Part 3 Consequences of Removal Chapter 10 Children’s Experiences

The draft Declaration affirms that Indigenous peoples have the right to self-determination. ‘[I]t may be said without exaggeration that all Indigenous peoples, certainly those which have participated in the drafting of the declaration, consider this right fundamental’ (Burger and Hunt 1994 page 412). Other provisions in the draft Declaration apply this fundamental right to particular areas of activity. They affirm ‘the right of Indigenous people to control matters affecting them’ (Coulter 1995 page 128).

Article 4 provides,

Indigenous peopleshave theright to maintain and strengthen theirdistinctpolitical, economic, social and culturalcharacteristics, as well as their legal systems, while retaining their rights to participate fully, if they choose, in the political, economic, social andcultural life of the State.

Article 31 sets out the extent of self-governing powers of Indigenous peoples.

Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture,religion,education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means forfinancing these autonomousfunctions.

Articles 19, 20 and 23 recognise a right to autonomy or self-government and control over decisions affecting them, including a right to maintain and develop Indigenous decision-making institutions and a right to determine and develop social and economic programs affecting them and to administer those programs through Indigenous institutions.

In negotiating the draft ‘practically noIndigenous representatives have spoken of a right to secede from an existing country’ (Coulter 1995 page 131). According to the Aboriginal and Torres Strait Islander Social Justice Commissioner, in the Australian context ‘[a] threat to Australia’s territorial integrity is not a necessary concomitant of self-determination’ (Dodson 1993 page 52). Indeed, international law specifically rejects interference in the domestic affairs of nation states or in matters which interfere with the existing territorial integrity of nation states. ‘[A] people exercising their right to self-determination may choose from – and may even be confined to – a

range of possible outcomes other than “independence”’ (Nettheim1988 page 119).

Governments expressed concerns during the negotiations about the relationship between self-determination and secession. Canada asserted that Indigenous self-determination ‘could not be used to justify any action that would dismember or impair … the political unity of sovereign democratic states’ but it accepted a right to self-determination within those boundaries.

TheGovernment of Canada accepts a rightof self-determinationfor Indigenous peoples whichrespects thepolitical, constitutional and territorial integrity of democratic states. In that context, exercise of the right involvesnegotiationsbetween states and thevarious Indigenous peoples within thosestatesto determinethe politicalstatus ofthe Indigenous peoples involved, and the means ofpursuing theireconomic, social and cultural development (Canadian Government1996 page 2).

Australia played an important role in the development of the draft Declaration. Its comments on self-determination in 1995 echoed those of Canada in recognising the right.

[It means] Aboriginal controlover thedecision-making process as well as control over the ultimate decision about a wide range of matters including political status,and economic, social and culturaldevelopment.It means Aboriginal people having the resources and capacity to control the futureof theirown communities within the legal structure common to all Australians…

Indigenous peoples, like all other peoples in independent states withrepresentative government, donothave a rightof secession, although they do have a right of self-determination (quoted byIorns 1996onpage 15).

Australia sees the right of self-determination as an evolving right. It involves more than just the right of equal participation in national affairs but also includes ‘preservation of culture, distinct identity and language, together with a power to take decisions over their own affairs’. In practice ‘the extent of that right remains a matter of political debate, particularly where autonomy or self-government for our Indigenous people may be seen to conflict with the rights of others within the Australian community or with overall governmental responsibility to achieve particular outcomes’ (quoted byIorns 1996on page15).

Clearly, the implementation of self-determination is important for juvenile justice, child welfare, adoption and family law matters. It is the principle grounding a right for Indigenous people to exercise control over matters directly affecting their children, families and communities. The Indigenous perspective on self-determination provides for the development of controlover these areas of social life through processes which may involve some form of autonomy or self-government. Australia’s position internationally has certainly not precluded these developments. State governments too have formally supported a broad view of self-determination. For example, the Queensland Government told the Inquiry,

The essence of self-determination in this context [juvenile justice and childwelfare] is an understandingthat only Aboriginalpeople can find solutions to theproblems which confront them, and thatAboriginalpeople have theright to make decisions concerning theirownlives

and their own communities and theright to retain their culture and develop it (final submission page 18).

Implementing self-determination in Australia The Indigenous right to self-determinationhas been slowly accepted over the last 25 years. Although restricted interpretations of the right have applied in practice, nevertheless self-determination has been seen as critical in various State, Territory and Commonwealth laws and policies.

However, transfers of power are generally limited in scope and accompanied by resourcing of Indigenous organisations which is inadequate to allow them to fulfil their functions. Many Indigenous communitieshave demanded the right to exercise self-determination in the provision of services to their communities while many others already do so with limited resourcing and powers. No community has jurisdiction over matters so central to their survivalas child welfare and juvenile justice.

