Chapter 16 Incompatible or Congruent? Can Indigenous and Western Legal Systems Work Together?

Traditional Indigenous Justice Systems

While there is great variety in the rules that Indigenous communities instituted and enforced, one constant is that Indigenous people effectively regulated the behaviour of individuals in their communities. The Dog Society of the Pawnee is one example of such a community in which an independent collective of individuals regulated behaviour within the larger community (MacLeod 1937). Some Clown societies of the Pueblos regulated behaviour through ritualized entertainment and teasing (Horton 1976). These two examples provide a glimpse at the diversity of traditional modes of behaviour regulation. In both, an attempt to change and reintegrate the offending individual(s) is made at the outset. At the same time, the communities were prepared to remove harmful individuals from the group through banishment. Given the challenges of a traditional subsistence life, banishment often, but not necessarily, equated to death (Llwelyn and Hobel 1941). Thus, mutual need and strong bonds served to reinforce community norms in a powerful and profound manner (Kunesh 2007; Llewellyn and Hobel 1941).

As Indigenous people came into contact with settler colonial populations, Indigenous populations were devastated by unfamiliar diseases and raids which significantly reduced their population even when friendship ensued. In other instances, relationships between the two nations deteriorated and war ensued, compounding the damage. In early contact times, Indigenous nations were able to match forces with the settlers, making peace a mutually desirable goal. Durings these early years of contact when nations engaged in peace negotiations, the terms tended to be more equal (Williams 1994, 983; Cornell 1988, 23–24). Early treaties often included “bad men” clauses that stated that bad or problematic men amongst the whites were to be returned to the federal government for punishment (“A Bad Man Is Hard to Find” 2014: 2521). These clauses were reciprocal, but required that bad men amongst the Indians be provided notice before being required to appear before the Indian agent, all the while allowing tribes to maintain justice amongst their own tribal members.2

In keeping with this approach, the US Supreme Court heard a series of cases in the late 1700s and early 1800s that became the foundation of US federal Indian law. In one of these cases, Worcester v. Georgia, the Supreme Court held that the Cherokee Nation could manage its own internal affairs without interference from the State of Georgia.3 These “bad men” clauses and early Supreme Court cases like Worcester v. Georgia highlight the intent of settler colonial nation to create a dual system of justice in the United States.

Another Supreme Court case, Ex Parte Crow Dog, is often cited as the first sign of pressure to reduce Indigenous control over their internal justice system.4 During the early twentieth century, the settler government focused on assimilating Indians into the settler society by relegating tribes, who were seen as a strain on the nation’s resources, to reservations. Efforts were made to assimilate Indians into mainstream society by breaking up the kinship systems and teaching them farming; however, tribal assimilation proved slow. In Ex Parte Crow Dog, a traditional Indian killed Spotted Tail, an Indian that the military often turned to for support, which angered the US military. The tribe provided a restorative justice focused resolution whereby Crow Dog was made to provide for Spotted Tail’s family through payment and service, which is stark contrast to the settler criminal justice system that relied on punishment. As a result, there was an attempt to try Crow Dog again in federal court. Through a writ of habeas corpus, Crow Dog successfully argued that he had already been tried and the military had no authority to hold him. While this case upheld Indigenous authority by agreeing with Crow Dog and mandating his release, it also prompted congressional legal reactions that eroded Indigenous authority.

The Crow Dog case was the impetus of the Major Crimes Act of 1885, which was the first significant erosion of Indigenous jurisprudence.5 The Major Crimes Act enumerated seven crimes that, if committed by an Indian on a reservation, would fall under the jurisdiction of the federal government. Over the years, this act was amended to expand to thirteen felony crimes.6 As a result, a complicated, Western-oriented criminal justice system developed that was focused on the nature of the crime, political status of the offender, political status of the victim, and the location of the crime. The answer to each of these fields determines whether the incident will be prosecuted in federal, state, or tribal court.7

Overrepresented in the Settler Carceral System

The operation of separate criminal justice systems has achieved several conflicting results. Tribal nations have developed unique and often highly culturally relevant tribal courts. Many of these tribal courts have incorporated tribal common law or traditional law (Austin 2009, 62–69) and use traditional justice models that lean toward a restorative focus. Restorative justice differs from the overarching American legal system, which is adversarial and punitive in nature, whereas restorative justice focuses on restoring the victim while reintegrating the offender back into society (Johnstone 2003, 12–22). Thus, having a separate judicial system has allowed tribal nations in the United States to maintain some judicial integrity and to continue to experiment with reintegrating culturally grounded rehabilitation methods.

At the same time, however, a complicated and multi-layered jurisdictional system developed, which has posed significant law enforcement challenges. For example, on certain reservations where much of the land has changed hands to non-Indians, tribal police only have jurisdiction on tribal lands, as opposed to the norm where tribes maintain jurisdiction over all lands within the exterior boundaries of the reservation.8 In such cases, tribal police are often forced to carry playbooks in their patrol cars to ensure that they have jurisdiction when responding to calls or pulling over vehicles. In these reservations there is an uneasy balance between federal, state, and tribal jurisdiction over criminal activities. Some non-Indians have become aware of this jurisdictional complexity and are using Indian reservations as safe havens for their illicit activities (Hudetz 2018).

