Document Type

Article

Publication Date

2019

Publication Information

56 Alberta Law Review 669 (2019)

Abstract

Through European colonization in North America, the time-honored rule of law, or good way of life, in Indigenous communities was displaced with external forums and processes, primarily from the British juridical traditions. In contemporary Canada, the use of external laws as a tool of colonization and the injustice experienced by Aboriginal peoples in Canadian courts has been the focus of media attention, policy papers, and legal reports for decades. The Canadian justice system is viewed by many as external and a means of subjugation for First Nation, Métis and Inuit peoples. As the Canadian government has attempted to come to terms with the long shadow cast by colonization, Indigenous peoples are consistently and increasingly calling for the ability to fully self-govern and reinstate Indigenous law and legal principles.

This article will first discuss the current issues in the Canadian judiciary for Aboriginal peoples with a focus on criminal law and child welfare practices. Tracing the response to the crisis of overincarceration of Aboriginal peoples, the Supreme Court of Canada has laid out principles on appropriate sentencing of Aboriginal offenders. Another response has been to develop specialized provincial courts for proper sentencing of Aboriginal peoples. Despite these efforts, overincarceration continues to increase. Next, the statistics on the over-removal of Aboriginal children from their homes will be discussed and the role of the Canadian judiciary.

To provide an example from the United States, Tribal Courts have been instrumental in providing culturally appropriate dispute resolution forums in Indigenous communities, particularly for domestic issues such as child welfare and for criminal conduct occurring on reservations. By comparing the growth of U.S. Tribal Courts and the beginnings of justice systems that are formally recognized for Aboriginal peoples in Canada, the article will provide insight and recommendations to address the need for Aboriginal peoples to implement their own judicial forums. Next, the efforts of First Nations through Section 107 of the Indian Act Native Justices of the Peace program will be discussed. A review of the Court of Kahan:wake and the Akwesasne Court as trailblazers for more Indigenous courts in Canada follows. The article will conclude with a recommendation for the creation of a system of Indigenous Community Courts and the necessary steps to realize Indigenous-led justice initiatives including appropriate recognition of jurisdiction and proper funding.

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