The Federal Court of Canada has certified a class-action lawsuit against the federal government on behalf of off-reserve Indigenous children who were removed from their families and forced into non-Indigenous foster care between 1992 and 2019.
Judge Michael Phelan’s ruling includes status and non-status Indians, Inuit and Métis individuals who were not living on reserves during the defined time period. The class action will pursue the recovery of specific costs and restitution on behalf of those harmed by Canada’s Indigenous child welfare system.
Lead plaintiff Cheyenne Stonechild is a 26-year-old Nehiyawewin (Cree) woman and a member of the Muscowpetung Saulteaux Nation in southern Saskatchewan. Stonechild has spent years fighting for Indigenous justice – and for her lost childhood.
“No one wants to become a statistic, but those who become one rarely have a voice,” said Stonechild. “I was eight years old when I became a statistic. I was taken away from my mother and placed in state care.”
She was one of the thousands of Indigenous children who, although making up only 5% of the total child population, represent more than 50% of the children in foster and state care in Canada.
Stonechild is a survivor of the “Millennium Scoop”, a time period between 1992 and 2019 when critics say Canada’s foster care and adoption system was used to assimilate Indigenous children. It’s an intergenerational trauma.
“My mother was a survivor of the ‘Sixties Scoop’ – one of the 20,000 or so Indigenous children adopted out to predominantly white families,” explained Stonechild. “My kohkom [grandmother] is a survivor of residential schools.”
In 2017, a $750 million deal settled a class-action lawsuit by Sixties Scoop survivors. As of June 2022, a total of 20,495 class members have had their claims approved.
Recent data shows that when compared with the number of Indigenous people in residential schools at its height, there are three times as many Indigenous children in state care today. Although the process of Indigenous assimilation began with residential schools, it did not end with their final closure in 1996, instead continuing under the policies of the Indigenous child welfare system, Stonechild argued.
This certification comes at an important time. In early July, the federal government signed a landmark $20 billion agreement to compensate on-reserve children and families affected by Canada’s discriminatory child welfare system. The settlement is the largest in Canadian history, according to Indigenous Services Canada.
However, the deal excludes off-reserve individuals, even though most children placed in government control were not living on reserves when they were taken from their families.
“When Canada only agrees to settle claims concerning children who had been on-reserve when apprehended and placed into care, this begs the question: Why this distinction? Was I less Indigenous because I was not on-reserve when I was separated from my mother as a child?” asked Stonechild.
Already stripped of their families and cultures, she says that keeping off-reserve children out of child welfare settlement claims is Ottawa’s attempt to deny their Indigenous identity.
“[For the federal government], if you live off-reserve, you are no longer truly Indigenous and no longer a federal responsibility. One less Indian in the Indian problem,” Stonechild observed. “Canada’s cruel logic is, ‘We won’t take responsibility for the policies of assimilation regarding those we consider to have already been assimilated.’ It’s a doubling-down on assimilation.”
Working alongside Stonechild is Vancouver lawyer Angela Bespflug, who says the Federal Court certification of the lawsuit gives reason for hope, even though the team knows it will be a “lengthy battle.”
“Canada has repeatedly failed to protect the Indigenous identity of off-reserve children. The Federal Court’s certification signals that Canada may finally be held to account for that. The decision is historic and signals an important shift in the law,” said Bespflug.
She stated that the current overrepresentation of Indigenous children in the country’s child welfare system represents a “humanitarian crisis”.
“Indigenous children are no less Indigenous because they live off-reserve. It is fundamentally wrong that Canada has agreed to compensate on-reserve children while leaving off-reserve children out in the cold.”
Bespflug said Canada needs to negotiate a resolution. “Failing this, we will press forward with the litigation. Our goal is to not only obtain compensation for survivors but, also – with the help of experts – to revamp Canada’s broken Indigenous child welfare system.”
The court ruling deemed a single, national class-action as preferable to 13 provincial and territorial legal actions across the country.
“At a time of truth and reconciliation, federal responsibility to Indigenous children should not be hidden behind provincial or territorial walls,” wrote Judge Phelan.
Stonechild said that it remains to be seen whether the government will negotiate real restitution for “Millennium Scoop” plaintiffs.
“Will this message be received? One of the things we learn as foster kids is never to get your hopes up,” she said. “When faced with a choice between healing and fighting Indigenous kids in court, it seems clear which path the Canadian government has chosen.”
Despite this, Stonechild finds strength in knowing that she has already won a personal battle, outside the court halls and within herself as a person.
“I was one of those children. I was deprived of access to my culture, language and rights as an Indigenous person. Now, I have acknowledged [my childhood] for what it was. I have taken the steps to heal and to take back what the government had stolen from me – my culture and identity as an Indigenous woman.”