Furthermore, tribal members who moved off-reservation were exposed to new norms of behaviour and a foreign justice system, resulting in the overrepresentation of the Indigenous persons in state and federal prisons. Recent figures show that Indigenous people make up 3.7% of US citizens in the federal prison system, even though they make up only 1% of the total national population.9 In fact, the number of incarcerated Indigenous adults keeps increasing. From 1999 to 2014 the number of incarcerated Indigenous adults increased by 4.3% per year compared to 1.4% for all other races (Minton, Brumbaug, and Rohloff 2017, 1). Indigenous adults also are more likely to be sentenced for the crimes that they are accused of—53% compared to 47% for all other races, and they were more likely to receive a sentence of more than 5 years (Minton, Brumbaug, and Rohloff 2017, 9).

Overrepresentation of Indigenous people in the Western criminal justice system does not just apply to the continental United States. Thirty-nine percent (39%) of Native Hawaiians in Hawai‘i are in state prison even though they make up only 20.1% of the population (Office of Hawaiian Affairs 2021). Native Hawaiians are also more likely to receive prison time and be sent out-of-state to serve their sentence than other races (Office of Hawaiian Affairs 2010). At least one scholar has suggested that this may be because of the tendency for Indigenous people to take responsibility for their actions as promoted by the traditional Indigenous justice system (La Barre 1947, 301–7). Thus, even though tribal courts may have developed justice systems that are modelled on their traditions, because of the distinction between on-reservation and off-reservation crimes and the concomitant loss of land that Indigenous people have experienced, the vast majority of criminal incidents end up being prosecuted in state or federal court, which limits the impact of innovative tribal justice approaches and results in overrepresentation in state and federal prisons.

Even more dramatic figures exist in Canada where Indigenous people are 4.1% of the population, but make up 30.4% of the incarcerated population. Indigenous women make up nearly 42% of the female incarcerated population (Clark 2019, 8; Statistics Canada 2016). The Indigenous women incarceration rate is nearly 12.5 times higher than that of non-Indigenous women (Statistics Canada 2018, 2). These figures have risen nearly 5% in the past six years since working on this chapter, indicating that despite a pre-existing recognition of this disparity, the system still grew its number of Aboriginal prisoners. Clark (2019, 13–25) notes that the causes for this overrepresentation can be traced to colonization, socio-economic marginalization, systemic discrimination, including policing, courts, and corrections, and a cultural clash. The failure of the Canadian criminal justice system has become so persistent that the Truth and Reconciliation Commission of Canada listed eighteen Calls to Action aimed at the justice system.

US Indigenous Approach to Criminal Justice

The US model of separate sovereigns first developed from the establishment of the states from the former colonies and, later, from the United States government’s preference for the use of treaties to resolve Indigenous–settler conflict. In Worcester, the court found that Indian tribes were capable of handling their own affairs within the boundaries of their reservations and that the state could not intrude on their authority.10 This philosophy of separate affairs continued throughout America’s early history. For instance, the Reservation Era (1829–1886) was a period in which American politicians sought to contain Native Americans on plots of land in order to facilitate westward expansion.

Throughout history, the government attempted to assimilate Indians. Even as they sought to separate Native Americans from the rest of the population on reservations, they sponsored programs to encourage farming, sewing, and other industrious tasks (Lomawaima 1995, 18, 81, 84, 88; Tetzloff 2009, 82). Despite these efforts, assimilation was overwhelmingly unsuccessful and many tribal nations not only lost much of their land, but were also restricted to the reservation. This meant Indigenous persons could no longer support themselves using traditional methods and were unwilling to adopt the “Western” ways promoted by the settlers. Thus, when industrialization began in the 1870s and the United States became exponentially more economically developed, whole tribal nations were not part of this journey.

It was not until the late 1960s that the Self-Determination Era (1961–present) ushered in a focus on tribal self-determination and capacity building. The era began in ernest when President Nixon, addressing the US Congress, argued that “the goal of any new national policy toward the Indian people” should be “to strengthen the Indian’s sense of autonomy without threatening his sense of community. . . . And we must make it clear that Indians can become independent of Federal Control without being cut off from Federal concern and Federal support” (Nixon 1970). Whether this was realized is another matter, but it is under this policy of self-determination that tribal nations have received funding for capacity building, taken over program formerly managed by the federal government, received direct federal grant funding, and strengthened the process of nation building.

Benefits to Self-Determination

Self-determination is the ability of a people to make their own rules and be governed by them. The Self-Determination Era encouraged tribal nations to develop their own systems of governance, including court systems, with the full support of the federal government. Prior to the Self-Determination Era, existing tribal courts used the US Code of Federal Regulations (CFR) laws and procedures. These CFR courts are tribally operated, but utilize federal procedures to adjudicate crimes articulated under the CFR rather than tribally enacted laws and procedures. As a result, these CFR courts operated in a similar fashion to the Western court system.

While many tribal nations continued to practice traditional peacemaking techniques during the Allotment and Assimilation Era (1887–1932), these traditional practices became seen as a legitimate legal processes during the Self-Determination Era. For example, the Navajo Nation Peacemaking Program, founded on a time-honoured method of resolving disputes among individual Navajos, now has an official office with twelve locations across the vast Navajo Reservation operating through the Navajo judiciary. Any criminal case may, under certain circumstances and with the agreement of all parties, be removed to the Peacemaking Court. Citizens can also request non-judicial services for issues such as family problems, lifestyle concerns, and problems in school (Navajo Nation Peacemaking Program 2012). Other tribal nations, such as Village of Kake in Alaska (Organized Village of Kake 2000) and Mashpee Wampanoag Tribe in Massachusetts also have peacemaking programs modelled after their traditional dispute resolution system (Mashpee Wampanoag Tribe, n.d.). In other words, because of the increased external legitimacy, if a resolution such as the one found in Ex Parte Crow Dog were to come up today, it may receive less outrage.

