Time to get out of the way of Indigenous justice systems

Over the years, I have not really thought carefully or with an open mind about the history of the Indigenous communities in this country. I have not always appreciated that, at one time, their lives and customs were suddenly smothered, often extinguished and replaced by European settlers — oppressors, really. I have now been invited to think differently and park my presumptions. I am also quite aware that change is coming.

On the weekend of Jan. 19, 2019 in Winnipeg, the 11th Annual National Symposium on Re-inventing Criminal Justice took place. The topic this year focused on Indigenous people and the criminal justice system and an examination of “decolonization.”

I cannot begin to describe how shockingly raw, honest, emotional and moving the two-day experience was.

Before I went, I admit I was thinking, “enough already” to every ceremony being preceded by an acknowledgement of whose land we were on. I was questioning, perhaps tiring of the blockades on the streets, on the land and in the courts. I was feeling that our “benevolence” was not appreciated, that our governments were spending too much time apologizing and accommodating. I likely was thinking  “just get out of the way.”

After Winnipeg, I now see that it may be me that needs to get out of the way. I now believe Indigenous people should not just be accommodated in our criminal justice system, they need their own. It is not a matter of benevolence but of rights.

Our criminal justice system is European-based, designed to punish the offender, as opposed to examining the essence and the spirit of that person to see what is broken. We need to think differently.

Our hierarchical society, with elevated judges in structures separated from the land and the community,  is devoid of spirituality and healing.

Let me share two perspectives. In Winnipeg, one respected and renowned speaker recounted how the police promised— indeed threatened — his mother by saying, “We’ll be coming to get your boys.” They did, and the cycle of detention continued unabated for years.

On the other hand, a distinguished Indigenous leader told this story. Every weekend, one of his 10 siblings would take turns visiting their grandparents. Once on his weekend, there a knock on the door in the middle of the night by a young boy tearfully reporting that his father was beating his mother. The grandfather summoned an elder, the horses were hitched and they set off to the boy’s home. The assaults were obvious. The mother was separated and taken to the grandparent’s home by the grandmother. The men confronted the assailant and put him to bed promising to return in the morning.  They did so. He had been drunk and remembered nothing. Nevertheless, he was told that he could not, must not, assault his wife, the mother of his children. The victim was told, in a supporting way, that she must not put up with it. The women gathered and cooked. The men discussed, analyzed and educated. 

They all came together and a ceremonial meal took place. They agreed to reunite. The men warned the assaulter that they would visit, without warning, to ensure he had mended his broken ways. There was no recurrence. 

The message is so loud and so clear, but we refuse to see it, to hear it and to learn from it. Indigenous people want, are demanding and deserve their own justice system.

In Cape Breton, Indigenous leaders said to certain Judges, “if we build it, will you come?” 

A remarkable twist on how our system is usually constructed has led to an enormously creative, effective and meaningful embrace. The entire criminal justice infrastructure, all of it, came to the Indigenous community. They were not forced to leave their community, to travel to a “white man’s court.” This type of system is happening bit by bit in our country and in certain parts of the United States. Our federal government, however, slavishly adheres to the Criminal Code and its antiquated procedural provisions with prescribed punishments, such as mandatory minimum sentences, that ultimately impede restorative justice.

Words and promises are not translated into action and leadership, and the result is more blockades to progress, too often resulting in over-incarceration, mental illness and frustration.  

We continue to make so many unfair assumptions. The term “savages” is still in our vocabulary, with all the presumptive conclusions about homelessness, alcoholism and dysfunction, without even peeling one single layer of an Indigenous person’s essence.

In a remarkable observation, one Indigenous leader mentioned that, throughout his education, report cards of Indigenous children in public schools would often see notes of “slow” and “uncommunicative,” which then led, of course, to failures. Surely, silence does not connote ignorance. Many Indigenous children, indeed, Indigenous adults, are often silent in the white man’s world, including in educational institutions. Tellingly, this Indigenous lawyer told a story of pleading a case with a former classmate from law school in the courtroom. At the end of the case, the colleague said, “You know what, I never thought you could talk.”

We need to understand our history. Indigenous communities were not assimilated, educated or welcomed to this country and invited to pledge allegiance to the Crown, like the ever-growing population of immigrants. Moreover, history is rife with broken promises and a “get-out-of-the-way” mantra, from the railroads to the pipelines. 

Things are changing. The population of Indigenous communities is increasing. They are becoming more educated. Teachers, doctors, lawyers, accountants and business people are becoming more of the norm. Indeed, there are 10 Indigenous senators in Ottawa.

As I entered the conference for the last day’s panel, I literally bumped into a remarkable, wise Indigenous personality who was appearing on a panel that day. We apologized to each other and he then said, “Bill, you have just experienced your first Indian blockade.” That comment, tongue in cheek, led me to later realize that we both got past that blockade. We were heading in the same direction — he to teach, me to listen.