Re-peopling in a settler-colonial context: the intersection of Indigenous laws of adoption with Canadian immigration law

Introduction

In an earlier article, I argued that scholars and advocates focusing on immigrant and migrant rights should not be focused solely on recognition by the state (Bhatia, 2013). While rights-based recognition by the state is necessary to secure status under immigration law, it is not sufficient when this state is also a settler-colonial one. As encapsulated in the debate between leading Indigenous, critical race, and no borders scholars, there are other, non-state authorities that should be brought to the forefront (Lawrence & Dua, 2005; Sharma & Wright, 2008/2009). More specifically, Indigenous laws, legal traditions, and treaty relations should serve as sources of authority in immigration law, policy, and discourse going forward. This intervention coincides with earlier calls for Canadian citizens to recognize that they, too, are treaty people and have been the main beneficiaries of treaties to date (e.g. Sákéj & Henderson, 2002; Saskatchewan Office of the Treaty Commissioner [OTC], n.d.). This call to acknowledge that we are all treaty people has since migrated to the context of naturalization (through the Truth and Reconciliation Canada’s [TRC] call for amending the citizenship oath TRC, 2015b), permanent residents, and even refugees (see, for example, CCR [Canadian Council for Refugees] Sinclair Resolution).

However, these interventions also led me to ask whether acknowledgment of the treaty right to be here would serve as merely metaphorical decolonization (Tuck & Yang, 2012). Instead, I argued that it might be possible to actually decolonize the treaty right to be here if it led to Indigenous self-determination including fulsome powers to incorporate others, up to and including those with precarious or no immigration status in Canada. This ability would re-center Indigenous legal systems for making and maintaining relations and thus help to decolonize law and status determination from the current Indian Act system (Palmater, 2011; Lawrence, 2004). It would also give more than metaphorical meaning to the phrase “we are all treaty people” by making room for those who are not authorized by the Canadian state to enter or stay.

This article addresses the intersection of Indigenous legal systems for making and maintaining relations with Canada’s control over both Canadian and Indigenous legal status. The specific intersection I focus on here has to do with Indigenous adoption as an order of citizenship that both resists and is constrained by Canadian sovereignty. This state sovereignty is manifest through formal regulation over immigration and Indian Act status. In its approach to this regulation, the state remains very much fearful of increased Indigenous control as much as it refuses to understand the full relational scope of Indigenous legal systems.

Adoption, domestication, and decolonization

Imperial and then Canadian authorities have long pursued a path of domestication when it comes to Indigenous laws, lands, societies, and treaties (e.g. Borrows, 2001; Schulte-Tenckhoff, 1998). While Canada retains the full spectrum of re-peopling itself (i.e. procreation, marriage, adoption, citizenship, and immigration), Indigenous peoples’ self-determination in these areas has been constrained by Canada’s doctrines of domestication (Borrows, 2001). For instance, the creation of the Indian Act, the invention of Indian Act status, and the loss of that status through various mechanisms have all worked against Indigenous self-determination over re-peopling their societies (e.g. marrying out, parenting out, mandatory and voluntary enfranchisement, and the restriction of adoptive status) (Napoleon, 2001). These statutes and mechanisms have been resisted since before, and all throughout, their existence in Canada with various after-the-fact reforms coming through political campaigns, domestic and international advocacy and litigation, and other means (Eberts, 2014). Currently, Indigenous peoples can transmit Indian Act status through birth and adoption, though all of these methods are constrained in different ways (e.g. marrying out does not transmit Indian Act status; parenting out results in a form of Indian Act status with lesser transmission rights; and Indian Act status can only be transmitted through the legal or customary adoption of minors [not adults]).

As with the other examples, the case of adoption is also problematic because the current versions permitted by Canada’s Indian Act and Canadian common law do not match the versions of adoption articulated under Indigenous legal systems. The restriction to adoption of minors only in the Indian Act and common law is an important one that does not cohere with Indigenous conceptions of adoption (Poitras & Zlotkin, 2013). While there are heightened powers for Indigenous bands to control membership separate and apart from the Indian Act, most bands default to the Indian Act rules (Palmater, 2011).