Whether the tribal judicial system creates a separate peacemaking court or whether they incorporate non-adversarial, traditionally rooted, restorative measures in their main court system, tribes can use self-determination to make decisions on how to best maintain justice in their communities. For example, the Navajo Nation operates both traditional Peacemaking and a more Western court system that utilizes Navajo laws and custom, whereas the Mashantucket Pequot Nation in Connecticut operates a unitary tribal court system that utilizes Pequot traditional laws, but in a modern Western court system. As long as the tribal court does not exceed its jurisdiction by prosecuting crimes articulated under the Major Crimes Act of 1885, tribal courts have primary jurisdiction, which must be exhausted prior to appealing to the federal court system.11 This relative freedom allows them to tailor their justice system to the needs of their people.

Concerns Related to the US Approach

Where issues occur is when Indigenous values of truth-telling collide with the Western adversarial model. The adversarial model attempts to take advantage of procedural missteps in order to convict or discharge the culpability of a defendant. When individual Native Americans transition between the two models, misunderstandings and unique procedural inequities develop. Utilizing a restorative method in a tribal court setting may prejudice Native American defendants in a state or federal court system because they may reveal facts that under a restorative system would be beneficial, but can be used against them in an adversarial system.

Another concern that has arisen as tribal nations have become more engaged in governance, the federal government has begun to realize the scope and quality of information that tribal nations control. For example, in the criminal law context tribes have their own criminal records, arrest histories, and tribal orders of protection. Tribes, as the entity that has primary jurisdiction over reservation lands, patrol their lands and are able to provide information on border incursions, suspicious activity, and other activities that may be useful to federal and state law enforcement. As a result, the federal government has attempted to encourage tribes to share information, especially in the criminal and homeland security contexts (Figueroa 2018, 41–42; Department of Homeland Security 2013). While this may be a sign of increased respect and understanding, it also fails to consider some of the unintended downstream consequences that may occur.

When a tribal citizen is charged in tribal court with a criminal offence and is found guilty, they may be required to participate in cultural programs, community service, probation, or even jail time. Restorative options may or may not include an expungement of the criminal record. When criminal records are not expunged and the information is then shared with other governmental entities, the tribal nation loses control over how that information will be utilized. For instance, there have been examples where tribal citizens who have two prior convictions in tribal court are brought up on enhanced state charges or receive longer sentences in the federal judicial system than they would have in the state judicial system (Forsch 2015; Droske 2008, 723).12 In addition, they run the risk of having a “three strikes” rule or some other state or federal sentencing enhancement applied at their sentencing hearing.13 Some might argue this result is the unfortunate cost of tribal self-determination rather than a repressive outcome.14 However, it is important to remember that because many tribal courts utilize some degree of restorative justice, these courts encounter the accused pleading guilty and waiving potential procedural concerns more often than adversarial courts do. Thus, even in a system that respects tribal self-determination, colonialism still resurfaces.

Thus, even in a self-determination framework the colonial system still influences the tribal model. This may, in turn, influence the approaches to justice that the tribe may find prudent to pursue. US tribal nations have the inherent freedom to create a justice system that matches their traditional and modern culture.15 While there are some limits to this freedom in terms of the types of crimes that the tribes have exclusive jurisdiction over, tribes have significant freedom to determine the type of behaviour that they believe is appropriate for their community. As a result, while some may see the US model of tribal law as a separate justice system that runs in parallel, it may more accurately be described as an overlapping helix since it crosses over with the federal justice system at several junctions.

Canadian Approach to Indigenous Criminal Justice

Although the legal system of Canada and the United States both trace their roots to British common law, there are several key distinctions between the two systems. First, unlike the United States which bifurcates its judicial authority between the state and the federal system, Canada follows a unitary judicial model.16 Thus, these courts are charged with adjudicating cases brought under federal, provincial, or territorial laws. Similarly, there is a singular Criminal Code in Canada which operates in all provinces and territories. However, while the legislative authority for criminal law rests with Parliament on the federal level, the implementation is mostly handled by the provincial governments. In other words, the provinces are charged with enforcing criminal laws that they have not necessarily passed. Accordingly, even though the provinces do not have the authority to create their own criminal laws, they still have a strong interest in the federal criminal justice system (Doob 1983, 256).

In addition, the Canadian court system, resembling a pyramid, is somewhat more simplified than that of the United States due to its unitary nature. Because the same criminal law applies regardless of the province or territory, there is less benefit to forum shopping or challenging the jurisdiction of a particular court. In the United States, it is fairly common practice for defence attorneys or for parties to a civil action to motion the court to change the venue of the hearing because they believe an alternative venue may be less biased or more sympathetic to their client (Fried 2005). This enterprise of forum shopping is less beneficial in a unitary system. The Canadian Supreme Court, then, as the apex of the pyramid has significant ability to influence the affairs of the provinces by continuing to encourage federalism and uniformity (Girard 2007, 739–40).

The unitary system has some benefits on the law enforcement side because training can also be standardized across provinces since the same legal elements exist regardless of which province the alleged crime took place in. Similarly, standardization makes integration of new ideas and methods related to Indigenous offenders easier since many of the variances between provinces have been eliminated. The unitary system, however, also has the effect of discouraging Indigenous sovereignty and autonomy by ignoring the unique cultural differences among Indigenous people, including their understanding of what constitutes criminal behaviour (Hodgin 2012, 968–69). Comparatively, a separate sovereign justice system would allow Indigenous people to pass and enforce laws that correspond to their cultural values and mores. For example, a matrilineal community may decide it is appropriate to extend the definition of incest beyond first degree cousins on the maternal line. Such a law may better reflect their traditional conception of appropriate behaviour.

