Indians.

The most devastating section of this legislation provided that an Aboriginal woman marrying a man who was not a registered Indian would lose her rights, and her children would be ineligible to be registered as Indians. That section was repealed in 1985 in the provisions of Bill C-3 1; however, much of its effects are still being felt even by those people who qualified for reinstatement. Bill C-31 does not extend to all the descendants of people who lost their rights through marriage. Re-instatement of aboriginal people under Bill C-31 does not automatically result in those people being reinstated on Band lists and therefore requalifled to live on lands reserved for Indians.

"During the past few years, [we] have been very concerned about the number of children that have been apprehended and placed in non-Native homes... There have been broken family ties, loss of Native Indian culture, loss of Native language, and lack of self-esteem and respect."
Shackan-Nooaitch
Administration


"Our children are not for sale at any price!"
Louis Riel
Metis Association


"...little has been done to address the needs of children and families who do become entrenched within the child welfare system."
Cowichan Band

Being registered as an Indian encompasses many things. It arbitrarily defines membership in a Nation, and it determines eligibility for education, health care, and some other social programs extended by the federal government only to registered Indians. More importantly, however, registration defines access to residency on land reserved for Indians. The effects of laws that denied Aboriginal people their rights as Indians created numerous divisions within extended families. Grandparents, for example, might be registered and eligible to live on a reserve, while their children have lost their rights and are not eligible to reside on a reserve. Consequently, the grandchildren are not eligible to reside on a reserve, the grandparents are denied their traditional role in the care of the children, and the children are denied the opportunity of learning the teaching of their grandparents. The act even divided siblings into status and non-status Indians. As a result, aunts and uncles are not in a position to exercise their responsibility with respect to their brothers' and sisters' children. The Indian Act undermines the whole fabric of social responsibilities that had enabled First Nations to live in peace, stability and prosperity since time immemorial. The act itself is the result of a culturally chauvinistic government, bent on a policy of the assimilation of our people.

"Your methods of removing children from their families has created a lot of sorrow in communities, sorrows which will take generations to mend."
Metis Council
of Port Alberni


"Native children continue to represent a disproportionately high number of the total children in care in British Columbia... largely the result of an overzealous Ministry of Social Services undermining the role of Native communities as protectors of their own children."
Ktunaxa/Kinbasket
Tribal Council

The attempt at assimilation of Aboriginal people was unsuccessful. We continue to exist as a separate and distinct people. Our Nations, complete with our cultures and traditions, also continue to thrive despite the massive onslaught against us. However, while the effect of the government policy of assimilation has not resulted in assimilation, it has created a state of economic dependency.

The arbitrary effects of disease, starvation and impoverishment dealt a serious blow to the extended family traditions of some of our Nations. The gaps left by these catastrophes resulted in large holes in the network of supports and responsibilities previously available to the Aboriginal child and practised by family members.


"The philosophy [was] designed to make White men out of Indians."
Coldwater Indian Band

"...First Nations people through sheer will and perseverance have survived their own history of colonization and the pain associated with that."
Cowichan Band

The system of residential schools, followed by the years of apprehension and placement of our children in non-Aboriginal homes, resulted in large numbers of our children not being raised in situations where the traditional responsibilities could be passed down to them. In many cases we were also denied the opportunity to learn the basic parenting practices used by our people since the beginning of time. Since there was no nurturing in these schools it was very difficult for the children to develop the natural process of providing nurturing to their children. Our co-operative and supportive child care practices were replaced by authoritarian practices based on punishment and coercion taught and reinforced in the Anglo-Canadian residential schools and foster caretaking homes. Alcohol, drug, physical and sexual abuse are all effects and symptoms of the degree to which our extended family practices were undermined and damaged.

In response to the obvious social needs resulting from these experiences, government policy has used the dependency of our people to formulate European cultural approaches to dealing with these problems, based on treating the individual. Our traditional community-based approaches to resolving problems have been replaced by European medical models of treating individuals in isolation from their social environment. In most cases, this type of treatment has been unsuccessful in solving problems for us. The individual has been treated and returned to the dysfunctional social environment. The failures of this approach have been used to justify the continued apprehension of our children, thereby perpetuating a cycle of cultural confusion.
One of the most devastating measures of the effects of cultural genocide lies in the rate of suicide in a community. While Aboriginal suicide levels are much higher than average Canadian levels, a recent study demonstrated that Aboriginal suicide rates are not the same across all our Nations. There is a very high correlation between Aboriginal suicide and the extent to which traditional Aboriginal decision-making practices have been dismantled.