Transformative justice is happening in Indigenous courts
It was 1991 when the groundbreaking Aboriginal Justice Inquiry (AJI) report was released in Manitoba. Following two years of interviews with a huge range of people—remote communities in the North, legal officials of courtrooms in Winnipeg, family members of people who had died due to violence, incarcerated people—Justices Murray Sinclair and Alvin Hamilton rendered a scathing and thorough indictment of the ways that the legal system fails Indigenous Peoples, and, combined with racism, structural injustices, and the legacy of colonization, leads to their mass incarceration. Among the recommendations of the AJI was a call for the creation of an “Aboriginal Justice System“ that would respond to harm and wrongdoing through culturally appropriate, transformative methods.
I remember exactly where I was standing when the news of the AJI report broke nationally. I was in the kitchen of a home I shared with 10 other people in Toronto. I didn’t know anything about transformative justice at the time. But as I listened to the news reports and, more specifically, the reactions that the report was getting across the country, I was struck by something profound.
As people learned about transformative responses, there was a general mood of “that sounds really good“ and also, sadly, from many non-Indigenous Canadians, a concurrent attitude of “that sounds so good… they shouldn’t be allowed to have it, because I want it too.“ That showed a lack of understanding of the human rights of Indigenous Peoples (including what would later be affirmed in the United Nations Declaration on the Rights of Indigenous Peoples Article 5 as the “right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions“). But what was clearly underlying the comments was a sense that this way of doing justice represented something profoundly important, something with potential for healing, something that represented an opportunity for transformational change.
“The two Indigenous courtrooms were far more transformative, more focused on healing.”
In our transformative justice work at Canadian Friends Service Committee (CFSC), we are always trying to imagine what can “move the needle“ nationally towards a new vision for justice-making. One path that seems particularly fruitful is to support the expansion of Indigenous-led justice-making ventures, and to help non-Indigenous people understand the importance of these initiatives.
As CFSC’s Transformative Justice Program Coordinator, then, it’s important that I understand what Indigenous-led justice-making looks like in practice. And although I can read about these initiatives and listen to Indigenous people talk about them, it’s even more helpful for me to see them in action. So, on my recent trip to give presentations in Western Canada, I took advantage of being in Alberta to stop in at the Calgary Indigenous Court, and the Siksika Restorative Justice Court. The experiences were profound, enlightening, and moving. I’m so grateful to have had these opportunities.
In Canada, virtually all courtrooms are open to the public (exceptions are made for certain cases, such as ones involving the welfare of children), so I’ve often visited courtrooms—sometimes to support people involved, sometimes to learn more about the legal system.
Despite being embedded in the mainstream legal system, the two Indigenous courtrooms that I visited were significantly different from anything I had ever witnessed before, and certainly far more transformative, that is, more focused on healing.
In both courtrooms, the day started with a smudge, and with teachings from the elders. In Siksika, one of the elders talked about the Blackfoot terms for the various roles in the courtroom. The court itself is “The Place Where We Talk.“ The community court workers are the “Helpers.“ The sheriffs are the “Guardians.“ The lawyers “The Ones Who Talk“ (there was definitely laughter in the courtroom when the elder gave this name!). Crucially, the person who is called “the offender“ in a typical courtroom, is “The One Who Made a Mistake.“ Phew… what a non-judgmental term. Because of course, we have all made mistakes. This was one way that power dynamics were mitigated in the courtroom.
Additionally, there was no raised platform for the judge to sit on, and the people involved in a case sat in a circle. Some of the trappings of the European court were still evident (like rising when the judge entered, and the robes that some court officials wore), but they were disrupted. Court workers wore beaded medallions. The judge presiding in Siksika was Karen Crowshoe, a Blackfoot woman. She spoke kindly to each of the “Ones Who Had Made Mistakes,“ asking them about what they were learning, commending them, and encouraging them. What I saw was what one of the Blackfoot elders described as “putting the Indian back into justice,“ and it was beautiful.
People brought before these courts do not have to plead guilty (as participants in Restorative Justice Diversion programs often have to do); rather they are supported to make a “Healing Plan“ for themselves, a plan that looks at the roots of where they have been struggling in their life, and that focuses on healing.
The plans that were reported about, on the days I visited, included: working with an elder, giving back to the community, a “restorative circle“ with the victim, completing school, taking courses, attending ceremony, making restitution, holding down employment, and more. The plans were comprehensive—crafted to meet individual needs and covering a long period of time. There was no pressure for a quick fix. Lawyers gave updates and reports on how their clients were progressing on their Healing Plans. And the docket paused in Calgary while one young man, who had completed his Healing Plan, was given a Blanket Ceremony.
It was powerful to sit in these courtrooms, to witness these radical changes, and to watch what we can only hope is the slow dismantling of current dysfunctional mainstream systems.
For follow up, I would encourage readers to sit in on Indigenous-led justice making. If you haven’t been to a typical court, you might want to do that first, so that you have something to compare it to. There are Indigenous courts (sometimes called Gladue Courts) in many communities across Canada. Here’s a list, to help you find one near you! https://QuakerService.ca/IndigenousCourts
Karen Ridd is CFSC’s Transformative Justice Program Coordinator.