Nonetheless, this federal system of justice has resulted in several benefits to the administration of justice in the courts, including the standardization of criminal law. The Canadian Criminal Code, which is regularly updated, provides a one-stop shop for criminal law. Thus, regardless of which province someone lives in, the same actions are considered a crime and the same elements must be proven in order to be convicted of that crime.17 Similarly, changes made at the national level would automatically trickle down into the provincial level. Finally, because the court system is unified there is less need to adjudicate jurisdictional challenges, which produces some efficiency. These benefits trickle down to First Nations as well since it reduces the need to educate and re-educate multiple levels of government about the unique aspects of their tribal justice system. For instance, once a specific topic of concern is addressed, such as the consideration of negative colonial experiences for all self-identifying Indigenous individuals during sentencing, also known as a Gladue Reports, this principle theoretically applies universally across provinces. Although it is accurate to state that many of these provisions are unequally applied and result in some variation between provinces, the reality is that the principle nonetheless exists uniformly, which is not true for US tribal nations, where some scholars have used the term jurisdictional maze to refer to Indigenous criminal jurisdiction.

Concerns Related to the Canadian Approach

This focus on a strong federal judicial system has significant impacts Indigenous communities in Canada. Unlike the United States where tribal nations have retained their judicial authority, in Canada all crimes are adjudicated under the federal Canadian Criminal Code regardless of whether the offender is Indigenous or the crime occurs on a reserve. There is no doubt that this model is simpler to implement; however, concerns related to cultural relevancy and self-determination exist (Washburn 2006, 781–82). The ability to determine what actions are criminal, how those actions are specifically defined, and what sentences each criminal act carries is fundamental to reinforcing acceptable modes of behaviour (Hart 1958, 418–27; Washburn 2006, 832–36). Without having control over the judicial process, the justice that is meted out may not be legitimate to the people.

In its essence, a judicial system provides a way to regulate behaviour. It allows a community to ensure that its citizens meet certain moral and behavioural standards. Laws, then, represent a code of conduct endorsed by the larger community. Differences in laws, processes, and sentences all highlight the cultural differences among communities, and suppressing these differences through the application of a Western model may result in a reduction of internal legitimacy (Cornell 1992, 9–15; Riley 2018, 531–36). In order for Indigenous nations to exercise true self-determination, control the over the judicial process is paramount. Indigenous nations need the ability to create laws, when necessary, and to change laws as needed, using a process that is legitimate in the eyes of the community.

Under the Canadian model of a unitary judicial system it is the colonizing government that has the power to regulate the conduct of the Indigenous people. Not only do Indigenous people not have the authority to alter the laws of the colonizer in order to better fit their own codes of conduct, they cannot impose their beliefs upon the larger settler community as has been done unto them. Attempts at mitigating this imbalance through the implementation of healing lodges and sentencing circles have been made, but implementation of these options must always be done with the “blessing” of the colonial government.

Benefits of a Unitary Approach

Despite the challenges, one of the benefits of a unitary system such as the one in Canada is that Indigenous communities are incentivized to work within the colonial structure to effectuate changes and improvements, which, if successful, may result in a large impact as the lives of Indigenous people. For example, healing lodges in Canada are able to work with a multitude of Indigenous defendants precisely because they are not limited to one reserve. These healing lodges, which are are made available to a largely minimum-security population, are technically an extension of the state, but are nonetheless influenced by Indigenous healing concepts (Correctional Service Canada 2013).

The overrepresentation of Indigenous people in the prison population is an unfortunate testament to the lingering effects of colonialism. Indigenous prisoners make up 28% of the Canadian prison population even though they only comprise 4.3% of the total population (Office of the Correctional Investigator 2018, 11; 61). This highlights the negative effects of colonialism on Indigenous people, but also allows for better data collection and analysis in order to determine the utility of the restorative methods utilized due to the population size (Milward 2011, 30). Several scholars have suggested that colonialism affects Indigenous people in ways similar to post-traumatic stress disorder (PTSD) (Braveheart 2003, 10–11; Ehlers, et al. 2013, 6–8). PTSD is, in turn, correlated to an increased rate of imprisonment (Hamilton and Sinclair 1991), difficulty integrating, and increased criminalization (Friel, White, and Hull 2008, 72; Calhoun et al. 2004, 9–11).

Canada, like the United States, has a history of federally sponsored assimilation policies, which pushed many Indigenous people to reside off-reserve to escape poverty and seek additional economic independence (Statistics Canada 2011, 10–11). Legislation that defined Indigenous status, compulsory enfranchisement, outlawing cultural practices such as potlatch, and residential boarding schools all supported assimilationist policies that disconnected Indigenous people from the land, their culture, and families (Monchalin 2016, 123–24). Because the Canadian unitary system forces Indigenous people into the colonial judicial system, it provides an opportunity for a more meaningful approach to criminal justice reform since Indigenous people reach a critical mass, thus enhancing successful advocacy. In the United States, many tribal communities have pragmatically chosen to focus criminal justice efforts on their own tribal court. Nevertheless, when more than half of the tribal citizens reside off-reservation and would come before the state or federal judicial system if charged with a crime occurring off-reservation, focusing on tribal justice systems leaves the majority of justice system touchpoints unaffected.

