3 Decolonization and Court
Geena Holding
Title: Justice For All: Decolonizing Courts Through Indigenous Justice
Abstract
This chapter will examine the impact of colonialism on court systems and explore their potential for decolonization. Decolonization is defined as an ongoing process that requires a multidimensional approach towards developing non-hierarchical systems. Using case studies from Canada, the U.S. and Australia, the reintroduction of Indigenous courts is examined as one way to begin the decolonization process. The goal of this chapter is to provide an analysis of how effective these courts have been and where further action is needed.
Introduction
Colonization has shaped court systems around the world erase and exclude Indigenous values and justice practices. Eurocentric institutions predicated on colonial policies have reinforced systemic racism and inequalities, creating a system that impedes Indigenous access to justice. Token gestures, such as sweat lodges within prisons and cultural diversion programs for minor offences, only serve as distractions to focus attention away from a criminal justice system that forcibly imposes Eurocentric beliefs onto diverse First Nations and Indigenous communities (McGuire and Palys, 2020). Because historically embedded colonial ideologies run so deep, decolonization is the only solution to the inequalities and social problems that stem from colonization. This implies taking the power back through active resistance against ongoing colonization by embracing the resurgence of Indigenous cultures, laws, and governing systems (Palmater, 2018). The process of decolonizing colonial court systems has already begun, with the establishment of Indigenous legislative frameworks and courts.
Examining the introduction of Indigenous courts introduced in the U.S., Canada, and Australia reveals both structural differences and recurring themes. The Navajo Nation Peacemaking Courts of the U.S., the First Nations/Indigenous Courts of Canada, and the Aboriginal Courts of Australia all serve as examples of implementing Indigenous justice practices into the mainstream court system, and there has been a positive response to their implementation so far. There continue to be limitations, however, including lack of funding and recognition, narrow participation criterion, and the restrictions for these courts within colonial legal frameworks. Applying the assessment tools included in Asadullah’s (2021) decolonization tree framework indicates that, although a movement towards decolonization has begun, there is an ongoing need for fundamental systemic changes and formal recognition of Indigenous sovereignty. This paper aims to provide a comparative analysis and further recommendations for decolonizing these court systems.
Impact of Colonization
Colonization describes the permanent settler occupation of lands based on the continuing displacement of Indigenous peoples and the creation of systems and infrastructures that make the land productive from a Eurocentric capitalist perspective (Bonds and Inwood, 2016). The appropriation of these lands has denied Indigenous peoples’ access to resources and prosperity, while the creation of systems and infrastructures designed to enrich settlers and their mother nation by limiting Indigenous rights and other governance changes, expropriating their land, using them and others as colonial labour in the export of natural resources, has played a significant role in the marginalization of Indigenous populations. To this day, legal institutions rooted within colonial systems results in the overincarceration of Indigenous peoples and disproportionate rates of apprehension among Indigenous children (Blagg, 2017; Boothroyd, 2019; Cunneen, 2018; EagleWoman, 2019).
Zion (2006) notes that postcolonial state institutions are hierarchical and impersonal, based on social stratification, rooted in colonization, that excludes and marginalizes Indigenous membership. Eurocentric governance structures are based on an ideology that differs significantly from Indigenous worldviews, while the justice system deflects attention away from societal injustice and towards the criminalization of the poor (Monchalin, 2015). Legal hierarchies are dominated by associations that require graduation from approved law schools, which has led to a bench and bar being dominated by the Anglo middle-class (Zion, 2006). The growth of Indigenous and restorative justice movements has been a response to the increasing recognition that these systems serve to reinforce structural inequalities and the marginalization of minority groups (Monchalin, 2015; Zion, 2006). The impacts of colonization are embedded within a state’s social structure, from racialized policing to substantial employment, income and housing disparities (Bonds & Inwood, 2016; EagleWoman, 2019; Monchalin, 2015).
As a part of the criminal justice system, courts were also established based on colonial policies and practices. EagleWoman (2019) identifies the lack of culturally appropriate judicial forums, the failure to recognize Indigenous methods of justice, and systemic racism as key contributors to the overincarceration of Indigenous peoples. For example, judges are known to hand down the harshest sentences to Indigenous offenders when exercising their discretion (EagleWoman, 2019), and prisons around the world show an overrepresentation of Indigenous peoples (Archibald-Binge et al., 2020; Bureau of Justice Statistics, 1999; EagleWoman, 2019). The colonial impact on courts was wrought through the development of legislation and sentencing procedures that do not reflect the values and practices of Indigenous populations. Decolonization of the courts is necessary to repair the dysfunctional relationship between the justice system and Indigenous peoples.