Non-metaphorical decolonization requires the resurgence of Indigenous control over immigration, both in relation to Canada’s settler-colonial status and due to its place as a state that is transnational, immigrant-receiving, and migrant-exploiting/producing (Bakan & Stasiulis, 1997; Bhatia, 2012). By decolonization, I mean the repatriation and rematriation of (a) Indigenous lands, waters, and life (Tuck & Yang, 2012; Koleszar-Green, 2016) and (b) Indigenous relations to the land, waters, and life, which are the sources of Indigenous laws, legal systems, and treaty relations (Borrows, 2010). This resurgence takes place at multiple levels and scales, from Indigenous families, to First Nation bands, to Indigenous clans, Nations and Confederacies, as well as treaty federalism with the Canadian state (Lee, 2015; Six Nations and Three Fires Confederacies; Sakej & Henderson, 2002). Such resurgence in the context of re-peopling powers would also move the state’s desire for incremental or no reform of Indian Act status away from Canadian criteria and toward self-determination pursuant to Indigenous nations’ own laws.

The rest of this article focuses on these questions through the lens of adoption taking place in a settler-colonial context simultaneously subject to Indigenous treaty relations and Canadian immigration controls.

Sandy Bay Ojibway First Nation and Sister Eligwe

As with Indian status and the Indian Act, the Constitution Act (1867) is also the source for federal powers over immigration status and “aliens.” Common law courts have famously noted that “no alien has any right to enter this country except by leave of the Crown . . . [and] he has no right whatever to remain” (Constitution Act, 1867, s. 91(25); Pentonville Prison at 747; Chiarelli at 733). The federal and provincial governments share jurisdiction over “agriculture and immigration,” but federal immigration laws take priority if they conflict (Constitution Act, 1867, s. 95; Knowles, 2007/2015, p. 70; Baglay & Nakache, 2014). The current Immigration and Refugee Protection Act (IRPA) has many objectives but requires that everyone be authorized to enter or stay in Canada except for citizens, registered Indians, and permanent residents (IRPA, s. 19(1)). ¹ Demographically, such immigration is necessary given Canada’s lower fertility rate and ongoing need to replace its population to provide new workers who will spend their taxable income. Nonetheless, Canada’s current 177-page immigration statute is a far cry from the 15-page Immigration Act of 1869. Open-door policies, emigrants’ rights, the active recruitment of settlers, and grants of free land for homesteading accompanied the latter act. Today’s IRPA is characterized by cataloguing exclusion and limiting the means of entry rather than facilitating mass immigration and displacement.

On paper, the migration story of Nkemhurunaya Juliana Eligwe is typical of the exclusion that characterizes much of contemporary Canadian immigration law. A Roman Catholic nun and Nigerian citizen, Sister Juliana was brought to Canada on a visitor visa to work without authorization as a live-in caregiver and domestic worker (Application for Judicial Review materials [AJR]). Her work was also allegedly performed without compensation (CBC News [Nun Living on Manitoba First Nation Reserve Faces Deportation, 2006]). This unauthorized work brought her to the attention of immigration authorities that then received her asylum claim, which was rejected at a tribunal along with her later application for judicial review at court (AJR, Results of Pre-Removal Risk Assessment [PRRA]). Now subject to deportation, Sister Juliana applied for a risk assessment to stay her removal from Canada. She also applied for an exceptional grant of permanent residence on humanitarian and compassionate (H&C) grounds. Both of these applications were also rejected. While the case history and movement between different formal and (un)authorized statuses are important, they do not tell the whole story. For instance, Sister Juliana abandoned her motion for a stay because on 26 April 2006, she was adopted into the Sandy Bay Ojibway First Nation (SBOFN). So, the SBOFN filed the motion in court under its own name.

