It’s not so easy to come home

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At the band office, the fax machine trilled like a red-winged blackbird calling out the names of lost children. The incoming sheets passed hand to hand—anyone know who this is? 

Since the 1980s, there had been a rule in place: any child welfare agency in Ontario that opened an investigation involving an Indigenous child had an obligation to contact the child’s nation. But when the names reached the Chippewas of Georgina Island—Waaseyaagmiing, the place where the water shines—there was often no one left who recognized them. 

In the early 2000s, when a fax rolled in notifying the band representative, Shannon Crate, that a boy named Devon Freeman had come to the attention of a children’s aid society, she ran the surname by her mother, an elder in the community. Crate’s mother remembered Devon’s grandmother, Pam, who had left the island decades before. Crate made contact with the family, now living in Hamilton. A few years later, when he was just six years old, Devon’s mother, Jaime Lynn, died. Pam told Crate she wanted to adopt him along with his two sisters, and Crate signed off on the child welfare agency's transfer of Devon to his grandmother.

As she tells this story, Crate leans back in a big leather chair and smooths her ceremonial ribbon skirt. Twenty-four people are gathered in a circle around the room’s central buffalo hide, representing Indigenous nations and organizations from across the country. They’re here at the Banff Centre for the Arts and Creativity, in Stoney Nakoda territory, to learn how their communities can take back jurisdiction over child welfare for their members. 

About a decade after Devon went to live with Pam, Crate says Waaseyaagmiing heard from the child welfare agency again. Now a teenager, Devon had complex needs. The agency wanted to make him a Crown ward so that he would continue to be eligible for state-funded psychiatric supports past the age of 16. Crate was reluctant, but when the agency asked if there was a viable option for Devon on the island, she knew there wasn’t. The majority of residents didn’t even have access to clean water, and there was no school that went beyond the fifth grade. The agency worker said there was a group home in Hamilton that had all kinds of sports, art, and mental health services. Crate consulted with Pam, and they decided Crown wardship was worth it if it would get Devon what he needed. But call me, Crate told the agency worker. Call me if he doesn’t like it there. Let me know how it’s going.

In the spring of 2018, a piece of mail came to the band office addressed to Crate. It was Devon Freeman’s death certificate.

It was such a cold winter, Pam kept saying, when Crate got up the courage to phone her. That fall, the family had gone to the cemetery where Jamie Lynn was buried, and Devon had released a balloon to mark the 10-year anniversary of her death. Just a few days later, he went missing. Over the past few years, Devon had been placed in two different facilities and had run away 38 times. He always eventually returned. But this time, when Pam was told he was missing, he had been gone for weeks.

Over the ensuing months, Crate tells her listeners, Pam combed the streets by herself. Fall turned into winter, and Devon was still nowhere to be found. Spring arrived, and one day, some kids at Devon’s last group home were playing ball hockey in the yard of the facility. One of them chased an errant ball into a wooded area behind the building. There, about 35 metres from the group home, the child found Devon’s body. He had hanged himself from a tree. 

“I felt like I had failed this child, and failed this grandmother,” Crate says.

Over the years, she’s shared Devon's story many times. Today, inside the circle, near the iridescent shell filled with burning sweetgrass, she has placed talismans: Devon’s skateboard and a quilt she stitched from fabric-printed photos of him from his babyhood to the year he died. Why had no one called her? Why had no one at the group home or the child welfare agency told her that Devon was unhappy, that he was running away? The agency told her they had conducted their own internal investigation and found nothing wrong.

“I said, ‘A kid was in a tree for seven months,’” Crate tells the circle. “How could it be that no one had done anything wrong?”

*

In 2019, the federal government passed a piece of child welfare legislation called An Act respecting First Nations, Inuit and Métis children, youth and families, colloquially referred to as Bill C-92. It created a pathway for Indigenous groups to enact their own laws that supersede provincial laws, as well as to establish their own agencies and dispute-resolution mechanisms to keep their children out of the reach of provincial agencies and colonial family courts. 