Defining Decolonization
Decolonization involves recognizing and understanding the colonialism embedded in a State’s policies and infrastructures, challenging colonial-induced manifestations, and reclaiming Indigenous identity and lands (McGuire & Palys, 2020). It is a process that requires an overhaul of the state’s legal and political systems, and for settlers to recognize the benefits they continue to reap from the historical displacement and marginalization of Indigenous peoples. Indigenous groups have made it clear that what is most important is the recognition of their rights – to be able to legislate and govern under their own principles – is key (EagleWoman, 2019; McGuire & Palys, 2020; Palmater, 2018). Decolonization can be visualized as a tree, with growth obtained from listening to and consultation with marginalized groups all the way to building relationships into a non-hierarchical model:
Source: (Asadullah, 2021, p. 19)
A non-hierarchical model would be one that respects Indigenous law and justice practices as independent from the State legal system. Building relationships would mean addressing the inequalities between Indigenous and non-Indigenous people, taking concrete steps to remedy them, and rebuilding legal and political systems in a way that will benefit everyone.
The courts play an important role in the criminal justice system. They apply the law to the cases brought before them in order to determine an appropriate sentence or resolution. This effectively makes them an extension of the dominant legislative body, which becomes problematic when state laws have been created according to a Eurocentric perspective. Article 34 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) outlines the right of Indigenous peoples to promote, develop and maintain institutional structures based on their customs, spirituality, traditions and practices, including juridical systems. This points to the need for a self-administered court system that would allow Indigenous communities to enforce their own interpretation of the law (EagleWoman, 2019).
Decolonizing the courts would require a “radical break that is profoundly unsettling to the settler colonial state” (Boothroyd, 2019, p. 906). In other words, the Indigenous harm reduction and diversion programs favoured by courts are not to be confused with true decolonization, as they serve to reinforce the power of colonial state structures through mollification (Boothroyd, 2019; EagleWoman 2019). An essential step in decolonization is the creation and recognition of independent Indigenous courts that are able to set their own criterion for participation and sentencing procedures (Boothroyd, 2019; Cunneen, 2018; EagleWoman, 2019), which would require a complete reconceptualizing of the court system. This may sound unreasonable to those accustomed to living under one central justice system, but it is important to remember that Indigenous communities across the world had been successfully practicing their own justice methods and systems before the Eurocentric practices were inflicted upon them. Decolonization must involve a recognition and revival of these systems because Indigenous peoples have clearly been failed by colonial institutions.
In summary, decolonizing requires: 1) implementing UNDRIP recommendations; 2) nurturing Indigenous courts as legally independent systems; 3) recognizing Indigenous sovereignty and land rights as well as the impacts of colonialism in relation to them; and 4) providing the necessary supports and resources for the creation and maintenance of these systems. The result would be a court system that functions significantly differently, with Indigenous legal authority granted equal status to State authority.
Promising Decolonizing Practices
This chapter outlines a number of examples of court decolonizing practices in three countries: the United States (U.S.), Canada and Australia.
Navajo Nation Courts in the U.S.
1.7% of the U.S. population is made up of Indigenous peoples belonging to 561 federally recognized tribes, and they are incarcerated at a rate 38% higher than the national average (Jones et al., 2014; Bureau of Justice Statistics, 1999). The 1934 Indian Reorganization Act formally authorized tribal institutions of self-governance, allowing the majority of Tribal Nations in the U.S. to adopt tribal constitutions and court systems (EagleWoman, 2019). This has led to the creation of over 330 formal tribal courts within the U.S. that have jurisdiction over tribal members within their territory and on certain activities of others (EagleWoman, 2019). Outside these boundaries, however, jurisdiction is limited by federal legislation and U.S. Supreme Court decisions, and there continue to be jurisdictional disputes over prosecution (EagleWoman, 2019; Jones et al., 2014). The U.S. Indigenous law movement has yet to become nationally organized, and the 1993 Indian Tribal Justice Act, which recognizes traditional Indigenous law, was only passed at the suggestion of the Navajo Nation’s courts (Zion, 2006). The Navajo Nation have remained at the forefront of the U.S. Indigenous justice movement since the creation of the Navajo Court of Indian Offenses in 1892.
In 1982, the Navajo Nation established the Peacemaking Court, and eventually removed the word “court” in recognition of the return to the community-based roots of peacemaking (Judicial Branch of the Navajo Nation, U.S., 2021). The courts were designed to value the differences between Anglo law as a common law system built on authority, rank, and obedience, while Navajo common law is built on relationships, traditions, emotions, and personal engagement (Yazzie, 2005). Yazzie (2005) explains that the traditional Navajo response to crime is to talk the problem out respectfully, and that appointed Peacemakers take an advisory role while the involved parties themselves must make the decisions regarding dispute resolution and sentencing. Peacemakers are Elders, or Navajo wise persons, and are responsible for guiding participants through the steps of prayer, expressing feelings, the lecture, discussions, reconciliation, and consensus, while community and family members offer support throughout the process (Judicial Branch of the Navajo Nation, 2021; Yazzie, 2005). This differs significantly from Eurocentric courts, which often use formal representatives for the involved parties and assign the decision-making process to a judge or jury.