Long before that happened, however, Sister Juliana had also been volunteering at the SBOFN in various capacities (CBC; Ritskes, 2015). It was on the basis of this care work that she was subsequently adopted into the Band’s membership following her negative immigration decisions (Sandy Bay Ojibway First Nation v. Canada, at para. 5). SBOFN Vice-Chief Denis McIvor filed a letter in support of Sister Juliana’s H&C application (AJR, Nortey Affidavit, Exhibit B at 30):

We are very grateful to have Sr. Juliana in our community. Sr. Juliana is here from time to time to give spiritual nourishment to our people and to our young ones. Since the nuns left our community years ago, Sr. Juliana’s performance has helped tremendously to fill the vacuum they left. In the church, Sr. Juliana leads the congregation in signing. Young couples go to her for spiritual talk to live as a good husband and wives. Teenagers flock to her seeking advice and clarifications on issues regarding their faith and practice. She was in our school for the staff and students when there was suicide and tragic deaths that left everybody in fear and devastation. On hearing about this, she volunteered her time and talents to talk and to be with them in their pain and grief. She is such a caring, compassionate person and has so much identified with our youth and our aboriginal community. How can we lose such a friend and spiritual counselor?

The PRRA officer reiterated this evidence of Sister Juliana’s establishment, noting “the compassion she demonstrated in supporting the youth of the Sandy Bay Ojibway First Nation when they were experiencing the emotional trauma of losing peers and loved ones to suicide” (AJR, Nortey Affidavit, Exhibit B at 31). Nonetheless, officer Fraser was not satisfied that there was sufficient evidence to establish that the hardships she would experience in applying for permanent residence from outside Canada would be unusual and undeserved or disproportionate. The officer accepted that Sister Juliana had shown good character, compassion, and the ability to make highly valued contributions in a self-sufficient manner (AJR, Nortey Affidavit, Exhibit B at 31). While acknowledging that she had established herself in Canada, officer Fraser attributed this degree of establishment to her delayed refugee claim and multiple applications to stay in the country (AJR, Nortey Affidavit, Exhibit B at 31).

In rejecting her application, Officer Fraser also quoted Justice Russell in the Davoudifar decision: “. . . the law of Canada does not say that it is possible to remain in Canada provided you are a deserving individual and a valued member of your community” (at para. 25, emphasis added). While the applicant in that decision had developed community ties and respect, these were not enough to keep her in the country. Officer Fraser found this decision to be on point:

There is no question that the Applicant is a valued member of her community and that she has managed to develop herself personally and professionally while in Canada; however, I have concluded that her case, when seen as a whole, presents insufficient humanitarian and compassionate grounds to warrant an exemption from requirements of the [Act]. (AJR, Nortey Affidavit, Exhibit B at 32)

As seen below, the inability and unwillingness of Canadian immigration law to recognize these relations of care between a potential immigrant and a First Nation does not match well with Indigenous laws of membership and belonging.

The SBOFN’s support for Sister Juliana is set out in a few documents showing the First Nation’s actions, rationale, and basis for adopting her. Described as an “adoption of special circumstances” in the Band Council Resolution (BCR), the Chief and Council “give notice of acceptance and approval of an adoption into the band membership of Sandy Bay Ojibway First Nation, whereas Chief and Council agree that the adoptee is Sister Juliana” (AJR, McIvor Affidavit, Exhibit A). The Band Council Meeting Minutes briefly note the following: “BCR#060105: support for band member being deported. Her hearing is May 2nd, therefore a special convened meeting for the adoption of EJN into Sandy Bay is presented. The leadership, on behalf of the community, ratifies this” (AJR, McIvor Affidavit, Exhibit B). This one short phrase encompasses the entire dispute over sovereignty and the attempt to use Indigenous adoption to support a band member who is being deported.

State sovereignty

Key points of contention in Justice Harrington’s reasons for dismissing the motion include Sister Juliana’s vocation, the exercise of immigration powers by First Nations, and her lack of Indian Act status. In oral representations, the SBOFN argued that Sister Juliana was entitled to be registered under the Indian Act because she was a member of a “band” (i.e. as a body of persons recognized by the Governor-in-Council for the purposes of the Indian Act) (1985 Indian Act, s. 6(1)(b)). The following excerpts from the short Federal Court decision are worth reading here:

The gist of the application is that following the decisions adverse to Sister Eligwe, on 26 June there was an acceptance of and approval of her adoption into the Band membership of the Sandy Bay Ojibway First Nation. [. . .]

The argument continues that the Band has the right to determine its own membership [. . .]