“I cannot tell you what it’s like,” Eva Coles says to the Banff Centre participants, “to have the ability to go into a courtroom and say, ‘Judge, you have no jurisdiction over this child.’ You should have seen that first judge’s jaw drop.” 

Now a consultant, Coles has headed up numerous child welfare agencies and was most recently the chief executive officer of Cowessess First Nation’s Chief Red Bear Children’s Lodge in Saskatchewan, the first self-governing child welfare organization to operate under the act. She has a measured way of speaking, and her presentation judiciously balances triumph in this victory with a sobering account of the challenges awaiting nations at the beginning of this process.

Law-making is a long road: at the time of writing, 123 of Canada’s 630 First Nations communities have alerted the federal government of their intention to seek jurisdiction, and just 19 new law codes have come into force. Everyone wants kids to come home, but for small communities with limited resources, it’s not obvious what this should look like in practice. 

“Once you sign the agreement, there’s no handing the kids back,” Coles says. “The province will have relinquished responsibility. “You’re on your own.”

Krista Winsor, the health and wellness director for her small Yukon community of Carcross/Tagish First Nation, is here hoping to learn how asserting jurisdiction could keep kids from being sent out of her community in the first place. When Yukon social workers apprehend children from Carcross, they often take them into foster care in Whitehorse. 

“They end up in a group home, and we never see them again,” she tells the group.

Everyone nods. They know what that’s like. 

Carcross has just one worker who offers preventative services, like nutrition and parenting classes. But the plan is to take back jurisdiction for the First Nation, empowering 10 to 40 employees to handle all aspects of care services for families and assume power from the province to remove children from their homes in urgent cases. Rather than sending children to the city, Winsor hopes to create a group home in the village, where parents can easily visit. It’s a big dream: at present, Carcross doesn’t even have a high school. 

“We’re going to be history makers,” she says.

Some regions have specialized service agencies run by Indigenous directors that serve Indigenous children. But until the passage of C-92, all children’s aid societies operated under provincial or territorial law. In areas where an Indigenous agency exists, mainstream agencies are obligated to transfer any Indigenous children who come to their attention.

Some agencies, like Dnaagdawenmag Binnoojiiyag Child & Family Services, which covers most of central Ontario, serve families from dozens of different nations. Its director, Amber Crowe, a member of the Mississaugas of Rice Lake, Alderville First Nation, is also presenting at Banff. She tells the group about things her organization does differently from mainstream agencies: they employ cultural resource advisers, elders, circle facilitators, and family finders who conduct genealogical research to exhaust all possibilities for placing children with extended family. 

Crowe’s workers are currently bound by provincial laws, but as nations enact their own laws, her agency will be bound by those, too. The provincial and Indigenous codes will apply concurrently, but where they conflict, Indigenous laws should take precedence over provincial legislation. 

C-92 also establishes minimum standards of care that will apply nationally and mandates that Indigenous codes must meet or exceed these standards. Some nations will enact laws without the capacity to deliver services to members living far from the reserve. In these cases, distant agencies will need to apply the laws of each nation. If a family that’s a part of the Sturgeon Lake Cree Nation in Alberta moves to Kingston, Ontario, their nation’s laws would travel with them. Should Crowe’s workers come to serve that family, they would be responsible for consulting Sturgeon Lake’s Namês Sâkahikan Sitoskatowin, which was partially enacted in May of 2025. 

As laws proliferate, workers across the country will need to familiarize themselves with dozens of Indigenous codes. They also need to be prepared for codes to conflict, as children whose parents come from different Indigenous nations could be subject to multiple sets of laws or to competing claims on their affiliation. 

Most of the work, Crowe tells the participants at Banff, isn’t placing children in foster care; it’s supporting families to stay together. She’s wearing a T-shirt with a heart on it. The difference between Indigenous agencies and mainstream ones, she often reminds her workers, is love.