Inescapable Colonialism?

Canada’s unitary justice system includes national guidelines detailing how one can participate in criminal justice alternatives such as healing lodges. Under the Corrections and Conditional Release Act (CCRA), the Correctional Service Canada (CSC) uses the Custody Rating Scale to determine the risk of an offender (Correctional Service Canada 2018, Annex B).18 Only low risk prisoners as determined by this scale may participate in these alternative programs. Static factors such as sentence length, age at the time of the crime, and prior offences weigh heavily in one’s risk factor. These are all areas where Indigenous people tend to be systemically overrepresented and consequently Indigenous prisoners tend to have higher risk factors (Milward 2011, 3, 41, 47). Accordingly, Indigenous prisoners are systematically disadvantaged when judged under this framework making Indigenous prisoners less likely to qualify for alternative programs and later be granted parole. Furthermore, at least one scholar has found that some of these factors, such as criminal history, have no predictive value of future criminal justice involvement for Indigenous prisoners (Webster and Doob 2004, 403–5). This finding suggests that an alternative rating system may be more appropriate for Indigenous prisoners in Canada (Milward 2011, 36–38).

Thus, the sad reality is that both the Canadian model that oppressively dictates the boundaries of the laws and justice system that Indigenous people must comport to and the US model, which purports to support self-determination by allowing tribal nations to create their own laws, but has created a hegemonic belief among many US tribal nations that a punitive justice model is preferable, in actuality illustrates inescapable colonialism. The Canadian model at least provides for a type of transparency as to the boundaries and rules of the “game.” Under the US model, many tribal nations are told that they have self-determination, and to a certain degree they absolutely do; however, they also are induced to create a justice system that meets Western standards of judicial behaviour.

In both the United States and Canada, the colonial judicial system is set up to be adversarial in nature, which is incompatible with many traditional models of Indigenous justice (Reimund 2005, 11–12). The adversarial system rewards strategic manipulation of the procedural aspects of a case and discourages truth-telling, which is an important part of restorative justice systems. In fact, taking responsibility for one’s actions is a mandatory element of restorative justice (Wenzel et al. 2008, 378).

Furthermore, the punitive aspects of Western judicial systems not only do not match more traditional Indigenous methods of justice, but they do little to repair the harm done to the victim. The punitive system is a repressive system founded on the idea that punishment will not only deter others, but will in and of itself rehabilitate an offender. This idea has been shown to be misguided (Tannenbaum 1938, 475–76; Sutherland and Cressey 1992, 278–320; Kramer 1996, 55). When implemented on a juvenile or youthful offender, a punitive focused approach more often results in the solidification of criminal character into adulthood (Fagan 2010, 53–54). When a repressive approach is implemented among adults, educational and career opportunity costs among prisoners appear, which has been shown to lead to increased rates of recidivism (Rubin 2003, 56–62; Kramer 1996, 3; Fagan 2010, 53).

Regardless of the model that an Indigenous community must operate in, it is imperative to understand the invidiousness of colonialism. Although there may have been human rights-oriented changes through the centuries, the fact still remains that the judicial system is set up in a colonial structure that was not designed by Indigenous people themselves. As a result, it is important for Indigenous communities in both nations to acknowledge and protest unintended consequences as well as strive to coordinate with the settlers. Thinking deeply or for the next seven generations is critical, as tribal communities decide how to restructure their own judicial system and determine how to best allocate scarce resources to meet the needs of their citizenry.19

Best Practices in Canada

As a consequence of the limited self-determination that the Canadian criminal justice model offers to Indigenous nations to create their own legal justice system, Canadian Indigenous communities have focused their efforts on restoring the Western justice system writ large. In 1992, for example, Canada passed the CCRA, which allowed the CSC to make agreements with Aboriginal communities for the “care and custody of offenders who would otherwise be held in a CSC facility” (Sapers 2012, 3). Although some healing lodges, such as the Native Counselling Services of Alberta, existed as early as 1988, the CCRA provided more legitimacy and now nearly ten are in operation (Nielsen 2016, 323). These healing lodges seek to incorporate Indigenous values into the corrections system for the purposes of healing, but they do not attempt to incorporate restorative justice into the pre-sentencing system.

Healing lodges are minimum security institutions that offenders can transfer to post-sentencing in order to participate in Indigenous-focused programs geared toward healing the offender and reintegration upon release. Although the actual practice varies, the premise of these programs is that they are based on the Indigenous values of balance, individual authority, non-coercion, collectivism, interconnectedness, and healing (Dumont 1996, 26). Counselling by Elders along with participation in ceremonies strengthen the individual’s connection to community and provide mechanisms for them to deal with stress (Duran and Duran 1995, 196–97).

Studies indicate the recidivism rate of people leaving the healing lodges are between 3.5% and 11%, which is quite low given that Indigenous populations are at high risk of recriminalization (Correctional Service Canada 2013). Evidence also indicates that participation in culturally relevant programs, regardless of the locus of those programs, decreased recidivism by 9% (Gutierrez, Chadwick, and Wanamaker 2017, 341). According to Sioui et al. (2001, 43–44), Indigenous prisoners who participated in cultural activities have a recidivism rate of 3.6% compared to 32.5% for those who did not, a rate of 14.4% for those who participated in spiritual activities, such as sweat lodges, compared to 24.2% who have not, and a rate of 12.9% for those who interacted with Elders compared to 26.8% for those who have not.