Peacemaking has important differences to mainstream restorative justice programs such as victim-offender mediation. Whereas mediation is seen as a one-time service based on individuality and material achievement, Peacemaking is viewed as a way of life explicitly grounded in community culture, values, and spirituality (Nielsen, 1999; Yazzie, 2005). According to Zion (2006), although the Navajo Nation courts are following a parallel path to restorative justice movements, these courts are in the unique position of trying to revive Navajo culture while facing attacks on their jurisdiction and competence. Although Peacemaking strategies have allowed the practice of Navajo common law and the return of conflict resolution to these communities, an important step in recognizing Indigenous sovereignty, they continue to be threatened by a perceived lack of legitimacy (Nielsen, 1999; Zion, 2006). There are concerns that mainstream U.S. society could push for the modification and standardization of Peacemaking procedures in accordance with the existing status quo, which would undo the progress made in respecting the independent practice of Indigenous justice (Nielsen, 1999).
Another issue that threatens Peacemaking is a lack of resources and formal recognition of Indigenous legal authority. Funding is scarce for technical support, training, and educational materials. As well, few Peacemakers are able to rely on Peacemaking as a source of income, and a lack of community resources makes it difficult to address relevant social problems faced by many Indigenous community members (Nielsen, 1999). Traditional justice systems are an essential part of sovereignty and perhaps this is why there has been a reluctance to develop legislation that explicitly confirms Indigenous authority in these areas. EagleWoman (2019) describes U.S. federal Indian law as a pendulum that swings from the support of tribal sovereignty to the destruction of tribal sovereignty. On the one hand, Navajo Nation courts have been granted the authority to require judges to be fluent in the Navajo language and lawyers to pass the Navajo Nation bar exam in order to be admitted for court appearances (EagleWoman, 2019). On the other, the U.S. Supreme Court has issued several decisions curtailing tribal court jurisdiction where non-Indigenous people are involved, asserting their authority as ultimate (EagleWoman, 2019).
Navajo Peacemaking in the United States offers an idea of what returning to the roots of Indigenous justice might look like. But it is important to remain vigilant in the face of government rhetoric that aims to distract while continuing to inflict colonial harm (McGuire & Palys, 2020). There continues to be significant overlap between tribal and federal jurisdiction, and tribal courts must share concurrent jurisdiction with federal authorities over serious or felony offenses, regardless of the tribal status of those involved (EagleWoman, 2019). The decisions and restrictions imposed by state courts, as well as the lack of funding allocated to tribal courts, indicate that the Eurocentric legal system remains dominant in the U.S. As Yazzie (2005) so succinctly states, “governments are afraid of what is underneath the water” (p. 132).
In summary, Navajo Peacemaking in the United States has proven that traditional Indigenous methods can be used within a modern court system, and that they work (Yazzie, 2005). The establishment of Navajo Nation courts is the first step in unravelling centuries of colonization and repairing some of the damage that has been inflicted under settler rule. If the ultimate goal is true Indigenous sovereignty, then these courts are a necessary and valuable part of this journey. However, there remains a need for recognition of Indigenous authority, jurisdictional clarity and appropriate funding and resources for these courts to operate to their fullest extent.
First Nations Courts in Canada
Indigenous Peoples make up around 4.9% of the total Canadian population, in over 630 First Nation communities representing more than 50 different Nations and Indigenous languages (Government of Canada, 2016). Approximately 26% of federal correctional admissions and 28% of provincial and territorial custody admissions consist of Indigenous peoples (EagleWoman, 2019). The diversity among the cultural backgrounds, beliefs and practices of different First Nations is of great significance when it comes to establishing a justice system that effectively represents and respects all Canadians. However, Canada has typically quashed Indigenous rights to sovereignty, positioned Indigenous belief systems as inferior, and failed to make more than token gestures towards Indigenous justice (McGuire & Palys, 2020). Recent years have shown a growing demand for the respect of Indigenous rights and justice practices, but progress has been limited.
Canada has demonstrated a more centralized approach to Indigenous justice than the U.S. and began to adopt legislative changes in recognition of the overrepresentation of Indigenous peoples within the criminal justice system at the end of the 20th century. In 1999, the Supreme Court of Canada (SCC) was tasked with assessing the case of R. v. Gladue, and ruled for the addition of Section 718.2(e) of the Canadian Criminal Code:
“all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” (CCC, [1999], 2021)
This section indicates that Indigenous offenders must be sentenced in a way that emphasizes restorative justice and the unique background factors faced by Indigenous people (Ralston, 2020). It marked a shift in the criminal justice system towards recognizing Indigenous circumstances and accommodating Indigenous practices. Gladue factors must be considered for all self-identified Indigenous persons, and Gladue pre-sentencing reports were developed as a way to identify the circumstances and their influence on involvement with the criminal justice system for each individual offender, usually after a number of extensive meetings (Department of Justice, 2018).