For nations considering starting their own agencies under their own laws, Crowe advises that the first thing they need to know is exactly how many children’s files they would transfer from provincial agencies to their own, as even 20 more kids than expected will make a tremendous difference to their budgets. 

Intergenerational trauma and systemic inequities lead to comparatively poor health outcomes for Indigenous children, meaning that special—and often more costly—support is required. Burnout among Indigenous social workers is also high, as they’re often coming from the same trauma as their clients. 

Crowe, who practiced law for seven years before moving to her current position, warns that nations asserting their own jurisdiction will also be assuming liability. 

“Eventually, you will be sued,” she tells the group. 

It was a change in jurisdiction, Crate reminds her audience, that started the Sixties Scoop. In 1951, the federal government decided that provincial child welfare laws could be applied on reserves, which were otherwise under federal law. Suddenly, social workers were arriving to take children away. Families that had already been ripped apart by the residential school system lost another generation of their children; then another, and another. 

Today, more Indigenous children are separated from their families by the state than at the height of residential schools. If the movement for the return of Indigenous territory occupied by the Canadian state is known as “land back,” the movement for the return of citizens and the power to determine their rights and responsibilities can be thought of similarly: law back.

*

One way to understand Canadian history is as a centuries-long jurisdictional dispute. As Europeans asserted control over the continent, they ignored or sometimes actively suppressed the existing rule of law. Among coastal peoples like the Gitxsan in what is now British Columbia, the feast or potlatch regulated what we might call criminal law (fines and restitution for wrongs committed, the reinstatement of people who had transgressed) as well as civil law (marriage and divorce). 

From 1885 to 1951, the federal government criminalized participation in potlatches. Over five days ending on Christmas Day, 1921, at least 300 people attended a feast held in a Kwakwa̱ka̱’wakw village. When news of the event got out, the state charged 58 attendees; 26 of them went to prison. (In exchange for reduced sentences and fewer prosecutions, the Department of Indian Affairs also demanded the “voluntary” surrender of hundreds of masks and ceremonial objects, which were subsequently sold to private collectors and museums.) 

In the same period, residential schools disrupted the transmission of language and destroyed the cultural continuity that allows legal practices to be passed down. To prevent Indigenous communities from pursuing claims against the government in colonial courts, the Indian Act outlawed gatherings of any kind. 

In a 2016 McGill Law Journal article, Val Napoleon, a Saulteaux legal scholar and director of the Indigenous Law Research Unit (ILRU) at the University of Victoria, and Hadley Friedland, former ILRU director, wrote that it’s not enough to argue for the simple recognition of Indigenous laws, which have been damaged, garbled, or forgotten. 

“Today’s work,” they said, “is about recovering and then taking up an interrupted, intergenerational conversation.”

To this end, Napoleon and Friedland, who is now a director of the Wahkohtowin Law and Governance Lodge at the University of Alberta, began in the 2000s to develop a method of extracting Indigenous legal principles from precedent: traditional stories. They adapted the established law school practice of case briefing, in which the reader anatomizes existing legal decisions to separate out the constitutive elements: the problem, the facts, the decision, and the ratio, or reasons. 

Take, for example, the story of Beaver and Porcupine, from the Shuswap Nation. The two animals lived together in relative harmony, but Porcupine was always eating Beaver’s food. Beaver told Porcupine to knock it off and tried sitting at a distance during mealtimes, but Porcupine kept lumbering over and helping himself. One day, Beaver told Porcupine that the two of them would move camp to the mountains, where there was plenty to eat. When they had set up camp, Beaver told Porcupine that he was going hunting. When Beaver had gotten far enough away, he turned around and transformed Porcupine into “a common porcupine” who lives in the mountains. Beaver established himself down in lake country, where there were comfortable swamps. And this is why, the story concludes, porcupines live in the mountains, and beavers live by the lake.

