Not just the peace pipe but also the lance: Exploring different possibilities for indigenous control over criminal justice.

Source: (2008) Wicazo Sa Review. 23(1): 97-122.

This article will begin by exploring whether contrasts between restorative
and punitive models of criminal justice inform an ideological
struggle between Western and Indigenous approaches of criminal justice
as Indigenous communities strive for greater control over criminal
justice. There is a perception of such an ideological struggle because
many feel that Indigenous methods of justice that resemble restorative
justice can provide effective solutions to the problem of Indigenous
overincarceration. The honest answer is partly yes and partly no. An
unqualifi ed yes has some merit but can also be misleading. It neglects
important considerations such as Western recognitions of restorative
justice, the degree of cooperation between Western criminal justice
systems and Indigenous communities, that tradition may not always
remain relevant in contemporary Indigenous communities, persuasive
critiques against restorative justice, and signifi cant punitive inclinations
among Indigenous peoples both past and present.
This analysis is insightful, but it also offers possibilities for Indigenous
control over justice. Indigenous communities may want to revive
traditional modes of corporal punishment as forceful alternatives to incarceration,
or integrate them into restorative resolutions. Restorative
justice processes can also be structured to deal with problems of power
imbalance. Both possibilities can be explored in a meaningful effort to
Not Just the Peace Pipe but
also the Lance:
Exploring Different Possibilities for
Indigenous Control over Criminal Justice address community safety so that Indigenous justice does not necessarily
involve a lopsided emphasis on offender healing. This can also
add a new dimension to dialogues between Indigenous communities
and Western states. Western states have accommodated Indigenous
approaches for lesser offences but have been reluctant when it comes
to more serious offences. An untried but interesting possibility is to
pitch corporal sanctions as deterrent alternatives to negotiate for
greater control over criminal justice, serious offences included. It can
be argued that such sanctions are not necessarily more inhumane than
incarceration, provide deterrence and retribution, and are more culturally
meaningful. Indigenous communities can also include processes
designed to address power imbalances in their proposals. The idea is to
defl ate Western concerns that Indigenous justice means softer justice
and therefore unable to address community safety.
The ultimate goal is Indigenous self- determination over criminal
justice. Decisions about criminal justice will have to include the community
at large, not just the leadership. This means extensive consultations
with the community membership at large. They must include
parties that may be vulnerable to certain crimes, like women vis- à– vis
sexual or domestic assault. It would also have to include both traditionalists
and “progressives” since this can become a signifi cant source
of community division and necessitate negotiations and compromise.
This analysis will focus on Canada but will be supplemented by material
from other jurisdictions. The article now begins by describing the
important background problem of Indigenous overincarceration. (Author’s Abstract)