Indigenous Canadian Discrimination and Conflict With the Law

Introduction

The Indigenous population has been a target of oppression since colonization. The Indigenous population has been a topic that we have previously conducted research and written papers on, regarding the negative social behavior effects from the residential schools, as well as the incarceration of Indigenous peoples and the linkages to the oppressive discrimination from society. Our goal is to build on this research exploring the micro, mezzo, and macro framework of oppression towards Indigenous peoples in society. Oppressive policies and laws in the Indian Act infringed the rights of Aboriginal peoples and marginalized them causing negative social behavioral impacts creating conflicts with the law. Canada needs to make positive changes to advocate and denounce the stereotypes and discrimination towards Indigenous peoples created through colonization.

Social Injustice

The incarceration rates of the Aboriginals have always remained high in Canada despite the small population in the society. Research identifies that since 2004, the number of the imprisoned aboriginals has increased by 80. Further analysis identifies that the situation is not about to change anytime soon. The increasing rates of the imprisonment of the individuals call for the need to identify the reasons as to why the injustice has been present in the society for such an extended period.

The primary reasons for the presence of the outrage are the justice system and the high rate of substance abuse among the Aboriginals. This work focuses on to explain why the Aboriginals are highly incarcerated and have many issues with the law on a micro level.

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One of the primary reasons that have promoted the high numbers of incarcerated aboriginals is the criminal justice system. The system is particularly harsh on these individuals, treating them differently from individuals from other social groups. The established judicial system does not favor the aboriginals at all. They are more likely to get imprisoned for petty crimes as compared to other races (Budden, 2014).

Research identifies that for long, the individuals have pushed for the development of a justice system that recognizes their way of life, rather than that of the whites. A majority of the Aboriginals recognize the justice system in Canada as foreign and lacking the ability to integrate their way of life. The inability of the system to consider their culture leads to the development of conflicts with recognizing the system.

Besides, the Aboriginals are poorly represented in courts, being a more reason as to why they perform negatively in court proceedings. The under presentation in courts has been identified through numerous studies to be as a result of their low financial abilities, making it much harder for them to hire the best lawyers.

Additionally, the Canadian justice system negatively favors the Aboriginals with the usage of English. Research identifies that the language used in the courts is not clear to all Aboriginals, even those whom English is their first language.

Finally, the Aboriginals are less aware of the court processes and their rights, a situation that makes it harder for them to deal with court proceedings. The conditions have resulted in their high numbers in prisons.

Further, the over-representation of the Aboriginals in the judicial system has resulted from their high rates of substance abuse. Research identifies that the Aboriginals highly abuse drugs such as alcohol, a primary reason that makes them end up in trouble with the justice system. The high tendency for the individuals to use alcohol has been identified to result from high levels of depression and being highly disadvantaged in the society. Alcohol, therefore, becomes their solace. Their high alcohol consumption rates result in higher crime rates that consecutively results in the high number of Aboriginals behind bars.

Further, the individuals have been reported to be experiencing numerous mental health issues (Douglas, 2013). They have less access to rehabilitation and treatment centers. With the conditions and their current socio-economic situations, they end up faster in jails as compared to other individuals (Weatherburn, 2014). The rates of the incarceration of the Aboriginals have remained extremely high for an extended period.

The primary reason why the situation has remained dominant in the society arises from an unfair Canadian justice system and their high rates of substance abuse. The right strategies need to be established to ensure that the individuals receive similar treatment as other individuals in the community. The government should look forward to treating all communities fairly, to reduce the incarceration rates of the Aboriginals.

Policies and Laws

In 1763 the First Nations people were protected from the European settler’s exploitation through the Royal Proclamation signed by King George III of England. The Royal Proclamation gave the First Nations people’s rights, protections, and outlined the process that the Indian lands could be acquired by the government. Determining who is considered a legal Indian was outlined in the 1850 Act for the better protection of the lands and property of the Indians in Lower Canada. The requirement in this Act was that people had to be of Indian blood and members of a body or tribe of Indians. The determinants included descendants of one parent who was of Indian blood and even those who were non-Indian but were intermarried with an Indian. A Gradual Civilization Act was implemented in 1857 which removed rights from the First Nations peoples and aimed at assimilating them into the European population.

