A Report on the Relationship between Restorative Justice and Indigenous Legal Traditions in Canada

Indigenous Legal Traditions

Creating the Context: The Necessity and Complexity of Indigenous Legal Traditions

According to Indigenous legal scholars, prior to the imposition of Western law on Indigenous people, Indigenous legal traditions were important organizing forces that shaped behaviour, guided relationships, and addressed conflict in Indigenous societies (Borrows 2006; Borrows 2010; Napolean and Friedland 2014). As Val Napolean and Hadley Friedland suggest, Indigenous communities had to create laws that could prevent, or at least minimize, conflict that arises when human beings live together. Moreover, communities also needed to be able to address the conflict and pain after an incident occurred, which usually took the form of a sanction. Much like contemporary Canadian sentencing goals, Indigenous legal sanctions were not necessarily punitive/retributive, since they were also motivated by notions of healing, reconciliation, and reintegration, and if need be, they demonstrated deterrence and denunciation (Milward 2012). In other words, Indigenous legal systems were a source of complex proactive and reactive mechanisms that attempted to produce and maintain a stable and predictable social world for Indigenous communities.

However, it is not enough to say Indigenous legal traditions were/are simply a series of proactive and reactive mechanisms. This takes away from the complexity and richness of Indigenous legal systems, which were flexible and adaptable to changing circumstances, emphasized personal and community balance, and did not compartmentalize different sections of law in the same way Western legal systems do (Chartrand 2015). Most Indigenous legal systems are/were not sorted into different areas of law like the Canadian legal system, where there are clear distinctions between criminal law, contract law, tort law, constitutional law, etc. which is reflected in how these areas of law are taught at law schools, as well as how they are generally implemented and practised by lawyers. Instead, a common theme throughout most Indigenous legal traditions across Canada is the idea of law being interconnected and intertwined (Chartrand 2013). While there might be different sources of law within each Indigenous legal tradition (i.e. creation stories, oral traditions, customs, positive/man-made law), these different sources of law do not change the fact the laws are/were all deeply interconnected (Borrows 2010). For example, the well-being of an Indigenous community largely depended on maintaining and fostering interpersonal relationships within the community, but it also depended on how the community maintained its relationship with the land, water, and animal worlds. Therefore, community well-being was maintained through “family law”, “criminal law”, “law of obligations”, and even “environmental law”, although these were not thought of as different spheres of law, or separate legal responsibilities. Instead, they were thought of as part of a person’s kinship network/responsibilities (Borrows 2010). Therefore, kinship was law.

Proactive and Preventative Strategies: Kinship as Law

While Indigenous legal traditions certainly contained laws that prohibited violence, especially laws prohibiting gendered and sexual violence, (Deer 2015) these sites of law that prohibited certain actions are not where one should begin a discussion of Indigenous law, even Indigenous “criminal law”. Instead, it is important to first be aware that Indigenous societies did not have a centralized enforcement agency, like the contemporary Canadian criminal justice system, that could enforce the law through specialized police forces (Borrows 2010; Chartrand 2013). While there were Elders and other respected leaders of the community that might get involved in weighing evidence and judging the truth of an incident, (Milward 2012) for the most part, law in communities was lived (i.e. individuals aspired to always fulfill their kinship responsibilities) and enforced in decentralized kinship networks. Indeed, kinship was a crucial feature of Indigenous legal traditions, (Borrows 2010; Chartrand 2013; Napolean and Friedland 2014) since it produced a series of legal obligations and responsibilities towards others in one’s family, clan, and larger nation, while also causing those same clan/family members to remind and support individuals to fulfill their kinship obligations. In other words, kinship was multidirectional, in that it shaped the behaviour of individuals, as much as it informed and shaped the behaviour of the collective.

With respect to the origins of kinship, as mentioned earlier, there are many sources of law that Indigenous legal traditions look to in trying to produce a stable social environment. A common source across most Indigenous legal traditions is an Indigenous society’s creation story, which generally holds historical knowledge about the land, but also prescribe teachings and values, especially the significance of reciprocal (i.e. kinship) relationships. For example, the Haudenosaunee creation story depicts the way animals helped Sky Women when she fell from the Sky World, first cradling her in the wings of birds so she did not crash into the water on earth, to placing her on the back of a giant turtle so she had somewhere to stay, to helping her plant vegetables in dirt and mud that an otter fetched from the ocean floor. While this story continues to describe the creation of the world, the important values to take away from even this short excerpt is the importance of relationships and helping others, which produces obligations towards those that helped you. According to the Haudenosaunee worldview, it should also be noted that since animals and plants helped Sky Women when she first came to this earth, and helped her raise her children, humanity’s obligations extend to the animal and plant worlds (Cousins 2004), which is actually a common value found in all Indigenous societies in Canada (Borrows 2010; Chartrand 2013).