The lack of culturally appropriate sentencing processes and alternatives soon became clear with the implementation of Gladue reports. This led to the creation of First Nations Courts (FNCs) and programs that are designed by Indigenous peoples to provide a culturally appropriate alternative form of dispute resolution. Gladue courts have been set up across Canada to follow the colonial criminal justice model while incorporating Indigenous values and principles into the court processes. According to the Department of Justice (2018), these specialized courts are part of and have the same powers as provincial courts but can allow for the diversion of Indigenous offenders who plead guilty into community-based alternative sentencing processes. McGuire and Palys (2020) describe such systems as “parallel systems” serving as a “pan-indigenization and sanitization of Indigenous justice – essentially rearranging things to best suit colonial interests” (p. 66). Indeed, Gladue courts have been criticized for providing standardized plans of care and simply referring offenders to Indigenous programming that does not always reflect the diversity of First Nation communities (Department of Justice, 2018). The fact that non-compliance with a plan of care can result in incarceration shows the limitations of FNCs operating within a dominant Eurocentric justice system. It is worth noting that an Indigenous person has yet to be appointed to the Supreme Court of Canada, which remains the most powerful sentencing body in the country (Monchalin, 2015; White, 2021).
Other First Nations Courts include Elders and spirituality to develop Indigenous healing plans that address complex social justice issues stemming from the intergenerational effects of colonization (Johnson, 2014). The Tsuu T’ina Peacemakers Court established in 2000, the first of its kind in Canada, and integrated the Alberta Provincial Court with the Tsuu T’ina Nation community and justice traditions (Johnson, 2014). The court used a judge who was a member of the First Nations Bar, court clerks were hired directly from the community, and two Elders served as Peacemakers and community witnesses to the proceedings (Johnson, 2014). The leadership and direction of Indigenous peoples within the court was a major improvement on the limitations of previous diversionary programs, but it is still a far cry from true sovereignty. “Indigenization” of the court system, or the hiring and promotion of Indigenous justice professionals, allows it to appear more culturally sensitive while failing to challenge the status quo or implement real system-wide change (McGuire & Palys, 2020, pp. 62-63). Although the Tsuu T’ina Peacemakers Court allows for valuable Peacemaking practices, it is still tied to the Alberta Provincial Court and falls within the mainframe of the State criminal justice system. Another recurring issue with FNCs and programs is a lack of funding and resources, which are not allocated at a comparable rate to the rest of the criminal justice system (Boothroyd, 2019; EagleWoman, 2019).
A more recent example of FNCs, the Calgary Indigenous Court (CIC), was established in 2019 to apply Indigenous restorative justice principles, such as Peacemaking, to bail and sentencing hearings for Indigenous offenders (Provincial Court of Alberta, n.d.). The assigning of Indigenous prosecutors and legal counsel allows for a more open and trusting relationship with the accused people (Narine, 2020), while the use of healing plans, traditional rituals and cultural supports is more in line with Indigenous values (Elizabeth Fry Society, 2019; Grant, 2019). What makes this court particularly unique is the Soksipaitapiisin Case Management Table (CMT), which was developed through consultations with Elders and Knowledge Keepers to provide supports for Indigenous offenders with mental health, substance abuse, or other complex issues (Dalshoug, 2021). The CMT allows offenders to meet with an Elder and Knowledge Keepers who provide cultural guidance, individualized support and teachings, and access to resources such as counselling and addiction treatment services (Dalshoug, 2021). In its first case, the Calgary Indigenous Court granted bail to an offender who may not have been released without the supports put in place, which included arranging for a sober group home and a plan with a treatment centre for addictions (Grant, 2019).
The Calgary Indigenous Court has built on some of the key concepts of previous courts to provide a multidimensional approach. This has very promising implications for addressing intergenerational trauma as a result of colonization because the court is guided by Indigenous philosophy and provided with the necessary resources for treating some of the root causes behind involvement with the justice system. The use of the CMT allows for Healing Plans tailored to each individual offender and their needs, while the use of traditional rituals such as blanket ceremonies are key for reconnecting offenders to their cultural identities (Dalshoug, 2021; Provincial Court of Alberta, n.d.). However, these court systems still must operate within the dominant mainstream Canadian legal system, which limits their ability to further develop Indigenous justice principles or even follow them to their fullest extent.
In summary, FNCs have gradually improved and become a bigger part of the mainstream court system in Canada. These courts have become more meaningful than peripheral diversionary programs, although there are ongoing issues with insecure funding and State sovereignty. The Calgary Indigenous Court is perhaps the closest Canada has come to decolonizing its court system: there is a recognition of Indigenous authority, and traditional justice practices are followed alongside needed supports and the guidance of Elders. If Indigenous peoples were granted full power over sentencing procedures and deciding who is eligible for participation, and receive adequate resources to operate these courts independently from provincial and federal court systems, a decolonized court system could be attainable.
