Aboriginal Child Protection - Laws

Laws

In a democracy child protection is subject to the rule of law. Many countries have written laws governing the exercise of state power for child protection. Indigenous peoples had organized societies and customary laws. Indigenous peoples' customary laws are recognized and enforceable as part of the laws of post-colonial countries. In the U.S.A., "Customary law still appears in many of the decisions of American state and federal courts. Customary law, part and parcel of the English common law adopted and adapted by the Founders of the United States, recurs less often given that statutory and administrative law dominate the field. In contrast, the importance of customary law in American Indian tribal courts cannot be stated." In Canada, a court noted that "such rules, whether they result from custom, tradition, agreement, or some other decision making process, are 'laws' in the Dicey constitutional sense." Inevitably, political tensions over the exercise of self-determination by aboriginal peoples find expression in legal tensions between indigenous, customary laws and post-colonial statutes respecting child protection for aboriginal children. Indigenous legal principles that reflect a more holistic worldview, and so give relatively greater emphasis to spiritual, cultural and relational needs in addition to physical needs of the child, may add to the legal differences.