Chapter 10 Gendered Genocide The Overincarceration of Indigenous Women and Girls

Pamela Palmater

This chapter is based on the author’s submission to the Liberal Senate Forum on Women in Prison, 18 April 2018, Ottawa.

Indigenous Nations all over Turtle Island on the lands now known as Canada, the United States, and Mexico, are diverse in their traditional cultures and governing structures. Historically, there were nonetheless some general similarities, especially in relation to the important role of Indigenous women. Indigenous women were often viewed at the hearts of our Nations as the life-givers and caregivers of our children, who in turn, would become the future Nations’ warriors, hunters, healers, leaders, and life-givers. In addition to their critical roles as life-givers, Indigenous women also acted as inter-tribal interpreters, negotiators, political advisors, and strategists, warriors, and leaders. They were critical in establishing and maintaining trading relations and peace in our territories. The reality that Indigenous women are now overincarcerated today stands in stark contrast to their positions of power pre-contact. I outline below this trajectory of violent dispossession of Indigenous women to incarceration and the ongoing colonial impacts.

Since Indigenous women are central to their Nations, colonial governments targeted the women in an attempt to dismantle our Nationhood and dispossess us from our sovereignty, our lands, and our resources. While colonial governments subjected all Indigenous peoples to brutal acts of violence, Indigenous women were specifically targeted in a form of “colonization as gendered oppression”—one that combined racialized and sexualized violence (National Inquiry into Missing and Murdered Indigenous Women and Girls 2019a, 229). Indian agents and police used food rations to extort sex from Indigenous women and girls (Palmater 2016). Our children were stolen and placed in residential schools where many were tortured; medically experimented on; physically and sexually abused; starved and died (Truth and Reconciliation Commission of Canada 2015). After residential schools, our children continued to be stolen from their Indigenous mothers in the Sixties Scoop of forced adoptions, which continues today in the modern foster care crisis (First Nations Child and Family Caring Society of Canada and Assembly of First Nations v. Attorney General of Canada 2011). At the same time, Indigenous women and girls continue to be forcibly or coercively sterilized—sometimes without their knowledge or consent (National Inquiry into Missing and Murdered Indigenous Women and Girls 2019b).

In addition to the physical violence, the Indian Act 1876 specifically targeted Indian women’s identities through exclusion from registration as an “Indian” and membership in our First Nations, setting up legal structures that prevented them from engaging in the governance of their communities for generations. This unequal treatment in Canadian law has been preserved in the Indian Act and, despite numerous court challenges and condemnation from the United Nations human rights treaty bodies such as those monitoring the implementation of the United Nations Declaration on the Rights of Indigenous Peoples and the Convention on the Elimination of All Forms of Discrimination Against Women,1 Canada’s piecemeal and limited amendments have left tens of thousands of First Nation women and children without social or legal entitlements (Canadian Feminist Alliance et al. 2019). The federal government refuses to repeal the remaining Indian registration provisions that combine to create legislative extinction dates for each First Nations—impacting First Nation men, women, and children alike (Palmater 2011). While we will all still be here physically, the disappearing Indian registration formula in the Indian Act—based on racist notions of blood quantum—ensures that there will be not legally recognized “Indians” in the future (Palmater 2011). Legislating Indian women and children out of the Act for decades has greatly reduced the recognized population already. No Indians means no Indian bands, and no reserves or treaty rights, which has always been an overarching goal of the Canadian state. Such racial and sexual discrimination against Indigenous women and girls has permeated federal and provincial laws, policies and practices resulting in devastating socio-economic conditions and is the root cause of today’s abused, exploited, disappeared, and murdered Indigenous women and girls. As reported by the National Inquiry (National Inquiry into Missing and Murdered Indigenous Women and Girls 2019a), it is genocide.

