Northwest Territories Supreme Court, Morrow J., 4 April 1975
The practice and legality of Indian custom adoption has long been recognized by the Court. This form of adoption is not to be denied to petitioners simply because one of them is a caucasian woman. Where the woman has married an Indian and has expressed in clear lan- guage the intent to become a full member of the Indian band, and has been accepted not only by the chief and Council of the band, but by the whole band, and where she is entitled to be registered as the wife of a person entitled to be registered as a member of the band pursuant to s. 6 of the Indian Act, R.S.C. 1970, c. I-6, she and her husband are entitled to adopt an Indian child by native custom adoption.[Re Adoption of Katie E7-1807 (1961), 32 D.L.R. (2d) 686, 38 W.W.R. 100; Re Tucktoo et al. and Kitchooalik et al. (1972), 27 D.L.R. (3d) 225, [1972] 3 W.W.R. 194; affd 28 D.L.R. (3d) 483, [1972] 5 W.W.R. 203; Re Beaulieu's Adoption Petition (1969), 3 D.L.R. (3d) 479, 67 W.W.R. 669, refd to]
APPLICATION for a declaratory order confirming a custom adoption.
Earl D. Johnson, for Government of Northwest Territories.
MORROW, J.:--The two petitioners herein purported to ad- opt Corrine Cordell Washie, a child of Treaty Indian parents, on June 30, 1974, by Indian custom adoption. While it has been the long-standing practice of this Court to grant declara- tory orders confirming custom adoptions on summary appli- cation, the facts in the present case were felt to require a more formal hearing. Accordingly both petitioners appeared before me today and testified as to their background and as to the circumstances of the adoption. Mr. Earl Johnson, soli- citor for the Social Development Department of the Terri- torial Government was invited to appear as well and his assistance was very helpful.
James Jason Wah-shee is a Treaty Indian whose parents were both Treaty Indians. He is presently president of the Indian brotherhood and just recently was elected to the Ter- ritorial Council by acclamation. Mr. Wah-shee described how custom adoptions are an integral part of the culture of his people, who constitute the Dogrib Indian Band located in and about Fort Rae, in the Northwest Territories. He agreed with and confirmed the testimony of his wife which will be examined in greater detail. One of Mr. Wah-shee's own
brothers came into the family group by custom adoption.
Caroline Diane Wah-shee is of the caucasian race and was married to James Jason Wah-shee at Fort Rae on August 9, 1969. Before she and her husband were married they both approached his parents and sought and obtained their bles- sing to the marriage. As she says, her intention to become a full member of the Indian Band was expressed in clear language at that time and has never wavered. The young couple then circulated among the groom's relatives and friends seeking acceptance as is and as has always been the custom and finally the marriage was accepted by Chief Bruneau and his Band Council. They were welcomed by the Chief and his Council and they all shook hands.
Father Amoreaux performed the marriage ceremony in the Dogrib language except for a few words from Mrs. Wah- shee in English. Following the marriage all participants took part in a dance which is apparently part of the custom and tradition among the Dogrib people.
Following the marriage, application was made to have Caroline Diane Wah-shee's name entered on the band list pursuant to s. 6 of the Indian Act, R.S.C. 1970, c. I-6. This application was accepted and the applicant was given a card No. 619 certifying that she "is an Indian within the meaning of the Indian Act". Mrs. Wah-shee has since been in receipt of treaty money and subject to the limitations as well as the benefits under that statute.
Following the marriage the petitioners have adopted one child of the Indian race which adoption was effected under the provisions of the Child Welfare Ordinance, 1961 (2nd Sess.) (N.W.T.), c. 3.
Mrs. Wah-shee who is presently employed by the Territor- ial Government as a community development officer has cer- tain reservations about adoptions under the legislation, par- ticularly in respect to native children feeling that such prac- tices as keeping the natural mother from knowing where her child has gone, and so on, creates problems. As she says the practice tends to erode the customs and traditions of the native people. She and her husband were determined, there- fore, to seek their second adoptive child by the "custom" method if the law permits.
I should observe that this petitioner outlined how, without the declaratory declaration presently sought, she and her husband were experiencing difficulty with acquiring a proper birth certificate, with mother's allowance cheques, medical benefits, and other matters where identification is required.
With this in mind, when Corrine Cordell Washie was born the petitioners in accordance with the custom of the Dogrib people arranged to adopt her at the time of birth. The child was born in the hospital at Yellowknife on June 26, 1974. The child had jaundice. The petitioner Caroline Diane Wah- shee helped care for and feed the child while it recuperated in the hospital following birth and then took delivery of the child. She and her husband have continued to care for the child as their's ever since.
The child is James Jason Wah-shee's niece. Her parents have acknowledged the custom adoption. From the point of view of the natural parents the reason for the adoption is their poverty and the fact that this child was their 10th.
Except for the female petitioner's racial origin the adoption would have gone through without special attention. The prac- tice and legality of such adoptions has long been recognized by this Court: Re Adoption of Katie E7-1807 (1961), 32 D.L.R. (2d) 686, 38 W.W.R. 100; Re Tucktoo et al. and Kitchooalik et al. (1972), 27 D.L.R. (3d) 225, [1972] 3 W.W.R. 194; affirmed 28 D.L.R. (3d) 483, [1972] 5 W.W.R. 203, and Re Beaulieu's Adoption Petition (1969), 3 D.L.R. (3d) 479, 67 W.W.R. 669.
Special reference should be made to Re Beaulieu's Adoption Petition as this decision relates to custom adoptions in and about the Fort Rae area and the chief and Council members who gave evidence as to the Custom practised by the Dogrib Indians were the same persons who gave their approval and blessing to the marriage of the petitioners.
The petitioner Caroline Diane Wah-shee was accepted by not only the chief and Council but by the whole of the Dogrib band, she has been accepted on the Band list as shown by the card referred to above, and she was in my opinion entitled to be registeled as such as the wife of a person entitled to be (and in fact registered) registered as a member of a band: s. 11 (f) . This in my opinion has had the legal effect of constituting her a full member of the Dogrib Indian Band with full status. Even without the provisions of the Indian Act I would have, on the evidence, found her to be a full member of the band with all that entails.
Accordingly I see no reason why she and her husband could not have by custom adopted the child Corrine. In the result there will be an order declaring, ordering and adjudging that the petitioners adopted the child in accordance with native custom on or about June 30, 1974, and that as requested the child shall retain the name of Sky Aurora Wah-shee.
Application granted.