"I cannot help thinking about those times, now past when governors and generals used to meet our fathers and the great councils and made great promises that were never, never to be broken while grass grew, and waters ran… But the wars have passed away… And… Our fisheries, hunting–grounds, lands and homes are taken from us, whether we like it or not… Those pledges made to our grandsires by British nobleman have been and are still everyday shamefully violated, so that the poor Indians have ceased to have any confidence in the government" (Angelini, 1997).

This statement published in the Christian Guardian on May 28, 1862 demonstrates the colonization use of treaties to enhance their living by taking from the indigenous, using the language barrier to write policies that would relinquish indigenous rights in hopes that indigenous would assimilate to the Eurocentric culture or die. In 1867 The Constitution Act legislated jurisdiction to Parliament of the Province of Canada over the “Indians, and lands reserved for Indians (Henderson, 2006).”

Later in 1869 the unsuccessful Enfranchisement Act was developed to get First Nations people to give up their Indian rights status for land and the right to vote. Due to the unsuccessful assimilation of the First Nations people attempts with previous Acts, the Indian Act was developed by the Department of Indian Affairs in 1876, which combined the Gradual Civilization Act and the Enfranchisement Act. “The Indian Act is the principal statute through which the federal government administers Indian status, local First governments, the management of reserve land, and communal monies (Henderson, 2006).”

This Act resulted in preventing the First nations peoples from expressing their identities, culture, and enforced education which created the residential and boarding schools, section 114-116 outlines the policies directed in the education of Indian children and schools in the Indian Act.

The residential schools were meant to assimilate indigenous children into the dominant Eurocentric culture and force the denouncement of the indigenous culture through a “brainwashing” process that rewarded citizenship to the indigenous children that behaved well within the residential schools and learned English and Eurocentric Christian cultures (Mashford-Pringle, 2015). Treatment of children in the residential schools were malnutrition, experimentation, sexual, physical, verbal and emotional abuse. The residential schools were in effect from 1829 to 1996. The residential school syndrome caused Aboriginals to experience physical, emotional and psychological disorders, including suicide, addictions, family violence and chronic unemployment.

In previous versions of the Indian Act it stated, “Indians who earned a University degree would automatically lose their Indian status (Montpetit, 2014).” This also infringed the Aboriginals rights because they were forced by the Indian Act to assimilate and get educated but then they would lose their Indian status rights, which was another way of the colonists to force assimilation of the Aboriginal peoples into Eurocentrism or otherwise into poverty with the repercussions from the lack of education to further better themselves, and the trauma experienced in the residential schools.

“It is through historical consciousness that secondary traumatization can occur. Indigenous peoples will feel connected to their initial trauma of their ancestors and may internalize it, affecting their interactions with them within the dominant culture and society (Mashford-Pringle, 2015).”

The traumatic effects imposed on the children of the residential boarding schools caused a long term negative impact for the future generations. Professor Emily Milne states, “legacies of racial discrimination against indigenous Canadians in schooling have led to the intergenerational mistrust of the school system… The history of indigenous education in Canada has led to deep rooted distrust of teachers in the education system (Milne, 2016).”

The survivors of the residential boarding schools that went on to have children reflected the negative impacts onto their children. This meant that the new generation lacked love, parenting, cultural identity, knowledge and were subject to physical, verbal and emotional abuse, lack of educational support and encouragement. The trauma from the residential school survivors is internalized by their children who then experience vicarious trauma or secondary traumatization.

“Canada reported in 2006 that fifty percent of people on reserves were on social assistance and ninety percent are unemployed… Many of the reserves where [indigenous] people live are dilapidated and impoverished, and the poor urban neighborhoods they are moving into are not much better (Chrismas, 2013).”

