<strong>Written By:</strong> Ivy_Ross
<strong>Date:</strong> 2004-08-03 08:00:24
<a href="/article/194724979-justice-for-natives-common-practices-or-just-a-nice-idea">Article Link</a>


Some people can’t seem to understand why Native peoples have a general mistrust of the Canadian Judicial System. Most forget that this general mistrust is based on past inequities and negative experiences. Native peoples are the most over represented population today within Canadian Prisons and Penitentiaries. The native population in such places is most commonly up to 90%. That’s a lot of natives sitting in a cell block. Still, there are others who just can’t comprehend why the relationship between natives and the judicial system continues to be strained.

For those with no past education on First Nations judicial practices prior to European contact, here is a brief overview:
Unique to each culture, each nation, was a distinct method of law. This method of law is more commonly known as social control. These methods of social control reflected that nations’ customary values, practices and traditions. The Native systems of social control were responsible for providing parameters within three basic areas of community living: regulations concerning property, interpersonal dynamics, and intertribal relations.
Although First Nations had no harsh, damp, cold holding cells to house criminals, the perpetrator was made to understand the error of his ways by ALL the community/tribal members. The “punishment” was decided by the community as a whole and not by a jury of their peers. This form of administering “justice” is focused on primarily on sustaining the health of the community and its members, rather than the preoccupation with reformation or punishment. So, the basics were, if a crime was committed, atonement and community stability were of the vital importance or, in other words, the main priority. Criminal behavior was seen as a community responsibility.

Now, I could get on my “soap box” and bring up early judicial conflicts between natives and non-native laws but that might take awhile. I’d have to touch on the Métis rebellion that was headed by Louis Riel, the eight Cree Chiefs that were hanged for supporting that rebellion, the natives of the Pacific Coast and the Canadian Government with regards to the potlatch, or perhaps the Westland Indians’ belief that women are a vital part of making “governmental” decisions. Books have been written on such topics and to even try to address them here would be doing them a great injustice.

In the book, Bridging the Cultural Divide, produced by the Royal Commission on Aboriginal Peoples (1996), Native issues are explained in this manner:

From economic and social disempowerment to problems in the criminal justice
system, Aboriginal peoples’ issues are seemingly indivisible one crosses over
to another in an interconnected and almost continuos fashion. Alcoholism in
Aboriginal communities is connected to unemployment. Unemployment is
connected to the denial of hunting and trapping and gathering practices. The
loss of land and the impact of major development projects. Dispossession of
land is in turn connected to loss of cultural and spiritual identity and is a
manifestation of bureaucratic control over all aspects of life. This oppressive
web can be seen as some of the dis-empowerment of communities and individual Aboriginal Citizens.

Therefore, the Native experience with judicial and other social, economic, political, and spiritual issues are all intertwined, all interwoven. With the Indian Act, the Canadian Justice System has failed many Aboriginal peoples.

Now, here is where the justice system has been known to fail the Aboriginal population. Due to extreme poverty or just plain, old poverty, a gross number of Canada’s Native prison population is incarcerated for unpaid fines. Although, some are in there for Provincial offences that are predominantly related to alcohol offences, fewer natives have been granted parole and those who are Status Indians come into conflict with the judicial system (as opposed to Métis and other non status). Now here we have something I am sure you all have heard about at one point or another, the high incarceration rates are influenced by systemic problems, discrimination, a general lack of cultural awareness or sensitivity by the judicial system personnel, and basic cultural differences. The most basic difference being that the Native peoples place emphasis on healing and that cannot be stressed enough.

Based on the information, basic as it may be considering the topic, I have provided to you, the reader, the public, do you understand why there is animosity and suspicion towards the criminal justice system by First Nation Peoples and how it came to be so ingrained? I’m not saying that the changes (ie-Aboriginal Policing, Native Court Workers) that have been made are not sufficient enough to get natives on the “right” side of the criminal justice system. What I am saying is that, the general mistrust or distrust will remain as long as headlines stating “Edmonton is dangerous place to live for Native Women” or as long as we need campaigns that remind us that 500 native women are missing or murdered in Canada and nothing has been done or as long as convictions like Mr. Marshall’s 1971 conviction (he was only released sometime in the late 80\'s with no apology) remain in the spotlight, the mistrust will remain strong. What those headlines tell us, First Nation Peoples, is that systemic discrimination is a problem that has not been adequately addressed or will be remedied anytime soon.

So now you all know that many natives believe that the quality of justice obtained by Native peoples has been poor and is related to discrimination and irrelevance of current legislation and the judicial system to the native culture. In essence, the system has rejected Native peoples, and in turn, Native peoples have rejected the non-native justice system - at a great cost to themselves.

   

Good post, Ivy Ross. I like the traditional approach to social control that you outlined. It is a much more humane approach to dealing with outlaws.

The way that the Canadian governments, (federal and provincial ), have dealt with First Nations people is reprehensible. In fact, the way that all governments in the Western civilization have dealt with all people is reprehensible.

Keep speaking out, we need to hear what you have to say.

   

The concept of Natives justice by the People rather than by a bureaucracy certainly seems to make a whole lot of sense. This however assumes that People are fully engaged in their communities to make them work and can freely express themselves.

How would you do this? I understand that isolated criminal elements have been successful in taking advantage of the vacuum created when People are not engaging themselves. Of course bureaucracy will find justification on this. Common ground?

   

Previous comment was from gaulois.

   

Totally agree, the Canadian state for the most part has failed the true owners of this land. For Canada to be a just society, the Canadian government must find a way to address and correct the grievances the aboriginal peoples have. Yes, keep speaking up loudly, Ivy. We need to hear you!

---
Dave Ruston

   

"<em>I understand that isolated criminal elements have been successful in taking advantage of the vacuum created when People are not engaging themselves.</em>" <p>This would describe the early history of "societies" such as the Mafia in Sicily, and it certainly gets to the crux of the wholle justice problem, not only for the First Nations, but for our society as a whole. We have come to rely on authority, rather than concensus, so that we don't have to be bothered about "atonement and community stability". We leave that up to the "experts". Moreover, we have forced this notion on the First nations, because they were "barabarians" and needed "civilizing" (also, if it looked as though they were doing something that was successful, it simply HAD to be stamped out)</p> But formal justice is on the wane in our country, because it is NOT personal enough. Increasingly, some people are seeking advice and help from "advocacy groups" rather than "professionals". Yet others are going the gang route, especially the younger disenfranchized in this country. We as a society, have never thought that we might actually learn from others, and it will be our own undoing. Unfortunately, the "death throes" of our own failing system will continue to be dangerous to a great many people, before it either expires (worst case scenario), or rises like the proverbial Phoenix (best case).<p>---<br>RickW