Canada’s dark history of racism, sexism, oppression, dispossession, and sexualized violence toward Indigenous women and girls continues into the present day. Ongoing racism and violence toward Indigenous women are enabled by poor socio-economic conditions which make powerful, warrior women vulnerable; it is not the so-called “high-risk” lifestyles that do so. Genocide is not a lifestyle; genocide is a complex set of legal, political, social, and economic structures of violence—created and maintained by Canada—through which Indigenous women and girls are forced to navigate to try to survive (National Inquiry into Missing and Murdered Indigenous Women and Girls 2019b). As I further discuss below, these are the conditions that fuel the overrepresentation of Indigenous women in prisons and Indigenous girls in youth corrections and the complex relationship between racism and sexism within justice, including sexualized violence against Indigenous women once they get to prison (Palmater 2016).

Indigenous peoples represent less than 5% of the population in Canada (Statistics Canada 2017).2 Indigenous women make up about half the Indigenous population, which is less than 2.5% of the Canadian population. Yet Indigenous women are grossly overrepresented in all of the crisis-level socio-economic conditions throughout the country and are disproportionately impacted by poverty and violence. At any given point in time, dozens of First Nations live under some type of drinking water advisory (Council of Canadians, n.d.).3 We know from previous studies commissioned by the federal government that 73% of First Nations water systems are medium to high risk (Neegan Burnside Ltd. 2011). This water crisis is on top of the housing crisis in First Nations where more than 23% First Nations live in overcrowded homes, 37% of homes are in need of major repair, 50% have mould or mildew, and some are simply not safe for human habitation (Assembly of First Nations 2013). Indigenous peoples can represent numbers as high as 50–90% of homeless people, depending on the region (Thistle 2017).

While these conditions are bleak for Indigenous people in general, they disproportionately impact Indigenous women, who are also overrepresented as single mothers. Recent reports confirmed that 53% of First Nation children on reserve live in poverty and those rates jump to 65% and higher in provinces like Manitoba and Saskatchewan (Beedie, Macdonald and Wilson 2019). These conditions of poverty have led social workers to accuse Indigenous mothers and families of neglect and now half of all children in foster care are Indigenous. First Nations children are far more likely to be reported for conditions of poverty than abuse (Wall-Wieler et al. 2017). Again, in provinces like Manitoba, that number is as high as 90% (Province of Manitoba 2018). It should be no surprise that First Nations women are far more likely to suffer from mental health issues like anxiety, depression, and substance abuse, especially where they have had their children apprehended (Canadian Association of Elizabeth Fry Societies 2016, 6). The rates of suicide attempts and suicides are higher for Indigenous mothers, Indigenous women have higher rates of suicide attempts overall, and suicide is one of the leading causes of death in Indigenous youth (Wall-Wieler et al. 2018). The many and often criminalized ways in which Indigenous women and girls must navigate chronic poverty and violence, such as drug use or trafficking, prostitution, or theft, has also gone largely unaddressed by the federal and provincial governments. This situation has also created the crisis of abused, exploited, disappeared, and murdered Indigenous women and girls.

According to the federal government and the National Inquiry into Murdered and Missing Indigenous Women and Girls, there are more than 4,000 murdered and missing Indigenous women and girls in Canada (The Guardian 2016). According to an RCMP (2014) report conducted prior to the National Inquiry and based on a limited number of 1187 “known” cases of missing and murdered Indigenous women, Indigenous women represented more than 11% of missing women and 16% murdered women nationally. However, we should be wary about relying on these numbers, given the many claims of under-investigation and the admitted under-reporting of ethnic identity of both the victims and perpetrators. Just like the instance of children in foster care, the national statistics do not paint the whole picture. In provinces like Manitoba and Saskatchewan, the murder rates of Indigenous women and girls are as high as 49% and 55% respectively. Contrary to the racist stereotypes often perpetuated in the media, Indigenous women are less likely to be killed by their spouse than Canadian women (RCMP 2014) and are more likely to be killed by a stranger (Bruser et al. 2015). Given the failure of governments to protect them, Indigenous women are also seven times more likely to be targets of serial killers (Benjamin and Hansen 2015).4 Indigenous women and girls also represent more than half of human trafficking victims (Barrett 2013). Relatively speaking, the perpetrators also know they have a high chance of getting away with it (Ibrahim 2016).5 It is clear that Indigenous women have been made more vulnerable to every form of violence as a direct consequence of colonialism.

