Toronto Star

Tuesday, May 4, 1999

Supreme Court refuses to re-open bitter aboriginal custody case

By Tonda MacCharles
Toronto Star Ottawa Bureau

OTTAWA - The country's top court says it will not re-open a controversial aboriginal adoption custody case despite an outcry from aboriginal leaders.

The decision means that custody of a 4-year-old boy, who is half-native and half African-American, will remain with his white adoptive grandparents instead of his aboriginal grandfather, who now lives in Manitoba.

The boy, who can only be identified as Ishmael H., was turned over last month to his adoptive grandparents, Nancy and Duncan H. in Connecticut, after a lengthy court battle that reached the Supreme Court of Canada in February.

While the decision should end the legal war that's been waged over the boy in Canada, it m y not be the end of the dispute.

The boy's Ojibway grandfather, reached by telephone in Manitoba, vowed to fight for custody in the United States, saying the child's best interests have not been served in what he called a justice system biased against aboriginals.

``It's absolutely devastating for me, and for the little guy,'' said Hubert M. ``I don't see how they could do this, move a child out of his home after he's been there more than three years. It's gotta be biased. It's mind-boggling.''

His lawyer John Harvie said in an interview, ``a child's best interests can change'' and so ``it remains a live issue'' potentially for the Connecticut courts to decide.

``In the interests of the child, this litigation should stop,'' said lawyer Julius Grey, who represents the Connecticut couple. He said the case was never a classic case of native adoption by white ``strangers'' but by family members who vow to keep his aboriginal heritage alive.

The Connecticut couple raised Ishmael for the first eight months of his life. They had adopted his mother, who has a drinking problem, and her sister when they were little girls.

The mother sought out her biological roots, and later took the boy to British Columbia where her natural father, Hubert M., was then living.

That's when the legal tug-of-war began. Two months ago, the Supreme Court justices unanimously disagreed with a B.C. Court of Appeal decision granting custody to the aboriginal grandfather.

Yesterday, the court explained its earlier decision, saying the original trial judge gave ``careful consideration'' to the boy's aboriginal ancestry, ``together with all the other factors relevant to Ishmael's best interest.''

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