As to the serious issue, the proposition put forward if brought to its extreme is that each and every band (and there are more than 600) has the power to usurp the discretion of the Minister of Citizenship and Immigration by accepting non-residents as band members and thereby granting them permanent resident status.

[. . .] The argument was simply that Sister Eligwe was a member of the Sandy Bay Ojibway First Nation which had an aboriginal right to designate who are its members and that said members could not be forcibly required to leave the country. If in the course of time that proposition proves to be correct, Sister Eligwe may return.

[. . .] The purpose of the adoption appears to be to allow Sister Eligwe to remain in Canada. She is in fact indentured to the First Nation because the resolution also provides “. . . this Band Council Resolution . . . will remain in force until such time as the Sandy Bay Ojibway First Nation and Council rescind these instructions in writing [sic] consent of Chief & Council.” Today she is a member of the Band, tomorrow she may not! (Sandy Bay at paras. 5, 7, 11–13, emphasis added)

As noted above, the First Nation argued that it can determine its own membership, that Sister Juliana was a member by virtue of the BCR adopting her, and, due to her adoption, she had an Aboriginal right to remain in Canada and not be forcibly removed. In addition to other procedural grounds such as lack of standing (Cameron & Stark, 2013; Cowessess), Justice Harrington dismissed these particular arguments. He feared the potential extreme consequences of having more than 600 First Nations granting permanent resident status to foreign nationals. He also objected to Sister Juliana’s “indentured status” with the SBOFN that seemed to depend precariously on the whims of Chief and Council.

The prospect of more than 600 First Nations making immigration decisions only seems unreasonable if one adopts the perspective of the state. Section 33 of the UN Declaration on the Rights of Indigenous Peoples stipulates that Indigenous peoples have the “right to determine their own identity or membership in accordance with their customs and traditions” and that this “does not impair the right of Indigenous individuals to obtain citizenship of the States in which they live” (United Nations Declaration on the Rights of Indigenous Peoples [UNDRIP] art. 33; Imai & Buttery, 2018). The vast array of Indigenous laws, legal systems, and legal histories also normalize the idea that was Indigenous reality: inherent rights to determine their own membership. From the perspective of the Federal Court, however, this possibility cuts to the core of conventional state sovereignty. One definition of statehood requires a permanent population, a defined territory, a government, and the capacity to enter into international relations (Montevideo Convention). In statist theory, Indigenous control over immigration threatens all of these sovereign attributes. ³ In practice, Indigenous peoples pursued and still seek to maintain respectful treaty relations geared to mutual care and sharing of the land. As noted by Borrows (1999), the combination of Anishinaabe citizenship with the land with Aboriginal control of Canadian affairs could result in laws that extend citizenship in Aboriginal communities to non-Aboriginal people (p. 340). Ideally, Indigenous laws that extend “citizenship with the land” will actually serve to preserve Anishinaabe relations with the land while transforming our relations with one another.

The state’s fragility and fear on this topic is real, long-held, and recurrent. Justice Harrington’s 2006 “floodgates” fear of 600 First Nations is reminiscent of Pierre Trudeau’s remarks on introducing the infamous 1969 White Paper on Indian Policy: “It’s inconceivable, I think, that in a given society one section of the society have a treaty with the other section of the society” (Cumming & Mickenberg, 1972, Appendix). Trudeau’s desire for closure on the past echoes Duncan Campbell Scott’s official reply to the Haudenosaunee application for membership in the League of Nations in 1924. He feared that

recognition of the independent or sovereign status of Indians in treaties of cession, not used by the Dominion of Canada in the international law sense [would mean] the entire Dominion would be dotted with independent or quasi-independent Indian States allied with but not subject to the British Crown [. . .] such a condition would be untenable and inconceivable. (1923 Statement of Government of Canada in Bhatia, 2012b; Statement of Government of Canada, 1923)

Apart from fears of losing sovereignty, the fictitious unity of Canadian immigration law is hypocritical given the diffusion of the field and the increasing levels of precarity that characterize immigrant and migrant status (Baglay & Nakache, 2014; Bhatia, 2012a).