Self-determination was a key component in the development of the Commonwealth approach to land rights legislation during the 1970s and underpinned the development of specific legislation covering Indigenous councils and associations. The establishment of ATSIC in the late 1980s and the more recent establishment of the Torres Strait Regional Authority (TSRA) further recognised the importance of self-determination in Indigenous affairs.

Discussing greater autonomyfor the Torres Strait, the Chairperson of the TSRA, Gaetano Lui, stated, ‘the central force behind this plan [for the TSRA] is our strong commitment to empowering our people to determine their own affairs. It is about controlling our own destiny and putting power back in the hands of our people’. The Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, replied, ‘it is a view that fits well with the Government approach to Indigenous affairs’ (Herron 1996page 5).

States and Territories have also transferred some decision-making powers to Indigenous peoples. Hundreds of Indigenous corporations have been established across the country to provide governmental-type services to their communities. Aboriginal and Torres Strait Islander child care agencies are among these. In addition, Indigenous councils with similar powers to local governments have been established in the Northern Territory and Queensland. In South Australia Anangu Pitjantjatjaraku, an Aboriginal corporation established under the Pitjantjatjara Land Rights Act 1982 (SA), is recognised as a local governing body. Land rights legislation in some other jurisdictions have provided for the exercise of some governmental-type powers.

In WA legislation authorises the recognition of Aboriginal community councils for the purpose of making community by-laws (Aboriginal Communities Act 1979). Some 29 communities have by-law making powers, some of which relate to law and order. Recognition of community councils under the Act and approval of by-laws are at the discretion of the Minister.

In the NT Indigenous community councils exercise local government powers under the ‘community government’ provisions of the Local Government Act.

Aboriginal local governing bodies recognised for local government funding purposes have also been established under NT and Federal incorporation legislation.

Councils on Aboriginal land in the NorthernTerritory are severely limited in what they can do andhave tofollow the rules andregulationsof theNT government. The NT Government’s legislationforcommunity Government is a white-mans system and is indirect conflict with the rightsof Traditional LandOwners ...Hesaid thatwhat theNorthern Territory and Commonwealthgovernments weredoing isto ‘manage’ Aboriginal people but notgiving them real control.AboriginalCouncils are more accountable to the Northern Territory and CommonwealthGovernments than they are to theirown communities (Kumantjay Ross quoted by NTAboriginal Constitutional ConventionReport 1993on pages 19-20).

Some decision-making power was transferred to Indigenous communities in Queensland by the Community Services (Aborigines) Act 1984 and the Community Services (Torres Strait) Act 1984. Community councils are primarily responsible for local government services with some additional functions such as community police, community courts and management of natural resources. During the last few years the majority of councils have adopted model by-laws creating a range of offences relating to assault, property damageand alcohol-related conduct (Queensland Government final submission page56).

There are practical and legislative limitations on the power of Queensland community councils including in the administration of justice. Community police suffer from poor training, poor facilities and high turnover rates. ‘Community courts are only operating on a handful of communities at present. Their usefulness is restricted by current requirements that they operate strictly along the lines of a magistrates’ Court’ (Queensland Government final submission page 56). Although the by-laws passed by community councils apply to juveniles, State police typically charge juveniles under other legislation. At present ‘community police have no jurisdiction to enforce offences againstjuveniles and community courts have no jurisdiction to hear offences against juveniles’ (Queensland Government final submission page 61). There are currently no provisions to deal with child welfare matters.

The limitations of the legislative framework under which the community councils operate in Queensland was the focus of the Legislation Review Committee (1991). The Committee found that there was wide Indigenous support for communities exercising greater autonomy than was currently available and that the legislation does not provide a ‘culturally appropriate structure for government’ (page 1). The Committee recommended that legislation should permit Indigenous communities to develop constitutions to suit their own conditions. These constitutions could specify the type of government structure most suitable for the community and the powers the community would exercise. Communities could choose to undertake government functions for health, education and law (including the recognition of customary rights, laws and traditions and the administration of justice, police and corrections).

In 1996 the Queensland Government introduced the Alternative Governing Structures Program (AGSP) to assist communities develop decision-making structures and processes by providing funds for the development of community-based plans. The Office of Aboriginal and Torres Strait Islander Affairs assists communities in negotiating with the relevant body for their plans to be implemented (Office of

Aboriginal and Torres Strait Islander Affairs 1996a). One of the strengths of the AGSP is that it applies to all Aboriginal and Torres Strait Islander communities in Queensland, including urban and semi-urban communities, and is not limited to those operating under the Community Services Acts 1984 (Office of AboriginalandTorres Strait Islander Affairs 1996apages 13-14). The organisers of the NT’s Aboriginal Constitutional Convention prepared a document on Aboriginal self-governmentwhich outlined some of the definitional issues and areas of potential responsibility.