Aboriginal Courts in Australia
Approximately 2.5% of the Australian population identify as Indigenous, including Aboriginal and Torres Strait Islander communities that live across urban and remote areas, while Indigenous people constitute around 28% of the Australian prison population (Archibald-Binge et al., 2020; Blagg, 2017). Australia takes a more centralized approach to Indigenous justice policies than the U.S. with state-level jurisdiction (Harris, 2004; Jones et al., 2014). This approach has been characterized by the implementation of restorative justice programs that claim to be grounded in Indigenous practice and a diversionary solution to the overincarceration of Indigenous peoples. The reality is these programs, however, is they only accept a limited degree of cultural difference while remaining within the confines of Eurocentric conceptions of justice, and effectively commodify Indigenous worldviews (Blagg, 2017; Tauri, 2017).
In Australia, the 1991 Royal Commission into Aboriginal Deaths in Custody (RCIADC) provided recommendations including hiring more Indigenous court staff and interpreters and providing cross-cultural training for court personnel (Harris, 2004). This ultimately led to the creation of Aboriginal Courts, beginning with the Nunga Courts established in South Australia in 1999. The Nunga Courts were inspired by the Senior Magistrate’s experiences attending circuit sittings in the Pitjantjara Lands, and they allowed for increased involvement of community members, family, and Elders in court proceedings and sentencing (Courts Administration Authority of South Australia, 2012). The Magistrate Courts of Queensland followed suit with the creation of Murri Courts, while New South Wales established a Sentencing Circle program based on the Canadian model in 2001. These courts lacked defined jurisdiction and procedures and had to operate within the Magistrates’ Court system, which is overseen by a Magistrate with the assistance of Indigenous persons (Harris, 2004). The Sentencing Circle program is also problematic in the sense that it is based on the practices of Canadian Indigenous peoples rather than those who reside in Australia (Tauri, 2017).
Koori Courts were introduced in Victoria as a more comprehensive court system: The Koori Division of the Magistrate’s Court was established, and new legislation defined the jurisdiction and procedure of these courts (Harris, 2004). Under Koori Courts, participants including the offender, magistrates, family, and Elders sit around a table to take part in an informal and culturally appropriate sentencing conversation (Magistrates’ Court of Victoria, 2020). Empowering Indigenous communities to participate in decision making and have an influence over the structure of court proceedings is an important part of decolonization. They are, however, still part of a hybridized system that can only operate to the extent permitted by non-Indigenous courts (Harris, 2004). Mainstream courts continue to show an inadequate response to Indigenous beliefs and values and there is an ongoing lack of non-custodial sentencing alternatives, services, and programs (Cunneen, 2018). The implementation of Aboriginal Courts has not slowed the rate of Indigenous imprisonment and have remained peripheral in the criminal justice system, which arguably is preventing the introduction of significant change (Cunneen, 2018; Harris, 2004).
Nevertheless, Aboriginal Courts have had a positive impact by providing Indigenous offenders with more culturally appropriate legal services and proceedings. Koori Court programs have been shown to reduce reoffending rates, as well as the average number of days spent in youth detention, and participating Elders have reported success in reaching those with little family and community support (Archibald-Binge et al., 2020; Wahlquist, 2018). The Koori Court model has been less intimidating and more approachable for Indigenous offenders, making it easier for them to speak about issues that led to their offending, while a recent Supreme Court decision has confirmed that Aboriginal cultural rights must be considered in certain court processes (Allam, 2018; Wahlquist, 2018). The positive implications of these courts emphasize the need for consistent funding and an increase in the availability of sentencing alternatives.
In summary, the development of Aboriginal Courts in Australia has reflected a growing recognition of Indigenous rights and the issue of overincarceration. Koori Courts have been among the most promising of these ventures and have made some significant improvements to the Magistrates’ Court system. Aboriginal Courts are still under the authority of a colonial court system, however, and funding remains inadequate or unstable or insecure in some areas. For Australia to successfully address the overrepresentation of Indigenous peoples within its criminal justice system, further expansion of these programs and a larger investment of resources may be required.
Discussion and Comparative Analysis from a Decolonizing Lens
This section will offer a comparative analysis of the U.S. Navajo Nation Courts, Canadian First Nations Courts, and Australian Aboriginal Courts from Asadullah’s decolonizing tree perspective (2021), which has assessment tools for each step of decolonization.
These court systems show different responses in each of the respective countries. The U.S. system remains relatively decentralized, allowing Tribal Nations to form their own constitutions and court systems (EagleWoman, 2019; Zion, 2006). This can be positive in terms of recognizing the diversity among Indigenous communities and the importance of respecting the sovereignty of each Nation. But it can also be problematic when there is a lack of clarity regarding jurisdiction, legislative authority, and funding allocations. In contrast, Canada’s justice system has remained highly centralized, with FNCs formed within provincial/territorial and federal court systems (EagleWoman, 2019; Johnson, 2014). This has allowed for these courts to access certain supports, such as treatment programs utilized by the Calgary Indigenous Court (Dalshoug, 2021; Provincial Court of Alberta, n.d.), and to act as diversionary programs for Indigenous offenders caught up in the mainstream court system. However, they are constricted within Eurocentric systems that do not necessarily reflect Indigenous values, and neither funding nor supports are guaranteed as long as they remain a minority system. Australian courts also follow a more centralized approach, and Aboriginal Courts are beginning to show an acceptance of Indigenous justice practices (Cunneen, 2018; Harris, 2004). These programs are limited, however, and Australia has yet to establish a comprehensive Indigenous court system that meets the needs of Indigenous offenders.
