Not Just the Peace Pipe but also the Lance: Exploring Different Possibilities for Indigenous Control over Criminal Justice

Introduction

This article will begin by exploring whether contrasts between restorative and punitive models of criminal justice inform an ideological struggle between Western and Indigenous approaches of criminal justice as Indigenous communities strive for greater control over criminal justice. There is a perception of such an ideological struggle because many feel that Indigenous methods of justice that resemble restorative justice can provide effective solutions to the problem of Indigenous overincarceration. The honest answer is partly yes and partly no. An unqualified yes has some merit but can also be misleading. It neglects important considerations such as Western recognitions of restorative justice, the degree of cooperation between Western criminal justice systems and Indigenous communities, that tradition may not always remain relevant in contemporary Indigenous communities, persuasive critiques against restorative justice, and significant punitive inclinations among Indigenous peoples both past and present.

This analysis is insightful, but it also offers possibilities for Indigenous control over justice. Indigenous communities may want to revive traditional modes of corporal punishment as forceful alternatives to incarceration, or integrate them into restorative resolutions. Restorative justice processes can also be structured to deal with problems of power imbalance. Both possibilities can be explored in a meaningful effort to address community safety so that Indigenous justice does not necessarily involve a lopsided emphasis on offender healing. This can also add a new dimension to dialogues between Indigenous communities and Western states. Western states have accommodated Indigenous approaches for lesser offences but have been reluctant when it comes to more serious offences. An untried but interesting possibility is to pitch corporal sanctions as deterrent alternatives to negotiate for greater control over criminal justice, serious offences included. It can be argued that such sanctions are not necessarily more inhumane than incarceration, provide deterrence and retribution, and are more culturally meaningful. Indigenous communities can also include processes designed to address power imbalances in their proposals. The idea is to deflate Western concerns that Indigenous justice means softer justice and therefore unable to address community safety.

The ultimate goal is Indigenous self-determination over criminal justice. Decisions about criminal justice will have to include the community at large, not just the leadership. This means extensive consultations with the community membership at large. They must include parties that may be vulnerable to certain crimes, like women vis-à-vis sexual or domestic assault. It would also have to include both traditionalists and "progressives" since this can become a significant source of community division and necessitate negotiations and compromise. This analysis will focus on Canada but will be supplemented by material from other jurisdictions. The article now begins by describing the important background problem of Indigenous overincarceration.

Indigenous Overincarceration

Carol LaPrairie provides these Canadian statistics of Indigenous overincarceration:

There is virtually no over-representation of Aboriginal people in provincial correctional institutions in Prince Edward Island and Quebec, but over-representation in Nova Scotia and New Brunswick is 1/5 to two times higher than would be expected given the size of their respective provincial Aboriginal populations. In B.C., this disproportionality is 5 times, in Alberta 9 times, in Saskatchewan 10 times, in Ontario 9 times, and, in Manitoba, it is 7 times higher than expected. . . . An examination of change over time reveals that Aboriginal over-representation within the Federal prison population has grown from 11% in 1991/92 to 17% in 1998/99, and the increase has occurred primarily in the Prairie provinces.¹

Larissa Behrendt relates that Indigenous peoples comprise two percent of Australia's population, yet comprise 28.6 percent of its prison population.²

Incarceration is an important issue for Indigenous peoples because it is frequently asserted that deterrence through imprisonment is misguided. Criminologists frequently argue that there is no demonstrable correlation between increasing imprisonment terms and reducing crime rates.³ Justice E. D. Bayda says that prison offers little deterrence for the impoverished lacking in legitimate opportunities.⁴ Imprisonment often makes offenders worse by increasing their propensity for crime. David Cayley argues that placing a convict among other convicts obliges the convict to harden...