Although Canadian healing lodges have produced some impressive results, they have also experienced challenges. Perhaps the most pressing issue is that there is not enough space to adequately serve the Canadian Indigenous prisoner population. Furthermore, in some provinces there are no healing lodge facilities at all. Another concern is that the CSC has opted to provide their own services through “Pathway Units” rather than contracting with First Nations and other Indigenous providers. Not only does this provide an end run around First Nation self-determination, but it also increases the struggle for funding that exists among First Nation lodges since the same funds are utilized for both First Nation and provincial run services (Nielsen 2016, 327). Using a lack of capacity on the part of First Nations as the justification, the CSC has taken over the project and funding themselves. Nielsen suggests that even though the CCRA provides clear support for Indigenous people taking on these programs, the colonial structure has resisted full implementation of the program resulting in diminished potential for change. However, despite these challenges, there is evidence that healing lodges have been beneficial for Indigenous offenders. And even though they are part of the colonial justice system they may have a larger positive impact compared to the US model, which supports a separate tribal justice and correction system.

In a similar vein, First Nations have attempted to integrate Indigenous ideas into the colonial legal system. For example, Canadian courts have utilized sentencing circles in order to rehabilitate individuals in accordance with the Indigenous community’s traditions. For example, Judge Stuart in the Yukon even used sentencing circles in serious cases. Although there is no statute authorizing this type of sentencing, judges are able to use their judicial discretion to provide this type of community driven sentencing (Stuart 1997, 59–60). The sentencing circles used by Judge Stuart followed the cultural values of the Indigenous people of the Yukon region, which is that: (1) a criminal act represents a breach of relationship between two individuals and between the offender and the community; (2) repairing these relationships is imperative to the sustainment of the community; and (3) that the community is better positioned to repair conduct because the root causes are likely socio-economic (Lilles 2002).

Sentencing circles require dedicated effort, are open to the entire community, and are limited to cases where participants demonstrate a commitment and sincerity to rehabilitation and either plead guilty (preferably early in the process) or fully accept a determination of guilt (Lilles 2002; Spiteri 2001, 11–12). Because Canadian criminal law does not specifically allow for sentencing circles, judges who utilize them see them as an extension of judicial discretion (Green 1998, 72). Judge Lilles, for example, generally held two hearings. The first provided a set of goals and actions that the offender must perform in order to receive his or her final sentence and the second hearing several months later reviewed the offender’s progress toward those goals. Other judges convene sentencing circles upon request (usually by the offender) and defer heavily to the Indigenous community regarding procedural aspects of this model (Spiteri 2001, 84).

Sentencing circles, of course, are limited by Canadian criminal law and procedures, which institute mandatory minimums for certain offences that cannot be contravened through an alternative sentencing process. In addition, at least one judge has determined sentencing circles are best utilized for crimes where probation is a possibility (Green 1998, 91). Furthermore, judges do not always accept the recommendation of sentencing circles. Goldbach (2016, 91) notes that in 2009 and 2010 judges did not accept the sentencing circle’s recommendation more often than it did accept them. Yet when the community fully engages in the process and the offender is motivated, according to Judge Lilles, it is rare for an offender to fail. This, then, supports the potential of sentencing circles.

Other nation-states such as New Zealand have statutorily solidified sentencing that considers the effects of colonialism. In New Zealand, the Sentencing Act passed in 2002 allows a judge to consider cultural factors including connection to whanau and iwi when making sentencing determinations (Taumaunu 2014).20 Canadian Gladue Reports are similarly a type of pre-sentencing report under Section 718.2(e) of the Canadian Criminal Code that provides a method of analysis, which considers the Indigenous status of the person at sentencing.21 This system ostensibly allows opportunities for services specifically geared toward the offenders background and that use a culturally relevant approach. However, because access to these alternative services vary based on geography, many Aboriginal offenders do not receive the full benefit promised by Gladue (Hebert 2017, 168). Nevertheless, these processes, which work explictly within the criminal justice system of the colonizer, provide a mechanism to Indigenize the Western court system, thus allowing for the possibility of improved outcomes for Indigenous people. The United States could benefit from a similar mechanism to account for the lingering effects of colonialism on Indigenous people and opportunities for alternative support services.

Although we are seeing some interest in restorative approaches in the larger US judicial system, change has been slow. Concerns have been raised that incorporating a restorative approach would create constitutional problems. For example, some are concerned that a person’s 5th Amendment right to be free from self-incrimination and double jeopardy would be implicated if the accused is encouraged to “take responsibility” for their actions. Sixth Amendment issues related to the right of effective assistance of counsel and an impartial jury may also be jeopardized by community participants that support the victim. Theoretically, the 8th Amendment’s prohibition of cruel and unusual punishment may be implicated if punishments are humiliating, shaming, or if they include banishment (Reimund 2004, 23). As a result, most restorative programs in the United States are exclusively post-trial and pre-sentencing, which reduces the potential conflicts that may arise. Despite these concerns, US tribal nations should consider developing healing lodges and pushing state and federal courts to utilize sentencing circles and Gladue-type reports in order to better serve the majority of their tribal citizens who tend to appear in state and federal courts.

Best Practices in the United States

While focusing on restoring the Western colonial judicial system may have a larger impact on a most Indigenous people, it nonetheless does not provide the full effect and impact of self-determination. As such, resources need to be allocated to developing internal Indigneous legal traditions that are a cultural match to the communities’ traditional justice sense and that are seen as legitimate in the eyes of the Indigenous community. The more that Indigenous communities can take control over their own futures, the better the outcomes will be.

