Native American Justice: Pre-Contact

                         

     Hello everyone!  You may have noticed that you are in the immigrants and refugees section, and I realize some of you may be thinking, 'Hey, she's not talking about immigration at all.'  Well, that's because in the pre-contact period, when it was only Native Americans on this continent, the concept of immigration didn't really exist.  As a result, I will be talking about Native American justice in the pre-contact period, in a Native American point of view, before the settlers came and imposed their own sets of laws that we still know today. I chose this topic as I have a degree in criminal justice and realized that when obtaining my degree, there wasn't too much emphasis on Native American laws, even though they are extremely important.  To make things a bit easier for you, I will occasionally point out differences between Native American and Euro-Canadian justice, since I realize many of you may not be familiar Euro-Canadian justice to begin with.

     To begin, I think it is important to note that just as we have different laws in different parts of the country, and even continent, so did Native Americans.  Different tribes and cultures created their own laws which were sacred to them (Bell & Napoleon, 2008, p.5).  For example, the Ojibwe people and Iroquois people had distinct laws, with distinct meanings from one another.  They also had different ways of carrying out these laws. Take a look at the Blackfoot tribe, they used elders almost like we use judges today, to arbitrate matters and interpret laws (Bell and Napoleon, 2008, p.261).
    When it came to dealing with deviant behaviour, many tribes actually had very well-developed methods in order to work through it as a community. According to Frideres and Gadacz (2001), the Iroquois probably had the most refined rules, and this was noted at the time of contact with the Europeans (p. 126). They even had their own constitution which was recorded on wampum belts (p. 126).  As I mentioned before, most tribes had different laws; they also had different definitions of deviance and thus, different penalties when individuals violated social norms. Children learned at an early age what the norms were and each breach of law was dealt with appropriately (p. 126).

     There is still a debate whether or not Native Americans also used shaming, and retributive styles of justice along with the more notable healing and restorative aspects. Almost all of the information I found did not include retributive styles. Instead, there was a great sense of reconciliation and healing called for when a crime was committed, since it was seen as a lack of spiritual balance within the person (Proulx, 2003, p.25).  Most of the themes I came across were more more restorative-based, and according to Frideres and Gadacz (2001), included the following:

1. The offended party usually administered the law. This could include the family or the clan.
2. The community was involved only when public peace was threatened, and personal offences were seen as infractions towards the victim and his or her family.
3. Laws were made through tradition and consensus by the community. (This can be compared to how we have the rule of precedent in our current laws.)
4. The laws were tied to the natural environment and only a few actions were universally condemned.
5. The Native American codes of behaviour were based on traditional religions.
6. For peacekeeping purposes, arbitration and ostracism were the norm.
7. There was no legal protection for private property, as the basis for society was communal.

     Just so you can see the differences, our laws today stress the importance of punishment and force as a means of social control and our laws are more individuals-based and strive to protect private property.  Instead of the community agreeing on laws, elected representatives formulate the codes by which we live by.  When someone commits an offence, the offence is not seen as an act against the community, but an act against the state/monarch.  For example, when looking at criminal cases it is referred to as R. v. Oakes, with 'R' referring to the Queen.  Finally, Protestant and Christianity are the main foundations of our laws, and are administered by state representatives though social institutions.  

     In conclusion, from the information I have provided, it appears as though Native Americans were more than competent in determining their own forms of justice, right? Then why, when Native Americans make up under 3 percent of Canada's population, do they represent nearly 40 percent of our prison population (Frideres and Gadacz, 2001, p. 125)?  Well, unfortunately, there are too many reasons to name. One of the main reasons is that Native American laws are seen as inferior when compared to our Euro-Canadian laws (Borrows, 2002, p. 7). When Native Americans lose court cases, it further perpetuates the idea that the Crown is superior, and that Western society is rejecting their beliefs and customs (Ochman, 2008).  Also, the Canadian courts are able to impose Native American laws, but it is very rare to see this happen. Just take a moment to reflect on how many cases you see on the television or the newspaper that actually take into account Native American forms of justice. That being said, there has been a resurgence of restorative justice which utilize sentencing and healing circles as part of the justice process. The focus is not to punish, but to address the harm created by the offender. The courts realize there is an over representation of Native Americans in the justice system and judges must now consider the unique circumstances of Native Americans, systemic background factors that may have contributed to their behaviour, and specific sentencing procedures and sanctions. It's a start, but we still have a long way to go.

J

 ~Shannon
                                                          References

Bell, C., & Napoleon, V. (Eds.). (2008). First Nations cultural heritage and law: Case studies, voices, and perspectives. Vancouver, BC: UBC Press.

Borrows, J. (2002). Recovering Canada: The resurgence of Indigenous law. Toronto, ON: University of Toronto Press.

Frideres, J. S., & Gadacz, R. R., (2001). Aboriginal peoples in Canada: Contemporary conflicts (6th ed.). Toronto, ON: Prentice Hall.

Ochman, P. (2008). Recent Developments in Canadian Aboriginal Law: Overview of Case Law and of Certain Principles of Aboriginal Law. International Community Law Review, 10(3), 319-350. doi:10.1163/187197308X346832

Proulx, C. (2003). Reclaiming Aboriginal justice, identity, and community. Saskatoon, SK: Purich Publishing, Ltd.