Canada currently has standing agreements to consult on immigration with a host of stakeholders, including provinces, territories, municipalities, employer associations, faith-based groups, the non-profit sector, linguistic minorities (like Franco-Ontarians), and other states on immigration matters. It seems that only Indigenous peoples are exempted from consultation on these important matters. In his recent study on The Strategic Constitution, law and policy scholar Irvin Studin comments on the national importance of population, both with respect to “incentivizing an increased national birth rate” and “the other essential constitutional power for increasing national population [. . .] immigration” (Studin, 2014, p. 96). In discussing the federal government’s power to set the “rate of net growth of the Canadian population resulting from immigration,” Studin notes that aggregate increases would likely need to correspond to the 1991 Canada-Quebec Accord on Immigration (Studin, 2014, pp. 96–97). Studin (2014) argues that the Accord’s dual objectives of preserving Quebec’s demographic weight, and integrating immigrants in a way that respects Quebec’s distinctive identity, serve as quasi-constitutional limits on the federal immigration power (p. 97). He goes on to note that “massively increased numbers of immigrants” would bring both “strategic and social benefit” to Canada, not the least in their ability to help “assert sovereignty . . . in underpopulated parts of Canada’s huge geography, such as the North, the Maritimes, and the Prairies” (Studin, 2014, p. 98). ⁴

Two separate factors are particularly telling for my analysis here. First, Quebec’s quasi-constitutional immigration status through an Accord negotiated under federal immigration legislation, at minimum, imply a place for other national, constitutional, and proto-constitutional actors within the determination of net growth, demographic weight, and integration to distinctive identity (Christie, 2000, in Arnot, 2007, p. 18; Bhatia, 2013). Second, proposals for viewing First Nations as third orders of government or more akin to entities along the lines of provincial confederation militate in favor of expanding the discussion around treaties and immigration (Royal Commission on Aboriginal Peoples [RCAP] Vol. 2; Barsh & Henderson, 1982). This discussion is especially warranted in light of the further provincialization and privatization of immigration in the wider Canadian context (Nakache & D’Aoust, 2012; Nakache & Dixon-Perera, 2015; Seidle, 2013). Most importantly, viewing Indigenous nations as self-determining nations means recognizing their inherent rights and power to reproduce their societies through birth and immigration.

The court’s concern with Sister Juliana’s “indentured” status with Sandy Bay is also ironic given that it orders her removal as soon as reasonably practical in the same paragraph. Canadian immigration law is riddled with this type of precarity and conditional status. It underpins the raison d’être of the immigration statute, which is the insistence that entry and stay remain authorized. The quick reversal of status and migrant fortunes was exactly Sister Juliana’s experience when she first entered on a visitor visa to pursue unauthorized work as a live-in caregiver. All foreign nationals entering Canada as temporary residents in so-called low-skill (low-wage) migrant worker programs are here on closed, time-limited work permits tying them to a single employer, job, and workplace. Depending on a host of factors usually out of their control, these migrant workers are potentially here today and then gone tomorrow (Goldring & Landolt; Straehle & Lenard). The IRPA has various procedures for stripping refugees and permanent residents of their status. These procedures become more or less relevant to people’s lives depending on the federal government of the day. Anyone applying for permanent residence within Canada who is sponsored by a family member, employer, or by virtue of their academic enrolment can also (in the worst cases) feel trapped, silenced, and akin to indentured (Choudry & Smith, 2016; Bakan & Stasiulis, 1997; Faraday, 2012; Macklin, 1992; Nakache & Dixon-Perera, 2015; Marsden, 2018).

The discussion above highlights intersecting state fears, including fears over the loss of some institutional control over immigration to Indigenous peoples as well as the loss of control over precarious status and exclusion under Canadian immigration law. How does Canada exorcize its fears of non-metaphorical Indigenous adoption? As seen above, it does so in part through the dual operation of its Indian and Immigration Acts. An equally important question is, why does Canada and its institutions and bureaucrats all seem to fear or resist Indigenous re-peopling in this context? Answering this question requires turning to the history and settler-colonial context that the state and its institutions seek to either erase or acknowledge at only surface levels. In addition, given the role of immigration in settlement and colonization, the weight of these matters warrants much more than mere consultation.