Having a separate judicial system has provided US tribal nations increased flexibility to create and implement laws that are culturally relevant, steeped in tradition, and seen as legitimate by their citizens. Tribal courts are similarly free to create their own judicial procedures that rest on restorative principles. Having this type of autonomy over the judicial system allows tribal nations to innovate by providing programs, services, and other rehabilitative efforts geared toward the specific needs of their community. Canadian Indigenous communities may be able to incorporate some of these concepts when tackling justice issues in their communities, but do not have access to the full spectrum.

Ideally, tribal judicial systems have de jure (legally sanctioned) authority alongside de facto (the current state of affairs regardless of legality) authority. However, a regulatory system need not have the force of law in order to maintain legitimacy in the eyes of the community and thereby even a non-legally sanctioned judicial process can be a useful tool to a tribal nation in better servicing its citizenry. Consider the Listuguj Mi’gmaq Nation and their quest in the early 1980s to manage fish stocks along the Restigouche River that runs between New Brunswick and Québec (Cornell et al. 2010, 5). Based on the de jure authority granted by treaties, they saw the importance of regulating the fish stocks as their way of life was being threatened due to overfishing. Through a standoff with the Provincial police and some citizens questioning the abatement of their rights to fish, the nation’s leaders remained steadfast. Now the Listugui Mi’gmaq Nation manages the waterway through a Management Agreement with the province that was passed in 1993, and which provides for Mi’gmaq rangers to patrol the waterways and enforce Mi’gmaq law (Cornell et al. 2010, 14–15).

Any judicial system must maintain high standards to ensure independence from unfair influence. Independence from tribal politics ensures that decisions made by tribal arbiters will be honoured. In the Lustugj Mi’gmaq case, there were regulations on taking fish, which supported a type of legitimacy that would not have been possible had certain tribal members been able to take and others not. Politicians must ensure that they do not have the ability to override judicial decisions nor “punish” tribal judges by removal or reduction in pay for decisions they may personally disagree with (Flies Away, Garrow, and Jorgenson 2012, 120–23). An independent judiciary is imperative for the proper regulation of behaviours of citizens and to create an environment conducive to nation building. By taking control of the management of fishing, the Lustuguj Mi’gmaq nation was able to rely on de jure authority granted by treaties.

The Lustuquj Mi’gmaq example provides a blueprint to reinforce how to gain legitimacy in the eyes of one’s own community and also in the eyes of the colonial system. In this particular case, there was a converging of interests that allowed the provincial government to acknowledge the benefit of cooperating and supporting the plan for fish stock restoration. However, in other cases, the colonial power may not see the benefit of utilizing a more traditional Indigenous approach. Thus, success from the Indigenous perspective may be difficult to realize. Framing the issue based on mutual benefit can be useful in this effort.

Indigenous communities that are able to set up separate restorative systems outside of the federal, state, or provincial system should be encouraged to do so. These Indigenous systems can operate in familial civil disputes or in a criminal context upon the agreement of the parties. For example, US schools have recently started moving away from a zero-tolerance disciplinary policies to a more restorative model where juveniles with disciplinary issues are encouraged to explore their behaviour rather than simply be punished (Guckenburg et al. 2015, 3–4). The benefit of this type of model is that the community does not necessarily need de jure authority to implement it. In other cases, a restorative system may be used in collaboration with a more conventional justice system. The Navajo Nation’s Peacemaking Court, for example, handles both criminal and civil cases that have been transferred from the Navajo court as well as any dispute among family, neighbours, and friends upon agreement of all parties.

Furthermore, when creating a separate restorative system communities can develop collaborative relationships with state and local authorities to transfer cases involving tribal citizens to a tribally sponsored restorative court, such as tribal wellness courts. In the United States, tribes such as the Snoqualamie, Chippewa, and Sisseton-Wahpeton Oyate have wellness courts that have entered into memoranda of understanding (MOU) with local authorities to have tribal members convicted in the state or local court transferred to the tribal drug courts who oversee their rehabilitation. These tribal wellness courts incorporate traditional healing methods such as language, drumming, and other ceremonies to help provide offenders with the tools they need to re-enter society (Makepeace 2018, 27:49). Incorporating culturally appropriate approaches to rehabilitation is one way Indigenous communities can better serve their citizens.

Conclusion

The United States and Canada developed unique Indigenous criminal justice systems. The US model evolved into a system of invidious colonialism resulting in the hegemonic moulding of Indigenous justice systems to comport with the Western colonial model. To put this simply, even when the colonial power is respecting tribal justice systems through comity of judicial decisions and equality of tribal court convictions, the colonial system still operates to reduce the ability of tribal nations to use restorative justice approaches without negative impacts such as increased chances of tribal citizens being convicted under “three strikes,” which treat any prior felony level conviction as a strike leading toward a mandatory life sentence.

The Canadian model of Indigenous criminal justice, on the other hand, does not purport to provide Indigenous self-determination in criminal justice. Rather, this model operates in a way that ignores the cultural differences between the larger Canadian community and that of Indigenous people. As a result, Indigenous people in Canada have been forced to work within the larger judicial system creating incremental changes and Indigenizing the entire criminal justice system rather than just focusing on their reserve. While these efforts have had mixed success and only recently started to produce results in terms of incorporating innovative culturally focused approaches, these efforts have the benefit of reaching a larger population of Indigenous people since most Indigenous people in North America interact with the colonial criminal justice system.