All of these statistics related to the violence perpetuated by the state and society are replicated in the justice system. As of 2022, Indigenous women make up 50% of all women in federal prison and this figure continues to rise every year (Zinger 2022, 20). These numbers have increased by more than double since 2000. This is despite the fact that incarceration for Canadians in general is on the decline (Zinger, cited in Cardinal 2021). Indigenous girls make up 53% of those in youth corrections, but in some provincial facilities make up as much as 98% of the female correction population (Praill 2018). We know from the decades of reports from the Office of the Correctional Investigator, the Canadian Association of Elizabeth Fry Societies, and Indigenous women’s organizations that this problem has been getting worse with no substantive action from federal or provincial justice systems to slow or reverse the crisis (see also Standing Senate Committee on Human Rights 2021). From these reports, Indigenous women are also far more likely to be classed as maximum-security and considered high risk and high need and are also overrepresented in solitary confinement/segregation. Self-injury by Indigenous women in prisons is 17 times higher than non-Indigenous women (Zinger 2015, 51). Indigenous women are targeted at every level of the system.

While each Indigenous woman and girl in corrections has her own unique story and set of life experiences, the women also share many similar characteristics, which includes a common history of colonization, violence, and poverty; fewer opportunities for formal education; far lower incomes; and higher rates of mental health concerns and addictions than the general public. Approximately 90% of Indigenous women have suffered physical and/or sexual abuse prior to being incarcerated (Canadian Association of Elizabeth Fry Societies 2016, 10). As many as half of Indigenous women in prison in any given institution come from families impacted by residential schools. In 2016, more than half of Indigenous women had either attended residential schools or had a family member who did, and 48% had been removed from their family home by the foster system (Sapers 2016, 44) and the majority of those in youth corrections came from the foster care system (Brownell et al. 2020, xvii). The bitter irony of this crisis is that the majority of Indigenous women in prison are single mothers, and the majority of their children will end up in foster care. This serves only to start the cycle of dispossession again. In other words, Indigenous children are more likely to end up in jail than get a high school education (Hyslop 2018).

This crisis is not new. Indigenous overincarceration is well known to federal, provincial, and territorial governments and to those working in the justice system in general. Not only is this a long-standing crisis, but it continues to get worse. The incredible rates at which Indigenous peoples generally, and Indigenous women specifically, have been incarcerated have been called the new residential schools (Chartrand 2019). After decades of Indigenous peoples, human rights organizations, women’s organizations and Canada’s own Office of the Correctional Investigator raising the alarm on this issue, government officials have not taken urgent action. Canada has been found guilty of genocide against Indigenous women and girls for their continued failure to protect them from poverty, discrimination, violence, and overincarceration (National Inquiry into Missing and Murdered Indigenous Women and Girls 2019a).

This discrimination against Indigenous women and girls stems from Canada’s violent colonization of Indigenous territories but continues in the form of conscious acts of genocide based on sexism and racism. There have been many justice inquiries and commissions that have documented racism against Indigenous peoples at all levels of the justice system, including the Royal Commission into the Prosecution of Donald Marshall Jr. (Hickman 1989); the Manitoba Aboriginal Justice Inquiry (Chartrand and Whitecloud 2001); the Saskatchewan Indian Justice Review (Indian Justice Review Committee 1992); the Report of the Royal Commission on Aboriginal Peoples (Royal Commission on Aboriginal Peoples 1996); the Commission of Inquiry into Matters Relating to the Death of Neil Stonechild (Wright 2004); and the Ipperwash Inquiry (Linden 2007) to name a few. At the core of these inquiries is the racism experienced by Indigenous peoples from police, lawyers, judges, corrections officials, and at all stages of the justice system. No government to date has directly confronted or reversed this racism in the justice system in any substantive way.