The story serves as a foundational text for traditional Indigenous legal traditions, harmony, and natural governance. The 2023 casebook of Secwépemc and K̓wséltkten laws created by the Shuswap Nation Tribal Council, the Secwepemc Sna7a Elders Council, and the ILRU, breaks the story down to its legal elements. 

Problem: “What is the proper response when a relative is threatening the survival of others or is acting in a way that makes it impossible for other people around them to live?” 

Decision: to remove Porcupine from the community. 

Reasons: Beaver’s actions show that a proportional response is required—only when Porcupine fails to respond positively to Beaver’s first attempt to address the problem does Beaver resort to more drastic measures. 

Furthermore, Beaver doesn’t abandon Porcupine in a dangerous situation; he seeks out a place where Porcupine will have plenty of food. Even when someone is a threat to the community, its members are obligated to look after that person’s well-being.

Some communities that have enacted and published new child welfare laws through C-92 have threaded their ancestral stories between the whereases of legal jargon. The laws will only feel legitimate if they seem to be articulating existing norms, Napoleon and Friedland write. Marilyn Charleyboy, who was, until recently, the director of child and family services in her Tŝilhqot’in community, says her community’s first pass at writing their own legislation came out feeling foreign. 

“We were just duplicating government legislation in different words,” she says. 

“They ripped the whole thing up and started over. I would ask myself, ‘What would my ancestors do? How would my ancestors deal with this?’”

The Tŝilhqot’in ʔEsqax & Desniqi Dechen Ts’edilhtan (Tŝilhqot’in Children and Family Law) came into force in 2025. It begins with their creation story, the tale of Lhin Desch’osh and the woman who gave birth to puppies. Charleyboy, who grew up surrounded by her grandparents, aunts, uncles, and cousins, couldn’t even remember when she first heard the story.

“We hear bits and pieces of it throughout our lifetime, to teach or redirect or guide us.”

In one of the tale’s early incidents, the community abandons the woman and her puppies to starve, and the woman teaches her dog-sons to hunt. When the people who abandoned the family are themselves near starvation, the puppies insist on feeding them. The legal principle: avoid retaliation, and remember your responsibility to lift up the weakest members of the community. 

The Tŝilhqot’in law has a section laying out not only the rights of children but their responsibilities: to respect their parents, teachers, siblings, and themselves; to respect nature; to follow their parents’ rules; to follow the rules of the Tŝilhqot’in nation; to prioritize learning the language and ways of their ancestors. For Charleyboy, shouldering obligations is what brings a person in line with Tŝilhqot’in law.

“I am now the matriarch of my family,” she says, “and it comes with all kinds of responsibility.”

A person who is denied the power to fulfill their duties—as are both children and adults when the webs of connection between them are snipped—loses their sense of meaning, their specific place in creation. 

*

Back at the Banff Centre, Winsor and Crowe are sitting together in the dining hall during a break between sessions, discussing the nitty-gritty of the child welfare services they run. 

“I have it so that every time there’s conflict between the parents and a case worker, it comes across my desk,” Winsor says. 

“Me too,” Crowe agrees. 

She’s seen how frustrated workers can get when parents, still grappling with their own traumatic life histories, can’t seem to follow the plans laid out for them. 

Some nations, she notes, want to take back prevention services—cultural plans, baby baskets, language incubation—but are reluctant to take on apprehensions. Indigenous child welfare agencies are preferable to mainstream ones, but they too can become magnets for hostility. 

Just weeks before the gathering in Banff, conflict between Peguis First Nation’s child and family services agency and their chief and council made headlines in Manitoba. Chief Stanley Bird called a press conference to demand that the provincial and federal governments rip up the coordination agreement they had signed with the newly created Peguis child welfare service agency, warning that the agency had no appropriate oversight or checks. Chief Bird, who was not yet in office when the law was enacted, alleged that he had asked the agency to provide him with its governance documents and had been told it was none of his business. 