Treaties, care, and adoption as the laws of the land

Following the signing of Treaty 1, the SBOFN was forced to move north from Portage-la-Prairie to Sandy Bay in Marius, Manitoba (SBOFN; Bay, 2007 at 5, 12–13, 47). The treaties are subject to far-reaching contestation between domesticating interpretations versus Indigenous treaty principles. This contestation includes the forgetfulness of state and non-state authorities. The Stone Fort Treaty (Treaty 1) is no exception to colonial amnesia. The Stone Fort Treaty is the same treaty that then-Governor General Adrienne Clarkson (2007) helped to recognize when re-enacting treaty ceremonies as the Crown’s representative on the 130th anniversary of the treaty (p. 27). As part of her reflections on the theme of the lecture, Clarkson noted the following (Clarkson, 2007):

I recall again here that the treaty ends by stating that this bond “will hold as long as the sun shines, the rivers flow and the grass grows.” Those treaties were entered into in good faith by the native peoples. I would like us, who came later, who live those treaties, to honour them. I believe that we will not be able to continue to deal with difference in our country until we have honestly dealt with the original promise to our Aboriginal peoples. (p. 28)

Attempts to honor the treaties have yet to really contend with “difference in our country” in a way that respects the ongoing treaty relationships and continuing Indigenous legal authority. Honest dealing with original promises would translate to more than Indian Act rules or the ad hoc customary adoption of individuals. Instead, it must be recognized that a core feature of Indigenous legal systems is the ability to integrate other individuals and nations into existing webs of relations (Borrows, 2010; Grammond, 2009; Innes, 2012; Napoleon, 2001; Palmater, 2011).

“Adoption” has emerged throughout Indigenous and non-Indigenous relations, including prominently as societal adoption advanced in counter-domesticating Indigenous doctrines of treaty interpretation (Johnson, 2007). This perspective is important because Indigenous adoption of precarious settlers and states reiterates Indigenous authority and treaty permanence, including their status as immigrants’ bills of rights (Sákéj & Henderson, 2002).

In a far-ranging background report on customary adoption prepared for the RCAP, anthropologist Anna De Aguayo, reviewed the existing ethnographic literature on point. She defined adoption as a broad institution (beyond parentage) that involves change in, or the creation of, kinship ties, often termed by anthropologists as “transactions in kinship” in existing contexts of “generalized reciprocity” (De Aguayo, 1995, p. 4). De Aguayo (1995) noted at least five main types of customary adoption: (a) jural adoption, (b) fosterage, (c) mourning adoption, (d) economic adoption, and (e) political adoption (p. 1). The first three types could be separated into their own category as “transactions in parenthood,” with jural adoption characterized by (among other things) its intended permanence versus the temporariness of fosterage and mourning adoption (De Aguayo, 1995, pp. 7–8, 19–20). De Aguayo (1995) divided the final two types into their own categories: economic adoption as “transactions in siblingship” and political adoption as “transactions in membership” (p. 9). Both economic adoption and political adoption were usually the only two types of customary adoption to be practiced with respect to “strangers to the community” (De Aguayo, 1995, p. 9).

At first glance, both economic and political adoptions seem to hew to past and present Canadian powers over immigration law and policy (as well as foreign relations). However, this type of immigration power has been foreclosed for Indigenous peoples and nations for a host of reasons, most prominently through the Indian Act, immigration acts, and domesticated treaties emptied of their Indigenous law contents (Craft, 2013). Indeed, from her review, De Aguayo (1995) states the following:

Political and economic adoption seem to have suffered the greatest pressure to disappear by new government and religious institutions. These two institutions have been replaced by more bureaucratized social institutions, such as Band membership lists or citizenship and legal contracts. (p. 23)

While jural adoption and fosterage maintain, she concludes that “. . . the practices of political and economic adoption, due to pressure from government, missions and legal institutions have almost completely disappeared” (De Aguayo, 1995, p. 25, emphasis added; Stevenson, 2015).