Asadullah (2021) fathoms decolonization as a tree structure, and this is one way of determining the progress that efforts towards decolonization have made. The “roots” of decolonization are listening and consultation with Indigenous groups using a trauma-informed approach (Asadullah, 2021). The reason for the development of many Indigenous courts was research indicating the overrepresentation of the Indigenous Peoples in mainstream criminal justice systems. This appears to have led to consultations with Indigenous groups and community leaders in many cases: the Navajo Nation has had an influential role regarding legislation in the U.S. (Zion, 2006), Indigenous peoples designed the FNCs adopted by the Canadian court system (Johnson, 2014), and the very first Australian Aboriginal courts were informed by the Magistrate’s consultations with Indigenous communities (Harris, 2004; Magistrates’ Court of Victoria, 2020). There also appears to be a growing recognition of the harm caused by colonial policies embedded in the mainstream criminal justice systems, and these now need to take this into account (Ralston, 2020; EagleWoman, 2019; Cunneen, 2018). The roots of decolonization are beginning to grow as there is more awareness around the impacts of colonization and the problems faced by Indigenous groups. But, as many Indigenous groups are calling for sovereignty (EagleWoman, 2019; McGuire & Palys, 2020; Palmater, 2018; Tauri, 2017), such consultations must continue until a justice system in line with this vision is developed.
The next part of Asadullah’s decolonization tree is the trunk, consisting of relationship building that allows for the development of a non-hierarchical model (2021). This is where significant limitations begin to appear: although governments often portray the development of Indigenous courts as a partnership, the state almost always takes a dominant authoritative role. A true partnership requires equality and respect for each other’s values, and this has yet to be fully demonstrated. The case study examples have shown recurring problems around a lack of funding, resources, and legislation to assert and make irrevocable the autonomy of Indigenous courts from the State justice system (Boothroyd, 2019; Cunneen, 2018; EagleWoman, 2019; Harris, 2004; Yazzie, 2005). Without the trunk, the branches and fruit of the tree – which constitute learning and sharing – are restricted (Asadullah, 2021). It is difficult to learn from Indigenous court systems and share their knowledge and practices unless they are granted the appropriate space and conditions in which to operate.
Table 1.1 summarizes the comparative analysis of the Navajo Nation Courts, FNCs, and Aboriginal Courts (Courts Administration Authority of South Australia, 2012; Department of Justice, 2020; EagleWoman, 2019; Farrenkopf & Bryan, 2013; Harris, 2004; Judicial Branch of the Navajo Nation, 2021; Provincial Court of Alberta, n.d.; Zion, 2006):
Table 1.1 Comparative Analysis of Different Indigenous Courts in Australia, Canada and the U.S.
| Court
System |
Landmark Legislation | Systemic Structure | Funding Sources | Consultation Groups |
| Navajo Nation Courts | Indian Reorganization Act (1934); Indian Tribal Justice Act (1993) | Decentralized: independent from federal agencies; territorial jurisdiction | Federal: Bureau of Justice Assistance; Office of Justice Programs; U.S. Department of Justice | Navajo Nation |
| First Nation Courts | Criminal Code Section 718.2(e) (1996); R. v. Gladue (1999) | Centralized: branch of provincial/territorial systems; Crown-delegated jurisdiction | Federal: Indigenous Justice Program; provincial/territorial: government | First Nations; Elders; community leaders |
| Aboriginal Courts | Aboriginal Communities Act (1979); Royal Commission into Aboriginal Deaths in Custody (1991) | Centralized: branch of Magistrates’ Court systems; Crown-delegated jurisdiction | Federal: Department of Justice | Indigenous communities; Aboriginal Legal Rights Movement |
Source: The Author.
Ultimately, the decentralized approach utilized by the U.S. has allowed for greater diversity among tribal courts that are able to operate independently (EagleWoman, 2019). Considering the major role of sovereignty in decolonization, Canadian and Australian court systems may benefit from following a similar model. Issues with funding, jurisdiction, and recognition remain in each of these examples, and emphasize the need for further consultation with Indigenous groups as well as the development of a non-hierarchical court system. The roots of decolonization have been established, but there is much to be addressed if they are to continue growing and flourish.