1.What is Aboriginal self-government?

A process of redrawingtheancestraldomain through the right of Aboriginal self-government. This is a fundamental human rightof Indigenous people.

The inherent rightofAboriginal people to govern themselves is notbeyond the capacity of theFederal Government to recogniseand demarcate. It is simply creating a fairer divisionof thepower and sovereignty…

4.What does Aboriginal self-governmentmean?

• Greater Aboriginal self-determination andautonomy;

• Owning thedesign ofdecision making structures that are appropriate to the local situation, needs, and culture;

• Control and authority over internal affairs;

• Settingownpriorities and determine policy, program design;

• Selectivelytaking on the delivery of services eg. education, childwelfare, social services,health,policingand justice, land and resource planning and environment protection (Reynolds 1996 pages 141and 143).

Australian governments have not fully considered the relationship between Indigenous self-determination and the federal distribution of powers. However, many Indigenous organisations have experience of local control and regional co-operation.

Aboriginal local governing bodies generallyface a larger struggleto achieve equitable conditions for their communities and consequently the need forregionalunity is increased. However becauseof the cultural valueplacedon local control, the regional unity is achieved without compromising the fundamental autonomy that traditional land owners haveovertheir traditional areas.

The model is a micro-scaleof federal-styledistributionof powersbetween levelsof authority.Aboriginal local governingbodies have considerableexperience in making such a model work (Pitjantjatjara CouncilInc 1994page 41).

Implementing self-determination in other countries A number of submissions to the Inquiry (ALSWA submission 127, SNAICC submission 309, Anglican Church Social Responsibilities Commission submission 525) and research commissioned by the Inquiry (Iorns 1996) drew attention to the development of Indigenous self-determination models in other countries. In these examples, self-determination for Indigenous peoples has involved the complete or partial transfer of jurisdiction for the administration of juvenile justice and child welfare. The devolution of self-government powers to Indigenous peoples in Canada has occurred in the absence of federal government recognition of an obligation at international law but rather in recognition of the desirability of the transfer in the interests of Indigenous survival and national well-being (Iorns1996 page 21).

United States The decisions of Chief Justice John Marshall during the first half of the nineteenth century recognised that Indian tribes have an inherent right of tribal sovereignty and are entitled to self-government. In 1832 in Worcester v Georgia the Supreme Court struck down a series of laws enacted by the State of Georgia which would have had the effect of nullifying the Cherokee Nation’s constitution and its customary law. It affirmed that, although no longer completely sovereign, Indian nations retained their inherent right to self-government. Since then Indian governments have been entitled to exercise legislative, executive and judicial powers, subject to the powers of the US Federal Government. Most Indian nations have some land on which to base their government structures and authorities (Iorns 1996 page 22).

Two developments of particular interest to this Inquiry are the Indian Child Welfare Act and tribal courts. Commonwealth legislation along the lines of the Indian Child Welfare Act 1978 has been recommended to the Inquiry in numerous submissions (see for example SNAICC submission 347, Anglican Social Responsibilities Commission submission 525 pages 9-11).

The Indian Child Welfare Act 1978 is a Federal Act passed by the US Congress in response to the American Policy Review Commission’s recommendations. The Commission was established by Congress in the mid-1970s to examine, among other matters, current law and practice as it affected Indian people. The Task Force’s Final Report outlined the need for Indian child welfare legislation.

The Task Force Report cites a frequently asked question: since both Indian and non-Indian systems act in thebest interests of the child,whatdifference does it make as to who makes decisions about Indian children.The answerto thequestionis then set out in the Report. The difference is that thesedecisions are inherently biasedby the cultural setting of thedecision maker … whendecisions are made by non-Indian authorities (quoted byThorneundatedon page 1).

The Task Force noted the discretionary nature of child welfare interventions and the cultural judgments explicitly and implicitly made by non-Indian welfare officers when intervening in Indian families (Thorne undated page 3).

In the hearings which preceded passage of the Indian Child Welfare Act, the Congressional Committee found that Indian children are the most vital resource for the continued existence of Indian Tribes and therefore must be protected. It also found that an alarmingly high proportion of Indian families were broken up by the often unwarranted removal of children by public and private agencies and that an

alarmingly high proportion of these children were placed in non-Indian homes and institutions. ‘States have failed to recognise the tribal, social, and cultural standards prevailing in Indian communities and families. The Act was passed to remedy these problems’ (Thorne undated page 7).