Since kinship has its roots in the “original instructions” given to human beings, but is also supported in man-made law, kinship was a serious site for moral and legal guidance, although kinship produced proactive actions more than it prohibited actions. In other words, in the face of decentralized power networks that emphasized creating and maintaining good relationships (Chartrand 2013), kinship can be described as legally requiring individuals to act and carry themselves in a way that ensured good relations, rather than prohibiting certain actions. However, the idea of “requiring” good relations and good conduct not only misses very explicit laws prohibiting certain acts, especially sexual violence (Cousins 2004; Deer 2015), but more importantly, it misses the cultural institutions and practices that surrounded kinship obligations, including childrearing practices, storytelling, and ceremonies, which all worked together to naturalize positive interpersonal conduct (Napolean and Friedland 2014). Much like an Indigenous nation’s creation story informed the importance of kinship, an Indigenous society’s creation story also underlined those cultural practices that shaped a person’s childhood, which in turn ensured an individual grew up into adulthood with an awareness and understanding of their kinship responsibilities. However, kinship could not always guarantee one would live up to what was expected of them.

Responding to Anti-Social Behaviour and Violence

At this point, it is important to restate that Indigenous legal traditions, via kinship networks, attempted to produce a stable and predictable social environment for community members in the face of inevitable conflict. When kinship responsibilities were ignored, or failed to shape someone’s behavior, various legal responses were activated in order to restore community balance, promote safety, (Chartrand 2013; Napolean and Friedland 2014) and if necessary, demonstrate deterrence and denunciation (Milward 2012). Sanctions were therefore multifaceted and tried to achieve multiple goals, although the harshness of potential sanctions, especially those sanctions that attempted to demonstrate deterrence and denunciation, were held in check by important qualifications. Considering that historically, Indigenous communities generally did not have police, sanctions were usually enforced by family members, extended family members, or members of the same clan. This meant healing, reconciliation, and reintegration were priorities, if not the first response. As Val Napolean and Hadley Friedland point out, even if the person had committed a serious offence, the first response was not to inflict pain or seek vengeance, since the offender was also a family and community member, and someone that was loved (2014). However, this does not mean that offender reintegration and healing always prevailed over individual or community safety.

For example, in historic Haudenosaunee society, witchcraft was considered a very serious criminal offence, since it gave a person too much power, and could lead to them causing harm, and/or neglect their kinship responsibilities (Cousins 2004). If someone was accused of practising witchcraft, the first response would be to determine the truth of the accusation (Borrows 2010). If there was truth to the accusation, then community and family members would confront the person and ask them to stop, while also determining the accused’s willingness to stop. Depending on the accused person’s response(s), the community could perform healing ceremonies to counteract their power (if they were willing to give up practising witchcraft), to watching them and observing their behaviour with the hope of eventually performing ceremonies (if they were reluctant, and/or seemed disingenuous about stopping practising witchcraft), to banishment and/or execution (if they continued to cause harm and refused to stop practising witchcraft) (Cousins 2004).

In Anishinabek society, the Wetiko, or Wendigo, was thought to be a cannibalistic spirit that could inhabit human beings and make a person do things they normally wouldn’t, like murder and/or eat members of their family/community (Borrows 2010; Napolean and Friedland 2014). If a community member was thought to be turning into a Wetiko, or was possessed by a Wetiko, the community’s response depended on the offender’s actions, the possibility of them being healed, and/or whether they represented a serious threat to themselves and the community. Like witchcraft, healing and reintegration were first responses, which was achieved through a combination of careful interventions, supervision, and ceremonies. However, if healing was unlikely, making offender reintegration impossible, then it was likely the person would be executed to ensure the safety of the community (Borrows 2010; Napolean and Friedland 2014; Snyder et al., 2014).

Many Indigenous societies created explicit laws prohibiting sexual and gendered violence, so sanctions could be especially harsh as a way to demonstrate deterrence and denunciation, as well as hold the offender responsible for their actions (Deer 2015; Milward 2012). Unlike Canadian criminal justice practices, but much in line with Indigenous philosophies and kinship practices, the victim of sexual violence had an important role in determining the offender’s sanction and punishment (Deer 2015; Milward 2012). The rationale for centering the victim in the entire process was to restore balance in their life, as well as restore balance in the rest of the community, since sexual and gendered violence was an especially despised crime, and was thought to disrupt the community’s moral balance. The most common sanction used in response to instances of sexual violence was corporal punishment (Milward 2012) although some Indigenous societies were known to use banishment and execution, primarily when there were concerns for broader public safety (Milward 2012).