Year after year, the Office of the Correctional Investigator has highlighted the overincarceration of Indigenous peoples and has identified it as:

• • a continuing crisis and embarrassment (Stewart 2003, under “Aboriginal Offenders”)
• • unchanged, unacceptable, and discriminatory (Stewart 2000, 31)
• • a grave situation and a result of systemic discrimination (Sapers 2005, under “Aboriginal Offenders”)
• • a persistent pattern of disadvantaged outcomes and inequitable results (Sapers 2008, under “Enhanced Capacities”)
• • a gap between Indigenous and non-Indigenous that continues to widen (Sapers 2009, 29)
• • a direct result of federal correctional policies and practices (Sapers 2010, 43)
• • a breach of statutory and constitutional rights of Indigenous peoples with disturbing and entrenched imbalances, where federal corrections seems impervious to change (Zinger 2020, under “Indigenous Corrections—Update”).

The Supreme Court of Canada (SCC) in R. v. Gladue (1999) stressed the need for alternatives to incarceration for Indigenous peoples, given the intergenerational impacts of colonization. The issue came up again in R. v. Ipeelee (2012), where the SCC confirmed their instructions to find alternatives to incarceration for Indigenous peoples at all levels of the system (see also Twins v. Canada [Attorney General], 2016). Yet, despite those cases, incarceration rates only continue to increase. In addition to this, the Gladue Reports that are prepared for Indigenous peoples as a way to inform judges about Indigenous backgrounds before sentencing are not available to all Indigenous people, do not stem the tide of incarceration, and are even used as tools to further discriminate against Indigenous peoples by using their histories against them once they enter corrections by classifying them as higher security risks (The Agenda 2018, 4:47–7:40).

Imprisonment represents not only stolen years from an Indigenous woman’s life, but it also results in reduced life chances. A woman who has been imprisoned is less likely to secure quality employment and provide for her children.6 She is also at higher risk of homelessness and losing her children to foster care and, as a result, she also has a higher chance of further criminalization. Indigenous girls in foster care have a higher chance of ending up in youth corrections and less than 50% of Indigenous children in foster care complete high school (Rutman and Hubberstey 2016, vii). The majority (85–95%) of forced foster care and adoptions break down as the child gets older, leaving them more likely to be homeless, vulnerable to exploitation and trafficking, and over policed (Sinclair 2007). Some move straight from youth corrections to adult prisons. It is a circle of state racism, sexism, violence, criminalization, and oppression that is endured from generation to generation.

Compounding this injustice is the significant risk to the safety, well-being, and lives of Indigenous women while in prison. Segregation is a unique reality for women prisoners, especially those in maximum security. Indigenous prisoners have the longest average stays in segregation and make up 50% of all those placed in solitary confinement (Native Women’s Association of Canada 2017, 6). This is despite that solitary confinement is considered by the United Nations and the Canadian courts as a form of torture (Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen 2017; United Nations Human Rights Committee 2015).7 Indigenous women in prison are also at higher risk for physical harm. According to Correctional Service Canada, 27% of deaths in federal prisons between 2009 and the end of the fiscal year 2016 were Indigenous people (Correctional Service Canada 2017, 35, Table 22). Assaults involving Indigenous women have doubled in recent years and the use of force on Indigenous women has tripled (Zinger 2015, 51). Corrections officers in prisons in different provinces are under scrutiny for numerous allegations of physical and sexual assaults of women prisoners (Culbert 2019). The Canadian Association of Elizabeth Fry Societies (2016) has long called for external reviews of these sexual assaults and to stop the use of male guards for women in prison.

While many changes are needed within corrections, more importantly, there is a lack of focus and priority put on the prevention of and alternatives to incarceration in the first place. Similarly, legislative amendments that prescribe mandatory minimum sentences negate the ability of judges to use their discretion in sentencing, which again has a disproportionate impact on Indigenous peoples. Laws that limit the ability of a judge to consider the many ways in which Indigenous women are criminalized for negotiating their way through poverty, violence, racism, and state genocide, make the crisis worse and does not serve any valid legislative or sentencing objective.

