Lawsuit on behalf of Aboriginal foster kids and adopted kids

[Class Action Lawsuit]

Class Action Lawsuit on behalf of Aboriginal foster kids and adopted kids. . .

News and Comment
by Tehaliwaskenhas - Bob Kennedy ( Onyota'a:ka / Oneida )
Copyright
Turtle Island Native Network
http://www.turtleisland.org


April 18, 2009

Most days my personal struggle seems to be a battle between acknowledging and suppressing memories of my childhood in foster care. I tend to opt to use my finely-honed skills of denial and avoidance. I do not enjoy ( or do I, as some ex-girlfriends have suggested ) resurrecting those familiar forces of pain.

When you are brutalized as a child, it is a real challenge to find self-worth as an adult. When I was in my teens and twenties I didn't give a damn about the experiences in foster homes. I did what most young people do best - party. I also was a workaholic and so there was little time, and certainly no desire to revist the life of a child. But then when you hit mid-life, the fog seems to lift, sobriety helps that process quite nicely thank you. Not only do you want to anaylze what happened to you, you also want to know something extremely basic. Who am I? Seriously!

The mind begins to recall what it worked so hard for so long to suppress. It's depressing. Literally! A lifetime of trying to dodge depression, dancing with addictions and suicide, and all I can say is, yes life is an adventure, my friends.

Getting Over the Past isn't an option. Getting Past It, is my goal. But some days remembering the abuse - physical, emotional and sexual seems to play out like some kind of addiction too. You get caught in this loop where you press the replay button once too often.

Choices and consequences. Accepting responsibility. These seem like reasonable considerations that help light our life's path. I try not to play in the blame game.

But then along comes an invitation to participate in a lawsuit against Canada.

I am seriously considering it.

The federal government of Canada is being accused of "identity genocide of children targeted at Indian families and communities in Ontario".

The accusation is part of a class action lawsuit on behalf of at least sixteen thousand Aboriginal people who, as children, were either adopted or put in foster homes and "were systemically denied the opportunity to preserve their identity".

The lawsuit filed in the Superior Court of Ontario in February also accuses Canada of "breach of its non-delegable fiduciary obligation, duty of care and protection of aboriginal rights". The suit seeks damages of $85,000 for each claimant - $1.36 Billion.

A copy of the Statement of Claim obtained by Turtle Island Native Network states, "identity genocide of children" means the damage or harm caused by the deliberate creation and implementation of policy, program and practices that systemically attempt to eradicate the particular cultural, social, linguistic, customs, traditions, and spirituality of the child's indigenous family, extended family and community.

The representative Plaintiffs on behalf of the Class Action lawsuit are Marcia Brown, a member of the Temagami First Nation, and Robert Commanda. The lawsuit explains, ". . . as children, they were removed from their indigenous family, extended family and community and exposed to the deliberate and prolonged implementation of systemic child welfare policy, practices and programs . . ."

When Marcia Brown was 4 or 5 years old, a children's aid society removed her and an older sister from their family. The family consisted of five other siblings, a mother and father, extended maternal and paternal relatives, and an indigenous Indian community. She was later adopted at the age of 9. Until she was 17 "she was denied any reasonable contact with her family, relatives and community and was denied any reasonable opportunity to maintain any connection with the traditions, language, customs, heritage and culture of her family of birth. She lost the use of the only language she spoke before she was removed. She lost all contact with the other sister who was removed with her. Her name was changed when she was adopted. Her child rearing was as a non-native, non-Indian person with no reference at all to her identity as an Indian".

It wasn't until Robert Commanda was 18 years old that he began to learn of his Indian connections at Dokis Reserve and Garden River. In Toronto at the Native Friendship Centre, he first learned of information that enabled him to begin the process of securing his identity as an Indian person. He finally obtained his birth certificate. No one had previously provided it to him. When Robert Commanda was two years old he and his three borthers were removed from their home by the children's aid society in the early 1960s ( part of the infamous Sixties Scoop ). He lived in foster homes in Ontario throughout his childhood. He was raised by lion-native non-Indian persons with no reference ever made to his native or Indian culture or identity. He was denied any reasonable opportunity to maintain contact with his Indian family, relatives and community. He was also "denied any reasonable opportunity to maintain any connection with the traditions, language, customs, heritage and culture of his family of birth and community". He entered adulthood with "no knowledge or experience of what it meant to be an Indian". In none of the places where he lived was he offered "any opportunity to know of or maintain his cultural identity". No one caring for him showed him pictures or related to him any information about his Indian family, extended family and community.

Here is more background on the Class Action lawsuit on behalf of Aboriginal children in Ontario who were wrongly placed in foster homes or adopted. . .

On December 1, 1965, Canada entered into the "Canada-Ontario Welfare Agreement" whereby Canada delegated the provision of child welfare services to Ontario. Within Canada, the only jurisdiction willing to enter into such an agreement was Ontario. The Agreement was the culmination of prior delegation of arrangements for Indian child welfare services by Canada and Ontario beginning in the mid-1950s.

The Agreement meant that authorities other than Canada became directly responsible for the delivery of child welfare services to Indian children exclusively in Ontario. As a result, Indian or native children in Ontario, who were apprehended and removed from their indigenous family and community, were placed in the care of non-Indian and non-native adoptive or foster homes where they were systemically denied the opportunity to preserve their identity.

Lawyers will argue that the 1965 Canada-Ontario Welfare Agreement constituted an improper and unlawful delegation of Canada's constitutional obligations, the consequence of which was identity genocide of children targeted at Indian families and communities in Ontario.

"Indian children and their families were entitled to a special duty of care, good faith, honour, honesty and loyalty from Canada pursuant to Canada's constitutional obligations and Canada's duty to act in the best interests of Indian children who were particularly vulnerable."

The lawsuit explains that the systemic practices, programs and policy implementation giving rise to identity genocide for the Class effectively ended on January 1, 1985 with the coming into force of the Child and Family Services Act, S.O. 1984, c. 55. This legislation, amongst other things, gave necessary status to the native or Indian community in all child welfare decisions concerning Indian or native children, and served as a necessary correction to Canada's breach of its duties. "Ontario, having recognized the consequences of Canada's failure to protect the identity of native or Indian children, amended its legislation within its constitutional authority over child welfare."

By way of comment I want to say that those of us who were scooped from our families by the childrens aid society know the following description contained in the Statement of Claim to be our reality too.

"Common to the Class is the fact of childhood isolation from their constitutionally protected identity. Indian or native traditions, language, customs, heritage, spirituality and culture were extinguished through foster or adoptive care by non-Indian or non-native persons and systemic practices, programs and policies that promoted, or did nothing to avoid the extinction of identity.

The native or Indian child members of the Class emerged from childhood with a struggle over identity, and a further struggle in the pursuit of information in order to secure an identity. This experience of anger, disappointment and rejection as a foreigner or stranger in both mainstream (non-native/non-Indian) society and the society of the indigenous community is a result of Canada's derogation from, and breach of its duty of care and fiduciary obligation when it participated in the implementation of systemic practices, programs or policies that Canada knew or should have reasonably known would cause irreparable and enduring harm to vulnerable children.

The Class consists of aboriginal persons who, as children, enjoyed aboriginal rights, one of which was their right to identity, and which identity existed and was exercised at all relevant times pursuant to section 35(1) of the Constitution Act, 1982.

Identity genocide of children contravenes international convention law to which Canada is a party, and is an independent actionable wrong."

- - -