Recognizing the restorative foundation of traditional Indigenous justice systems is the first step to creating a judicial system that works for the entire nation-state. The reality is that neither the US model nor the Canadian model works perfectly for Indigenous communities. Creative approaches to integrating a restorative approach within the colonial judicial system should be considered by US-based tribal nations. Similarly, Indigenous Canadian nations should consider exercising de facto sovereignty and creating a separate restorative judicial system that would support their citizens. Much can be learned by Indigenous people crossing the colonially fashioned border to explore methods and models to resist colonialism and increase Indigenous well-being.

Notes

1. 1 This new ethic of political accountability brought about the US War of Independence in 1775.

2. 2 It should be noted that the clauses that dealt with depredations committed by Indians were preempted in 1891 by the Indian Depredation Act (1891, chap. 538, 26 United States Statutes at Large 851). See also Tsosie v. U.S., 825 F. 2d 393 (Fed. Cir. 1987).

3. 3 Worcester v. Georgia, 31 U.S. 515, 517 (1832).

4. 4 Ex Parte Crow Dog, 109 U.S. 556 (1883).

5. 5 Major Crimes Act (as amended), 18 U.S.C. 1152 et seq.

6. 6 Murder, manslaughter, kidnapping, maiming, felonies under chapter 109A, incest, felony assult under section 113, assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and felony under section 661 are currently enumerated under Pub. L. 114–38.

7. 7 There have been some recent efforts to try to mitigate this complexity by expanding tribal jurisdiction in specific cases, such as domestic violence. See Tribal Law and Order Act, 124 Stat. 2258 (2010); Violence Against Women Act, 124 Stat. 54 (2013).

8. 8 DeCoteau v. District County Court, 420 U.S. 425 (1976).

9. 9 It is important to note, however, that these numbers only consititute crimes that occur on reservations or other federal lands. If an Indian commits a crime off-reservation the crime would be prosecuted in state courts and, if sentenced, would serve in a state prison. To a certain degree we expect to see a higher percentage of Indian offenders in federal prison because the federal government is the primary prosecutor for all felonies committed by Indians on tribal lands; however, this percentage is more than double the population at large. In fact, in 1997, of all incarcerated Indians only 3% were in federal detention. Local jails, state prisons, parole, and probation accounted for 18%, 26%, 7%, and 47% of the population, respectively (Chaiken 2000, 5, 37, 86). No accurate data on Indian or Native Hawaiian inmate population are being collected and most data obtain is cross-referenced with US Census data, which allows self-reporting of race. Better data collection is needed to understand the complex issues surrounding indigneous overrepresentation in state and federal prisons.

10. 10 Worcester v. Georgia, 31 U.S. 515 (1832).

11. 11 National Farmers Insurance Company v. Crow Indian Tribe, 471 US 847, 857 (1985) noting that Plaintiffs must exhaust tribal court remedies before bringing an appeal to federal court. See also Major Crimes Act (as amended), 18 U.S.C. 1152 et seq.

12. 12 An enhanced charge enables a judge to impose a more severe sentence than would otherwise be the case, typically on the grounds of an aggravating factor of some sort, such as prior convictions. Enhanced charges are allowed under some state criminal codes when an offender is charged with specific crimes, such as those involving firearms, or is considered a “persistent offender.” To take Washington state as an example, see RCW 9.94A.030 at 42(b) and, for context, RCW 9.94A.535 (“Adjustments to standard sentences”).

13. 13 See, for example, U.S. v. First, 731 F. 3d 998 (9th Cir. 2013), which allowed a prior firearm conviction despite lack of counsel; U.S. v. Shavanaux, 647 F. 3d 993 (11th Cir. 2011), which admitted a prior tribal domestic violence prosecution for sentencing purposes. “Three strikes” laws state that individuals who were twice convicted of a serious offence (such as felony) would receive a mandatory life sentence if convicted for a third offence. Notably, it does not matter whether the prior offences were violent or not. “Three strikes” laws were first implemented at the state level, especially in Texas and California, before they were promoted by President Clinton at the federal level in the Violent Crime Control and Law Enforcement Ban.

14. 14 U.S. v. Bryant, 136 S. Ct.1954 (2016).

15. 15 U.S. v. Lara, 541 U.S. 193 (2004) (affirmed that Congress recognizes and reaffirms tribe’s inherent criminal jurisdiction over its tribal members).

16. 16 Roozeh (Rudy) Baker, “Proportionality in the Criminal Law: The Differing American Versus Canadian Approaches to Punishment,” University of Miami Inter-American Law Review 39, vols 3–4 (2008): 483, 485.

17. 17 The author notes that Québec utilizes a Civil Law Code that traces its origins to its French heritage rather than the common law that is used throughout the remainder of Canada. However, this difference does not extend to the criminal law arena.

18. 18 Correction and Conditional Release Act of 1992, http://laws-lois.justice.gc.ca/eng/acts/C-44.6/20021231/P1TT3xt3.html.

19. 19 Seven generations is an Iroquois Confederacy concept that acknowledges that the decisions that one makes today will be felt by those seven generations from now. Thus, it is a reminder to think in terms of long-term sustainability.

20. 20 Judges may collect evidence and hear from family and Elders. In addition, Rangatahi Courts or Marae Youth Courts are available to youth offenders who wish to be sentenced in a more traditional setting.

21. 21 R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688. The Canadian Criminal Law Code, s 718.2(e) requires judges to consider “all available sanctions, other than imprisonment, that are reasonable in the circumstance and consider with the harm done to victims or to the community . . . for all offenders, with particular attention to the circumstances of Aboriginal offender.”

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