Part of the backdrop and motivations to this “disappearance” are no doubt economic and financial with respect to the taking of lands and the reduction of Indian status. But these pecuniary interests do not exhaust all of the reasons behind efforts to “kill the Indian in the child,” get rid of the Indian problem once and for all, and extinguish all Indigenous interests in land (with Crown interpretations of historical treaties and modern comprehensive claims from the James Bay Agreement on down). Equally important are the demands and strictures of state sovereignty over status, mobility, and authority in the structure of settler colonialism (Mitchell, pp. 160–161; Wolfe, 2006). Apart from some of these reasons, I would still argue that the practices of economic and political adoption have not disappeared insofar as “we are all treaty people” who are here to stay with our corresponding treaty rights and responsibilities. As laws of adoption, the treaties point to the persistence of Indigenous laws and legal traditions as authorities in the context of making and maintaining relations with “strangers to the community” and for the benefit of Indigenous societal reproduction.

Indeed, both migration and adoption also emerge at the core of Anishinaabe law, society, prophecy, and traditions (Borrows, 2009). Following from the stories shared by Edward Benton-Banai (Bawdwaywidun), Grand Chief of the Three Fires Midewiwin Lodge (Ojibwe-Anishinabe of the Fish Clan from Wisconsin), the story of the Anishinaabe is one that centers a 500-year process of migration (Benton-Banai, 1979; Johnston, 2006, p. 4). Equally important to the place of migration and mobility is the role of adoption. As noted by the late Anishinaabe elder and authority, Basil Johnston, adoption is at the core of the Anishinaabeg peoples and their legal traditions (Stevenson, 2015). Indigenous studies scholar Damien Lee (Zoongde) notes as much in his examination of Anishinaabe adoption as an anti-colonial order of Indigenous citizenship and law. Referring to Basil Johnston’s telling of part of the Anishinaabeg creation story, he notes the time “where animal nations adopted the first humans when they were new and helpless . . . the weakest beings on Earth [who] needed help in order to survive” (Johnston 2003 [1976], pp. 13-16; Lee, 2015, pp. 92–93). Lee emphasizes that it is “the obligation to care for others that drives Anishinaabeg citizenship orders” (Lee, 2015, p. 93; see also Innes, 2013, pp. 33, 34, 43). This obligation arises from (Borrows 2011, p. 79; Lee, 2015, p. 94):

Kegedonce’s concept of dibenjigaazowin—or “he or she who owns, is responsible for, or controls their associations”—[which] twins with the concept of adoption to produce a citizenship order based on making relatives and citizens through the sharing of resources and responsibilities. Sharing in this way creates bonds and reciprocal relationships. In both, self-determination remains intact: choosing who to care for at the family level is the same type of self-determination needed in discerning citizenship at the national level, namely, a self-determination based on controlling our associations that includes all those who rightfully belong.

This story and system of vulnerability, adoption, sharing, responsibility, control, and care echoes other examples, including the inter-Indigenous One Dish Wampum Belt. It also reflects themes from the Haudenosaunee Welcoming and Two Row wampum belts dealing with the pledge to welcome and hold up newcomers so they would not fall down (see Koleszar-Green, 2016). Darlene Johnston (2006) recounts similar values through the creation story of the island of Michilimakinac by the animal ancestors and relations of the Anishinaabe (p. 3). These values are especially pertinent in the context of transnational migration, where a shared dilemma of landlessness is solved by cooperation for mutual sustenance (Johnston, 2006, p. 4).

Nonetheless, while Canadian courts have long shown willingness to recognize customary adoptions at the individual level to “persons within a society” (Zlotkin, 1984; Zlotkin, 2009, p. 363), Canada’s government and courts forbid the political and economic adoption of “strangers to the community” (De Aguayo, 1995, pp. 23, 25; Stevenson, 2015). Canada maintains its authority to decide what falls within internal Indigenous status determination (e.g. band membership) versus what is external and in Canada’s national interest for financial and other reasons (e.g. Indian Act status; immigration status). In this way, SBOFN could not adopt Sister Juliana as a band member in a way that would keep her in the country. Her adoption by the band did not confer Indian Act status, which is the only Indigenous status recognized as including a right to remain for the purposes of immigration law (IRPA, s. 19).

