Changes in the Aboriginal
Justice System through Colonialism

Austin Jamieson
11153678
Native Studies 107
Ron Laliberte
November 20, 2013

Aboriginal justice system has gone through many changes throughout history. This has mostly been because of Colonialism. Its presence is highly noticed in the formation of cultures and their ways, as well as in the elimination of others cultures and their ways. Colonialism has affected Aboriginal culture in several ways; however, a significant area that has been affected is the traditional Aboriginal justice system. Aboriginal communities had their own sense of justice and punishment prior to the arrival of the Europeans in Canada, Aboriginal communities lost their traditional means of sentences to the implementation of European corporal punishment. In the Western concept of justice, the system punishes the offender through a process of trying to make the offender conform, often locking them away to protect society from the dangers that offender brings to those around them. Aboriginal systems (which varying) try to focus on restoring the peace and harmony of the community. The concept is meant to use the justice system to bring equilibrium into the offender and community, as balance is necessary for kinship and relationships to flourish. Elders within Aboriginal communities began to bring many of these traditional correction techniques back into society to fix the growing numbers of criminal offenders throughout the country nearing the end of the twentieth century. The purpose of this paper will be to first explore the different alternative techniques that are being restored into traditional Aboriginal communities, as discussed in Katherine Chiste’s article, “Getting Tough on Crime the Aboriginal Way: Alternative Justice Initiatives in Canada.” Next the paper will demonstrate critical reasons for the return of alternative justice measures as opposed to using the European techniques. Finally, this paper will explain why these measures are beneficial and effective within the modern Aboriginal communities. The concept of the return to alternative justice initiatives in Aboriginal communities is a beneficial, as it provides an alternative way to deal with offenders which allows the influence of old traditional processes to help restore the balance within Aboriginal society. Which is a more understandable and effective manner than the mainstream Western justice system. The first initiative discussed in Chiste’s article is that of Aboriginal justices of the peace. Aboriginal justices of the peace concept uses influences from European history. In European history, a justice of the peace was the leading citizen in a particular geographical jurisdiction; the lord of the manor who represented king and church in the lives of the local peasantry. In Aboriginal purposes, the federal Indian Act provides for appointments of Justices of the Peace (JPs) for by-law and minor Criminal Code infractions. The aim of this program is to have offenders dealt with by people who know the offenders’ life’s circumstances and understand how the various responses to an offence can affect a community’s well being. A benefit of this program is that homegrown JPs know the community and its members, and they have the right to use this knowledge purposefully. Through different trials, it has also become apparent that offenders find it tougher to be held accountable to knowledgeable community members than to outside justice professionals. A second type of alternative justice initiative is known as the tribal court. This notion was developed in the United States before it moved into Canada, but it is nonetheless Aboriginal centered. The courts use mediation as an alternative to litigation or other adversarial procedures. The most common type of court used is known as the modern-day tribal court. These consist of a broad contemporary jurisdiction, both civil and criminal, and they also have the choice between implementing a ‘traditional’ dispute resolution. Personal jurisdiction is usually limited to tribal members, and the courts have no jurisdiction over non-members or over cases arising under the U.S. Major Crimes Act. This method is beneficial as the courts have varying degrees of connection between tribal councils that govern the reservation. A third type of alternative measure is the community justice committees, (which is also known as youth justice committee and elders’ advisory panel). These groups came together for a variety of reasons: judges were tired of ineffectually sentencing the same old people for the same reasons; community members saw their young people drifting and lost, wanted to get involved with a purpose; and police were frustrated and disconnected with the people they served. An offspring of this method is the Family Group Conference (FGC), a process that brings together a young offender, the victim, their families, and their ‘supporters.’ It then creates a disposition for an offence which improves the chances that the offender will stay out of trouble in the future, and that the victim will be also be able to find resolution as well; a healing approach rather than a punitive one. The benefit of this committee method is the overall change in dynamics of the courtroom setting. The committee memebers sit around a table so they can talk and participate, and the community is not an outside observer and the offender is not standing with his back to families and friends only facing the judge and lawyers. A major benefit for these communities is the ability to work with an offender as part of a collaboration process, rather than an individual, isolated “case.” The fourth area that serves as an alternative measure is called a sentencing circle, and these are not an ongoing community structure, but rather they convene on a case-by-case basis. These circles allow offenders, victims, family, community members, and justice professionals to meet face to face to discuss the situation of the crime and collectively establish a plan for dealing with its aftermath. This process differs from the