These statistics attribute to various social impacts on the indigenous population. The residential school impact caused the indigenous people not to trust the education system, therefore many indigenous people lack education, which is a tool necessary to obtain higher paying jobs. The formation of reserves also impacted the socioeconomic class of the indigenous population. The reserves confined indigenous peoples to those areas and prevented them from migrating to areas that would provide them with certain foods necessary for their health, therefore the indigenous people must purchase these foods causing partial of the financial strain.

Another factor impacting the social assistance and unemployment rates in the indigenous population is the disparity of living in poor conditions causing higher criminal involvement and social problems. The low government funding, impoverished housing and communities, lack of education, and loss of cultural continuity and self-identity are factors that have impacted the indigenous peoples socioeconomic class. The poor living conditions that indigenous people face make them feel the loss of hope, which causes them to self-medicating abusing substances like drugs and alcohol and in some cases, acts of suicide. All the factors impacting the indigenous socioeconomic class stem from the impact and trauma of the residential schools.

The Constitution Act of 1982 recognized the rights of Aboriginal peoples and with the Charter of Rights and Freedoms amendments to the Indian Act were made to restore equal Aboriginal men and women status rights and reduced Federal government ability to nullify Aboriginal land claims and treaties.

Child welfare agencies were taking aboriginal children from their families and placing them into foster care, in the nineteen-sixties; this was mandated by the government and contributed to the loss of culture, language and aboriginal identity, effects were like the continuation of the colonization methods.

In 1995 the Inherent Rights Policy gave Aboriginals the right to self-government; this meant that Aboriginals have control over design, administration and delivery of their programs and services (Chappell, 2014). The programs and services included, the child welfare program. As per Rosalie Chappell author of Social Welfare in Canadian Society, “Aboriginal children in care are susceptible to becoming street kids and sex-trade workers.” This statement supports the behavioral impacts on Aboriginals and the negative effects that come from separating children from their culture, representing in the statements and statistics of Aboriginals in conflict with the law.

The gap between the justice system and Aboriginal culture

There are so many gaps in the justice system that need to be addressed in order to bring peace and unity between the police and Aboriginal people. The justice system infringes the rights of aboriginal people through the lengthy delays in the criminal trials and inquest proceedings. Seven deaths in aboriginal teens. Racism and stereotypes that is what these youths face every day they need to have an education program about the justice system. This is what the youth have to say about the police. “Police are often a young person's first point of contact with the justice system. Forum participants viewed policing as the most immediate, visible sign of failure of Ontario's justice system in serving First Nations communities. Too often, youth felt targeted by police with the approach to law enforcement seen as intimidating and creating fear within Aboriginal communities. Youth believe that the police have a responsibility to build trusting relationships with Aboriginal communities and to listen to their needs(Smith, 2017).”

Some Aboriginal youth spoke about lack of understanding of who, to address their needs including poverty and addiction and their negative life changing decisions that are sometimes made without first explaining to the young person's their rights or clarifying complex legal terms and processes, so that they can get a better understanding of everything and they are not left in the dark.  This is one of the reasons so many of them try to cope in many ways so that they can survive on their birth land.

Recommendations

The Canadian Prime Minister Justin Trudeau Thursday, September 21, 2017, “laid out Canada’s efforts to address a domestic “shame” the treatment of Indigenous peoples. He said Canada is a country “that came into being without the meaningful participation of those who were here first (Smith, 2017).”

Based on Mr. Trudeau’s proposals, some of these suggestions can help us to move forward as a nation police college level training must be mandatory, specific to the history of Aboriginal people so that they will be decreasing risk of coming into contact with the law.

 “The officer's participation in community functions or in community life, where possible, out of uniform. Community members should be involved in this evaluation process and know their feedback about the degree to which they feel an officer is interested and engaged in the life of the community is part of an officer's evaluation. This role could possibly be taken on by a community policing council (Smith, 2017).”

Part of the officer duties should focus on building positive working relationships with the community members to improve their relationships. This should be a part of their employment evaluation or performance review. “In line with the Truth and Reconciliation Commission's Call to Action number twenty-seven (27), we call upon the Federation of Law Societies of Canada to ensure that lawyers receive cultural competency training, which must include the history and legacy of the Indian Residential Schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal Rights, Indigenous law and Aboriginal-Crown relations.