Conclusion
The courts are an essential part of the colonial criminal justice system. Colonization influenced the wellbeing of Indigenous groups across the world by creating and maintaining State institutions built on their exclusion and marginalization. Court systems maintain the status-quo power of these mainstream institutions and continue to overincarcerate Indigenous peoples at alarming rates. Decolonizing the courts means redistributing legislative and judicial power to Indigenous peoples so they may function as equals in their society. It is more than creating diversionary programs or hiring more Indigenous bodies to increase representation (McGuire & Palys, 2020). Using the U.S., Canada and Australia as case studies reveals that many of the courts being developed show promising signs of addressing the harmful effects of colonial policies but have yet to reach decolonization.
The Navajo Nation courts have shown how Indigenous justice can work within the U.S. criminal justice system through a decentralized approach that allows for the development and maintenance of independent tribal courts. FNCs in Canada also show progress in implementing Indigenous beliefs, values, and practices as part of a centralized system, usually operating as a branch of provincial or territorial court systems. Finally, Aboriginal Courts in Australia reflect a movement towards recognizing Indigenous justice systems under the Magistrates’ Court system. These courts have shown positive results despite jurisdictional and funding limitations (Archibald-Binge, et al.; Grant, 2019; Narine, 2020; Wahlquist, 2018). Nevertheless, true decolonization will require the implementation of these programs alongside a radical reformulation of how the dominant criminal justice system works and how funding is distributed. As McGuire and Palys (2020) have stated, “Our colonizer’s justice is inadequate and we must challenge our internalized colonial thoughts by rejecting its imposition” (p. 77). For courts to meaningfully represent Indigenous values, they must be freed from the bounds of a colonial justice system that was built to repress them.
Discussion Questions
- After reviewing the case studies in this chapter, do you believe Indigenous courts would operate more effectively as part of a centralized or decentralized court system?
- There is ongoing criticism of current decolonization efforts for failing to address root causes and serving as a distraction from real change. Are Indigenous courts another example of tokenism, or do they provide an effective alternative to colonial courts? What more can be done to establish these courts as a channel for decolonization?
- Funding and resource distribution continue to be significant barriers to the creation and operation of Indigenous courts. What can governments and legal bodies do to address this problem? From where should funding for these courts come?
Recommended Activities
- Stay updated on the implementation of Indigenous courts and legislation through the United Nations Decolonization website at https://www.un.org/dppa/decolonization/en and the Department of Economic and Social Affairs at https://www.un.org/development/desa/indigenouspeoples/.
- Contact your local government representative to express an interest in the development of decolonization initiatives in your area and add your support to Indigenous-led petitions at Change.org and Amnesty International.
Recommended Readings
Woo, G. L. X. (2011). Ghost Dancing with Colonialism: Decolonization and Indigenous Rights at the Supreme Court of Canada. University of British Columbia Press.
McCaslin, W. D. (2005). Justice as Healing: Indigenous Ways: Writings on Community Peacemaking and Restorative Justice from the Native Law Centre. Native Law Centre.
Miller, B. G. (2011). Oral History on Trial: Recognizing Aboriginal Narratives in the Courts. University of British Columbia Press.
References
Allam, L. (2018). Denial of Indigenous man’s request to be sentenced by Koori court found to be unlawful. The Guardian. https://www.theguardian.com/australia-news/2018/sep/17/denial-of-indigenous-mans-request-to-be-sentenced-by-koori-court-found-to-be-unlawful
Archibald-Binge, E., Gladstone, N., & Wyman, R. (2020). Aboriginal people twice as likely to get a jail sentence, data shows. The Sydney Morning Herald. https://www.smh.com.au/national/nsw/aboriginal-people-twice-as-likely-to-get-a-jail-sentence-data-shows-20200812-p55kwj.html
Asadullah, M. (2021). Decolonization and Restorative Justice: A Proposed Theoretical Framework. Journal of Decolonization of Criminology and Justice, 3(1), 27-62.
Blagg, H. (2017). Doing restorative justice ‘otherwise’: Decolonising practices in the global south. In I. Aertsen & B. Pali (Eds) Critical Restorative Justice. Oxon: Hart.
Bonds, A., & Inwood, J. (2016). Beyond white privilege. Progress in Human Geography, 40(6), 715-733.
Boothroyd, G. (2019). Urban Indigenous Courts: Possibilities for Increasing Community Control Over Justice. Alberta Law Review, 56(3), 903.
Bureau of Justice Statistics. (1999). American Indians and Crime. U.S. Department of Justice. https://www.bjs.gov/content/pub/pdf/aic.pdf
Courts Administration Authority of South Australia. (2012). Aboriginal Sentencing Courts – Nunga Courts. State of South Australia. http://www.courts.sa.gov.au/OurCourts/MagistratesCourt/Pages/Aboriginal-Sentencing-Courts-and-Conferences.aspx
Cunneen, C. (2018). Sentencing, punishment and Indigenous peoples in Australia. Journal of Global Indigeneity, 3(1), 4.
Dalshoug, R. (2021, February 22). Soksipaitapiisin (The Good Life): Indigenous Justice Program & Community Case Management Table [Webinar]. Regina, Saskatchewan: Department of Justice Studies, University of Regina.