Western methods in that it seeks that the offender accepts emotional responsibility, rather than closing down emotionally behind a concealment of cooperation. Within sentencing circles, the offender must come face to face with the consequences of his or her act. This type of method does not work if there is doubt about innocence, or if the victim is unwilling to participate. The offender must admit their responsibility for an act before they undergo the process of recovering and dealing with the consequences. The next area of alternative initiative is actually called, alternative sentences, and this area can be classified into five categories: restitution, community service, loss of privileges, treatment, and banishment. The notion behind this category revolves entirely around the term ‘alternative’. Either you go to jail, or you do something else to atone for your crime. A benefit of this is that the entire community becomes involved; it is not the justice professionals, but rather the community who supervises and enforces the alternative sentence.
These alternative areas focus on four main Aboriginal elements that create a ‘tougher’ challenge for participants than anything the mainstream justice system has to offer. This alternative approach can be seen through these differentiations from the Western European justice system: knowledgeable stakeholders, not neutral professionals; mediation and consensus, not adversarial processes; local community, not remote bureaucracy; and healing and harmony, not coercion and revenge. The key push of this change in process is to move away from the inflexibility of punishment and incarcerations towards the spirit delivered by genuine rehabilitation and community involvement. This change is not only beneficial for Aboriginal peoples, but all Canadians would benefit from this process. The Canadian criminal justice system has traditionally been characterized by an over reliance on incarceration and, as a result, Canada ranks among the highest users of incarceration in the western world. Within these incarceration rates the problem is furthered by the overrepresentation of Aboriginal peoples in Canadian correctional facilities. The issue here for Aboriginals is described as a lack of adequate legal representation, problems with language and communication of legal concepts and assertion of legal rights. In recent history, with a significant chance of this occurring today, racial stereotyping by law enforcement and judges contributes to Aboriginal peoples being arrested more often, sentenced to longer prison sentences, and receiving the probation sentences at a lower rate than some other groups. There are different reasons for why this may occur, but often judges interpret the reluctance of Aboriginals to speak as a lack of remorse, respect or sign of guilt. Aboriginal peoples may be unfamiliar with the justice system and their rights and this also may result in their pleading guilty, even if they are not, without the benefit of counsel. Not only does the mainstream justice system affect the offender of the crime, but it affects the witnesses in as well. The mainstream system requires Aboriginal witnesses to behave in a manner that is entirely inappropriate for them and it affects the Aboriginal community in ways different from that of a non-Aboriginal. As Teresa Hanlon states in her article, Circle Justice: An Ethnographic Study, “Though clear cut models are unlikely, given the complexity of human interaction, programs can be loosely categorized according to characteristics which define the three forms of justice: the underlying principle, who is involved, the manner of decision making and goals.” In lieu of what Hanlon wrote, it is apparent that justice does not need to only be served in one particular way, by one particular establishment. Rather, she concludes that it is possible for justice to be served through Aboriginal alternative initiatives, and still adhere to the regulations and requirements of the law. What Aboriginal methods do, however, is add to this fundamental concept of justice. The traditions they bring to the table incorporate additional ideas such as: preventative, as well as restorative, mechanisms and practices needed to be restored throughout the community for there to be healing and justice. They feel that restorative communal justice is essential. It can reduce social and economic injustice and it can continue to limit the impact of imprisonment, especially imprisonment that is directly related to unemployment, debt, suicide, and innumerable diseases. Through the growing incarceration rates of Aboriginal peoples, especially for Aboriginal youth, many feel that creating and implementing a new alternative justice program is critical in order to produce change and lower the crime committed by Aboriginal people. Ongoing research and trial-and-error have established the effectiveness of the alternative justice initiatives, as discussed in this paper, on Aboriginal peoples. The five alternative justice initiatives discussed, Aboriginal justices of the peace, tribal courts, community justice committees, sentencing circles, and alternative sentences, all differ in varying degrees but maintain the fundamental concept of balance and community. Each initiative focuses on making the crime right within the community, rather than sending away the offender which doesn’t require him or her to deal with consequences other than being punished by being locked up. Research has also found an unfair disadvantage with Aboriginal offenders who are being forced into a justice system they are unfamiliar with, do not understand, and may lack proper representation. For Aboriginal peoples to have their own alternative justice system that understood than the Western, Colonialism concept of a justice system would be an overall be benefit to Aboriginal communities. This would also increase the sense of balance and harmony that has been lost within Aboriginal societies, which, in turn, would lead to less criminal offences and a more positive outcome for Aboriginal peoples.