The Indian Child Welfare Act 1978 gives exclusive jurisdiction to tribal courts in child welfare proceedings about Indian children who live on or have their permanent home on a reservation. Congress can make an exception to this rule by giving jurisdiction to a State Court. State courts have joint jurisdiction with tribal courts over welfare matters which involve Indian children who do not have permanent residence on a reservation. State courts must transfer jurisdiction to tribal courts if this is requested by the parent, Indian custodian or Tribe unless one parent objects, the tribe has declined to handle the matter or the State court finds ‘good cause’ not to transfer the case (section 101).

If a State court has jurisdiction over a welfare matter pertaining to an Indian child the Indian Child Welfare Act sets out a number of safeguards for that child. The Indian custodian of the child and the child’s Tribe can intervene and participate at any point in the proceedings and all partieshave a right to examine all reports and documents filed with the court (section 102). Parties seeking orders have to demonstrate to the court that active efforts have been made to provide remedial services. The party seeking a care order has to notify the parent, Indian custodian and the child’s Tribe of the proceedings (section 102(d)). The Indian custodian or Indian parent has a right to court-appointed counsel (section 102(b)). Voluntary relinquishment must be in writing and a judge must be satisfied that the terms of the agreement are understood by the parent or Indian custodian. Voluntary consent to foster care arrangements can be withdrawn at any time (section 103(a) and (b)).

Section 105 incorporates an Indian Child Placement Principle. An emergency removal of a child is permitted where the child is in imminent physical danger (section 112). In these circumstances either the case must be referred expeditiously to the tribal court or the child must be returned home.

The most litigated and debated provisions of the Indian Child Welfare Act relate to the shared jurisdiction between State and tribal courts over Indian children who live off reservations. In Mississippi Band of Choctaw Indians v Holyfield (1989) both parents were Indians and residents of the reservation. The mother gave birth to twins in a town 200 miles from the reservation. The parents both signed a consent to adoption form and 31 days after the birth a Final Decree of Adoption was issued by the Chancellor of the Court of Harrison County. No reference was made to the children’s Indian status anywhere in the proceedings. The Tribe sought an order to nullify the adoption decree on the basis that under the Indian Child Welfare Act it had exclusive jurisdiction over the child. In a one page judgment the Supreme Court of Mississippi affirmed the adoption on the basis that the mother had intentionally given birth off the reserve and neither parent had lived on the reserve after the birth. On appeal the US Supreme Court found that the parents had been domiciled on the reservation at the date of birth and so the tribal court had had sole jurisdiction. The Supreme Court noted that, because three years had passed since the adoption, nullification of the adoption and separation of the twins from their adoptive parents would cause much pain. Nevertheless the Supreme Court declined to determine the matter holding instead that ‘we must defer to the experience, wisdom, and compassion of the tribal courts to fashion an appropriate remedy’. The case was sent to the tribal court for determination.

The Supreme Court commented,

Tribaljurisdictionunder s1911(a)wasnot meant tobedefeated by the actions of individual members of the tribe, for Congress was concernednot solely about the interestsof theIndian children and families, but also about the impacton the tribes themselves of the large numbers of Indian children adoptedby non-Indians ... In addition, it is clear that Congress’ concern over theplacement of Indianchildren innon-Indianhomes was based in part on evidence of the detrimental impact on thechildren themselvesofsuchplacements outside of their culture (page105 reproduced in The IndianChild WelfareHandbook undated).

The Supreme Court of Utah had encapsulated much of the debate in an earlier decision cited with approval by the US Supreme Court in Holyfield.

Thisrelationship between Indian tribes and Indian childrendomiciled on thereservationfinds no parallel inother ethnic cultures found in theUnited States. It is a relationship that many non-Indiansfinddifficult to understand and that non-Indiancourts are slow to recognise.It is precisely in recognition of this relationshiphowever, that the ICWAdesignates the tribal court as the exclusiveforum for the determinationof custody and adoption matters for reservation-domiciled Indianchildren, and thepreferred forum fornondomiciliary Indian children (Inre Adoption of Halloway 1986 pages 969-970).

Tribal courts were first established in 1883 as an adjunct to the process of assimilation to outlaw customary law and ‘civilise’ Indians. The tribal courts which operate today derive from the Indian Reorganisation Act 1934. Indian tribes were authorised to establish tribal constitutions and governments and to enact laws covering internal matters including law and order. The tribal courts could be established as part of a tribal constitution or as a part of a law and order code.1

Some 108 Indian tribes operate tribal courts, ranging from small tribes of 65 members and courts that deal with three cases annually to the Navajo nation of nearly 200,000 members and a judicial system that handles 40,000 cases annually. Not surprisingly the court systems vary dramatically ‘depending upon the population of the reservation they service, the demand for services, the funding available, the extent of jurisdiction possessed by the courts, and the philosophical orientation of the tribal governments’ (CanadianRoyalCommissionon Aboriginal Peoples 1996a page 191).