Although not radically incommensurate in function from the humanitarian and compassionate immigration factors that were assessed, a care-based vision of Indigenous adoption was rejected outright. Officer Fraser noted that Sister Juliana had, in fact, established herself in Canada on the basis of this care work. Nonetheless, Justice Harrington treated the spiritual assistance discussed in Sister Juliana’s H&C application with relatively short shrift. The court came to this conclusion notwithstanding that Vice-Chief McIvor noted her care for the child survivors of a youth suicide epidemic (Sandy Bay at paras. 14–16) that has been kept perpetual by the Canadian state and society.

The active forgetting of treaty obligations remains part of the wider set of tactics within the longer-running strategy of elimination in Canada (Wolfe, 2006). This strategy of elimination works in tandem with the simultaneous emphasis on peoples and lands in state sovereignty. Before, numbered treaties were negotiated and reduced to written versions that did not reflect the full context but provided land and permission for settlers. The settlers and successive governments then enacted legislation empowering them to unilaterally remove children from these communities (including Sandy Bay) and take them to residential schools (Truth and Reconciliation Canada [TRC], 2015a Vol. 1). Now, the SBOFN is prevented from choosing to maintain relations with a person who cared for the youth and community suffering from suicides and intergenerational trauma stemming from the effects of these same residential schools. In the same period, the First Nation was also forced to contest the Crown’s transfer of prime real estate in downtown Winnipeg to the private Canada Lands Company (which would then sell off the Treaty One lands without any duty to consult) (Canada v. Long Plain First Nation). This First Nation’s experience is a particularly clear example of the ongoing settler-colonial foreclosure of Indigenous futures through continued Canadian control over Indian lands, governments, and people (Barman, 2007). While the common law limits of customary adoption currently frustrate farther-reaching approaches, they are important to consider for what they “allow” as much as for what the state cannot yet imagine (Poitras & Zlotkin, 2013, p. 31). Equally pressing questions remain about whether a band council under the Indian Act is one of the appropriate sites for exercising Indigenous self-determination over immigration powers (as opposed to other scales of Indigenous governance).

Conclusion

Ultimately, the state-based exclusions that run contrary to Indigenous laws are not only limited to Canadian law but can also be replicated through particular tactics within larger Indigenous strategies of refusal. For example, the restriction and removal of non-band members from residing on Kahnawá:ke’s reserve under their membership laws seeks to refuse the limited recognition offered by the state (Simpson, 2014). While the passing and implementation of these membership laws does resist and refuse state domestication of Indigenous authority, they also create problems for those in relationships with community members apart from their formal band membership status (Horn-Miller). This dynamic of formal versus lived membership is inescapable for any sovereign, self-determining nation or community (state or Indigenous). However, it is particularly fraught for Indigenous peoples caught between either rights-based recognition or refusal that is divorced from Indigenous control over the lands and resources necessary to exercise self-determination in the full-blown sense. The hopeful alternative for communities in these situations could be the same as that proposed for Canada’s fears of greater Indigenous control over immigration: greater reliance on revitalized Indigenous laws and legal traditions. In this case, greater reliance could be placed on revitalizing Haudenosaunee laws based on principles of societal and individual adoption of both Indigenous and non-Indigenous people (De Aguayo, 1995; Koleszar-Green, 2016). In all cases, these Indigenous laws of making and maintaining relations did not include restrictions on the basis of blood quantum or Indian Act status. Indigenous laws of adoption were also not restricted on the basis of age (Poitras & Zlotkin, 2013, p. 31) or Canadian immigration status. While it is relatively easy to make this observation as an outsider, pursuing this path obviously remains very fraught for those in and around communities constrained by Canada’s general control over lands and resources and the particular scarcity of lands and resources in specific cases. As with Canada’s fears over Indigenous re-peopling that includes control over immigration, these questions remain for Indigenous peoples to determine and prioritize in the context of a state still bent on their extinguishment (see, for example, Horn-Miller; Pasternak, 2017; Diabo). Meanwhile, the introduction and maintenance of state borders and immigration controls will only increase in relevance for racialized migrants and Indigenous peoples alike in the years to come (Lewis v. Canada; DeSautel v. Canada).