There is ample research to demonstrate that racism against Indigenous peoples infects every level of the justice system from policing, lawyers, judges, sentencing, corrections, and release. As this chapter has shown, Indigenous women are placed in vulnerable positions from systemic racism to the distribution of resources and Canada’s failure to protect their core human rights. The incarceration of Indigenous women also guarantees that their children will be impacted and statistically more likely to end up in youth corrections and adult prisons themselves. This is all done knowingly by those in the justice system.

This is a national crisis that requires urgent remedial action. It is time to move past surfaced recommendations and reforms like cultural sensitivity training for police, judges, and corrections officers. The problem is not a lack of awareness of or Indigenous culture itself—the problem is colonialism, racism, and sexism. Our culture is not at the root of the problem; the problem is the lack of accountability for sexualized violence in society and state institutions—including prisons and youth corrections. While this chapter cannot cover all the needed recommendations on how to move forward to end this critical crisis within Canada’s larger genocide against Indigenous women and girls, the following represents a few core recommendations that would help stem the increasing rates and reverse them:

1. 1. Immediately provide adequate needs and rights-based funding for all social programs on- and off-reserve at least on par with provincial funding levels, along with significant additional investments that address the housing and education backlogs, long-standing infrastructure deficiencies, and cumulative social and health problems that developed from lack of funding, with special attention to the particular disadvantages faced by Indigenous women and girls.
2. 2. Sufficient and stable funding to support First Nation justice systems, healing lodges, shelters, health facilities, and other related supports both on- and off-reserve, to enable alternatives to incarceration and the immediate decarceration of those already in prison, together with programs and supports for post-release.
3. 3. Immediately develop and implement a strategic decarceration plan for Indigenous women that provides an independent expert analysis on risk levels for current prisoners, together with age, health status, pregnancy, motherhood, and other social factors, together with a fully funded plan for release based on a combination of commuting sentences, early release, parole, community release along with the much-needed resources for support and other alternatives.
4. 4. Conduct a formal and targeted review (in partnership with First Nations, women’s organizations, prison advocacy groups and human rights experts) of physical and sexual abuse of Indigenous women prisoners within federal and provincial prisons and youth corrections, with a view to recommending and implementing preventative measures, and enforcing institutional accountability and discipline on a concept of zero tolerance for use of force, sexual harassment and/or assault against Indigenous women.
5. 5. Put an end to the practice of employing male staff to work in front-line contact with women in prisons and with youth in corrections.
6. 6. Increase funding for institutional and community support for Indigenous women with mental health issues to address the reality that women are being criminalized and incarcerated because of poverty, previous histories of physical and/or sexual abuse, social disadvantages, racialization, and disabling mental health and intellectual capacity issues.
7. 7. Put an end to the practice of placing Indigenous women prisoners in segregation, solitary confinement, segregated intervention units, or any similar conditions under a different name.
8. 8. Amend the Criminal Code to allow judges to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.
9. 9. Make full reparation and compensation for the harms suffered by Indigenous women and girls within prisons and youth corrections and address the lack of Indian registration, band membership, self-government enrollment, and access to treaty rights, Indigenous rights and their traditional lands and territories whether they live on- or off-reserve, in rural and remote areas, or large urban area.

Canadian prisons are not protecting society at large but are instead segregating Indigenous peoples—attacking the hearts of our Nations and clearing the lands for increased settlement and extraction of resources. There is no room to allow this crisis to continue unless the plan is exactly to incarcerate more Indigenous peoples. As a democratic society, based on the rule of law, which includes non-discrimination, non-violence, and respect for human rights, and Indigenous rights in particular, there needs to be a vested interest in addressing this crisis.

Prisons are the new residential schools for Indigenous women and girls—complete with racism, sexism, physical abuse, sexual abuse, and torture. Canada has already been found guilty of both historic and ongoing genocide against Indigenous women and girls—they should not be imprisoned for trying to survive such genocide. Decarceration and preventing incarceration of Indigenous women and girls must be a central part of any transitional justice plan moving forward to end genocide against Indigenous women and girls in Canada.