Department of Justice, Canada. (2018). Spotlight on Gladue: Challenges, experiences, and possibilities in Canada’s justice system. Research Statistics Division. Government of Canada. https://www-deslibris-ca.libproxy.uregina.ca/ID/10095261.
Department of Justice, Canada. (2020). Indigenous Justice Program. Government of Canada. https://www.justice.gc.ca/eng/fund-fina/acf-fca/ajs-sja/index.html
EagleWoman, A. (2019). Envisioning Indigenous Community Courts to Realize Justice in Canada for First Nations. Alberta Law Review, 56(3).
Elizabeth Fry Society. (2019). Welcoming the Calgary Indigenous Court (CIC). https://elizabethfrycalgary.ca/2019/12/02/welcoming-the-calgary-indigenous-court-cic/.
Farrenkopf, T. M., & Bryan, C. (2013). An Overview of the Bureau of Justice Assistance’s Tribal Civil and Criminal Legal Assistance Program and Resources. National American Indian Court Judges Association. https://bja.ojp.gov/sites/g/files/xyckuh186/files/Publications/TCCLA_Overview.pdf
Government of Canada. (2016). Indigenous peoples and communities. Crown-Indigenous Relations and Northern Affairs Canada. https://www.rcaanc-cirnac.gc.ca/eng/1100100013785/1529102490303.
Grant, M. (2019). ‘Extensive positive change’ underway with Calgary Indigenous Court, says lawyer. CBC News. https://www.cbc.ca/news/canada/calgary/calgary-indigenous-court-opening-ceremony-1.5270379
Harris, M. (2004). From Australian Courts to Aboriginal Courts in Australia-Bridging the Gap? Current Issues in Criminal Justice, 16(1), 26-41.
Johnson, S. (2014). Developing First Nations Courts in Canada: Elders as foundational to Indigenous therapeutic jurisprudence, Journal of Indigenous Social Development, 3(2), 1-14.
Jones, N. A., Ruddell, R., Nestor, R., Quinn, K., & Phillips, B. (2014). International Aboriginal policing models. In First Nations Policing: A Review of the Literature. Collaborative Centre for Justice and Safety and University of Regina.
Judicial Branch of the Navajo Nation. (2021). Courts & Peacemaking in the Navajo Nation: A public fuide. http://www.courts.navajo-nsn.gov/Index.htm.
Magistrates’ Court of Victoria. (2020). Koori Court. Court Services Victoria. https://www.mcv.vic.gov.au/about/koori-court
McGuire, M., & Palys, T. (2020). Toward sovereign Indigenous justice: On Removing the Colonial Straightjacket. Decolonization of Criminology and Justice, 2(1), 59-82.
Monchalin, L. (2015). Euro-Canadian Justice Systems and Traditional Indigenous Justice Systems. In The Colonial Problem: An Indigenous perspective on crime and injustice in Canada (pp. 258-286). University of Toronto Press.
Narine, S. (2020). Alberta needs more Indigenous-focused justice models, like Siksika Legal Aid and Calgary Indigenous Court, says lawyer. The Globe and Mail. https://www.theglobeandmail.com/canada/alberta/article-siksika-legal-aid-calgary-indigenous-court-models-should-be-expanded/.
Nielsen, M. O. (1999). Navajo Nation Courts, Peacemaking and Restorative Justice Issues. Journal of Legal Pluralism and Unofficial Law, 31(44), 105-126.
Palmater, P. (2018). Decolonization is taking back our power. In P. McFarlane & B. Schabus (Eds.). Whose land is it anyway? A manual for decolonization (pp. 73-78). Vancouver, BC: Federation of Post Secondary Educators.
Provincial Court of Alberta. (n.d.). Calgary Indigenous Court. Alberta Courts. https://albertacourts.ca/pc/areas-of-law/criminal/calgary-indigenous-court.
Ralston, B. (2020). Gladue Awareness Project: Final Report. Indigenous Law Centre.
Tauri, J. (2017). Indigenous peoples and the globalization of restorative justice. Social Justice, 43(3), 46-67.
UNDRIP. (2007). United Nations declaration on the rights of Indigenous peoples. https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf
Wahlquist, C. (2018). Indigenous elders urge expanded Koori courts to help cut juvenile detention time. The Guardian. https://www.theguardian.com/australia-news/2018/may/07/indigenous-elders-urge-expanded-koori-courts-after-juvenile-detention-time-cut
White, D. (2021, March 8). B.C. First Nations Justice Strategy [Webinar]. Department of Justice Studies, University of Regina.
Yazzie, C. J. R. (2005). Healing as Justice: The Navajo Response to Crime. In W.D.
McCaslin (Ed.), Justice as Healing: Indigenous Ways (1st ed., pp. 121-133). Native Law Centre.
Zion, J. W. (2006). Justice as phoenix: traditional Indigenous law, restorative justice, and the collapse of the state. In J. I. Ross, & L. A. Gould, Native Americans and the criminal justice system (pp. 51-65). London: Paradigm Publishers.