Bibliography
Chiste, Katherine B. “Getting Tough on Crime the Aboriginal Way: Alternative Justice Initiatives in Canada.” In Indigenous Ways of Knowing Reader, edited by Dr. Winona Wheeler and Dr. Robert Alexander Innes, 304-318. Boston: Pearson Learning Solutions, 2013.

Gray, Barbara, and Pat Lauderdale. “The Great Circle of Justice: North American Indigenous Justice and Contemporary Restoration Programs.” Contemporary Justice Review 10, no. 2 (2007): 215-25. Accessed March 18, 2013. doi:10.1080/10282580701372137.

Hanlon, Teresa J. Elder. “Circle Justice: An Ethnographic Study.” PhD diss., University of Alberta, 1990.

Lujan, Carol Chiago, and Gordon Adams. "U.S. Colonization of Indian Justice Systems: A Brief History." Wicazo Sa Review (The Association for American Indian Research) 19, no. 2 (2004): 9-23.

Rousseau, Pierre. “First Nations and the Canadian Legal System: Conflict Management or Dispute Resolution?” PhD diss., University of Montreal, 1972.

Welsh, Andrew, and James R.P. Ogloff. "Progressive Reforms or Maintaining the Status Quo? An Empiracle Evaluation of the Judicial Consideration of Aboriginal Status in Sentencing Decisions." Canadian Journal of Canadian Criminology & Criminal Justice (Psychology and Behavorial Sciences Collection, EBSCOhost) 50, no. 4 (July 2008): 419-517. Accessed March 18, 2013.

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[ 1 ]. Carol Chiago Lujan and Gordon Adams, “U.S. Colonization of Indian Justice Systems: A Brief History,” Wicazo Sa Review 19, no. 2 (2004).
[ 2 ]. Katherine B. Chiste, “Getting Tough on Crime the Aboriginal Way: Alternative Justice Initiatives in Canada,” in Indigenous Ways of Knowing Reader, ed. Dr. Winona Wheeler et al. (Boston: Pearson Learning Solutions, 2013), 305.
[ 3 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 305.
[ 4 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 306.
[ 5 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 306-307.
[ 6 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 307.
[ 7 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 307.
[ 8 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 308.
[ 9 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 310.
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[ 11 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 312.
[ 12 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 311.
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[ 14 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 315.
[ 15 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 315.
[ 16 ]. Chiste, “Getting Tough on Crime the Aboriginal Way,” 316.
[ 17 ]. Andrew Welsh and James R.P. Ogloff, “Progressive Reforms or Maintaining the Status Quo? An Empiracle Evaluation of the Judicial Consideration of Aboriginal Status in Sentencing Decisions,” Canadian Journal of Canadian Criminology & Criminal Justice 50, no. 4 (2008): 512, accessed March 18, 2013.
[ 18 ]. Welsh and Ogloff, “Progressive Reforms or Maintaining the Status Quo?” 492.
[ 19 ]. Pierre Rousseau, “First Nations and the Canadian Legal System: Conflict Management or Dispute Resolution?” (PhD diss., University of Montreal, 1972).
[ 20 ]. Lujan and Adams, “U.S. Colonization of Indian Justice Systems.”
[ 21 ]. Rousseau, “First Nations and the Canadian Legal System.”
[ 22 ]. Teresa J. Elder Hanlon, “Circle Justice: An Ethnographic Study,” (PhD diss., University of Alberta, 1990).
[ 23 ]. Barbara Gray and Pat Lauderdale, “The Great Circle of Justice: North American Indigenous Justice and Contemporary Restoration Programs,” Contemporary Justice Review 10, no.2 (2007): 222, accessed March 18, 2013, hdoi:10.1080/10282580701372137.