This will require skills-based training in intercultural competence, conflict resolution, human rights and anti-racism (Smith, 2017).” The Department of Indigenous and Northern Affairs Canada, should work with Aboriginal legal service organizations, chiefs, band councils and communities to help develop an education process where Aboriginal youth can learn about the local justice traditions of their communities that existed prior to contact with European settlers.

By helping young people obtain this knowledge they can become informed partners and work with their leadership and community knowledge keepers to help create new approaches to justice that meet the needs of their communities. “The Ministry of the Attorney General must work in partnership with the Ministry of Community Safety and Correctional Services to ensure safe and fully functional detention facilities. The government must revisit what is happening with bail hearings. Bail hearings have become more like punishment for many Aboriginal people. Bail conditions for Aboriginal people can include things like attending addiction treatment programs or counseling. The problem is bail is supposed to be about ensuring attendance at court not about forcing a person to meet conditions usually tied to a sentence after a trial has taken place and a finding guilt has been established. These unfair bail conditions can set Aboriginal people up for failure and possibly new charges before they've even been tried (Smith, 2017).”

Statistics have shown that the discrimination of the Aboriginal population have created many stereotypes that members of society automatically assume and label Aboriginals. The stereotypes marginalize the aboriginal population and create negative situations that cause them to have conflict with the law.

Conclusion

Historically the laws and policies created regarding Aboriginal peoples were aimed to oppress this population causing loss of culture, loss of identity, trauma, intergenerational trauma, poverty, suppression of women and their rights.

As a result, the oppressive policies and laws in the Indian Act infringed the rights of Aboriginal peoples and marginalized them causing negative social behavioral impacts creating conflicts with the law. The Truth and Reconciliation commission allows the Indigenous peoples to speak of their history and experiences due to colonization. Education on the Canadian Indigenous peoples is a key aspect to equalization.

References

Budden, C. (2014). Following Jesus in Invaded Space: doing theology on Aboriginal land. Clarke & Co.

Chappell, R. (2014). Chapter 12 The Social Welfare of Aboriginal Canadians. In R. Chappell, Social Welfare in Canadian Society (pp. 330-364). Toronto: Nelson Education Ltd.

Chrismas, R. (2013). Multi-Track Diplomacy and Canada's Indigenous Peoples. The Canadian Journal of Peace and Conflict Studies, 45(1), 5-30.

Douglas, V. (2013). Introduction to Aboriginal health and health care in Canada: Bridging health and healing. Springer Publishing Company.

Feather of Hope, Justice and Juries news conference. (2016, March 7). Retrieved from http://stream1.newswire.ca/cgi-bin/playback.cgi?file=20160307_C1128_VIDEO_EN_636762.mp4&posterurl=http%3a%2f%2fphotos.newswire.ca%2fimages%2f20160307_C1128_PHOTO_EN_636762.jpg&order=1&jdd=20160307&cnum=C1128

Henderson, W. B. (2006, July 02). Indian Act. Retrieved from The Canadian Encyclopedia: http://www.thecanadianencyclopedia.ca/en/article/indian-act/

Mashford-Pringle, A. (2015). Indigenous Peoples and Biculturalness. The Canadian Journal of Native Studies, 35(2), 137-52.

Milne, E. (2016). "I have the worst Fear of Teachers":Moments of Inclusion and Exclusion in Family/School Relationships among Indigenous Families in Southern Ontario. Canadian Review of Sociology, 53(3), 270-289. doi:10.1111/cars.12109

Montpetit, I. (2014, July 14). Background: The Indian Act. Retrieved from CBC News: http://www.cbc.ca/news/canada/background-the-indian-act-1.1056988

Smith, C. (2017, September 21). Canada Struggles to improve conditions for Indigenous people, Trudeau tells the UN. Retrieved from The Star: https://www.thestar.com/news/world/trudeau-to-use-un-speech-to-address-struggles-of-canadas-indigenous-peoples.html

Weatherburn, D. (2014). Arresting incarceration: Pathways out of Indigenous imprisonment. Aboriginal Studies Press.