Another painful, ongoing dispute is the clash between nations over the funding deals Canada has offered. In October of 2024, about two-thirds of the Assembly of First Nations voted to reject a plan that would have seen the federal government invest $47.8 billion to support Indigenous communities in child welfare reform. 

“It’s in the fine print where all of that falls apart,” Cindy Blackstock says. “They have a lot of discretion over how that money is used on the ground.” 

A member of the Gitanmaax First Nation and the executive director of the First Nations Child & Family Caring Society, Blackstock is a longstanding and influential activist for the rights of Indigenous children. In 2007, her organization brought a class action lawsuit before the Canadian Human Rights Tribunal, charging that Canada had racially discriminated against children on reserves by underfunding services. In 2016, the tribunal found that Canada was indeed guilty of discrimination, and in 2023, the Federal Court approved a settlement of more than $ 23.34 billion to be paid to individuals harmed by the child welfare system. 

Blackstock’s fear is that the transfer of child welfare to Indigenous jurisdiction simply allows the government to wash its hands of a difficult portfolio, in a move that’s less community empowerment than offloading. Today’s high rate of removal of Indigenous children from their homes—17 times higher than for non–First Nations kids—is rooted in the poverty, lack of housing, addiction, and domestic violence that result from Canada’s multigenerational war on Indigenous families. 

“You can have the very best law,” she says. But “if you don’t deal with those fires, it’s not going to make much of a difference for kids.” 

It’s easy to make political statements about the importance of bringing kids home, Crate says. What’s harder is securing funding, finding and training the personnel, designing the programs, and building the family and community relationships that will make it possible for children, teenagers, and young adults who do come home to their nations to stay there. 

Among other recommendations made by the jury after the inquest into Devon Freeman’s death is Devon’s Principle: a non-binding resolution to recognize the right of children in care to return to their home communities. But, Crate says, “If we have a welcoming ceremony and only do that once for them and then return them to their foster home, how is that going to make them feel?” 

*

At the end of the week, the Banff participants break into small groups to draft sample laws addressing issues such as liability, enforcement, and substantive equality. When Coles asks the substantive equality group if their law is ready to present, participant Jonathan Couchman jokes, “I just finished carving it into stone.” 

A tall, elegant man in his fifties, Couchman passed away in June. He was apprehended as a baby and adopted into a white family. He grew up in small-town Ontario, and no one ever let him forget he was different. In his late twenties, he reunited with his birth mother in Wahpeton Dakota Nation near Prince Albert, Saskatchewan. She died shortly after, but Couchman, who had learned he was a hereditary chief, continued to forge relationships with his birth relatives, becoming a knowledge keeper for his people. His grandfather gave him a chanunpa, a ceremonial pipe handed down in the family. When his grandfather lay dying, Couchman brought the pipe to him in the hospital, hoping it would heal him. You are the pipe, Couchman’s grandfather told him. 

In the Shuswap Nation’s casebook materials, there’s a story about Salmon Boy. The boy fell into a river and went to live among the salmon, but missed his people and swam upstream toward his home. His grandfather, taking freshly caught salmon out of the netting of his weir, noticed that one fish had the eyes of a human boy. He rolled the salmon in a blanket and hung it from a tree. The grandfather peeked inside the blanket each day to find the fish growing more and more human until, on the fourth day, his grandson leapt out. “Tell no one of my return,” the boy said. “Catch and cure all the fish you can, while I go and hunt. In two months’ time, I shall return, and we shall give a feast to the people.” 

It’s not so easy to come home. The boy needs time and his grandfather’s help to adjust. It’s also not easy for the community, to whom the boy returns as a stranger. Ultimately, the boy rewards his grandfather’s efforts by demonstrating that he understands his people’s law. That’s how they know he’s ready to be one of them again. 
 

This article was supported by the Law Commission of Canada–Canadian Bar Association Journalism Fellowship for 2025. A version of it originally appeared in The Walrus.