aboriginal self government and the canadian justice system1

Through the many inquires which have been made over the past decades in to
the Canadian justice system(Brizinski,1993,395) it has over and over again been stated that the present justice system has and is failing Aboriginal people. It is not suited for their cultural needs and does nothing to rehabilitate offenders but rather does the offender more harm then good. It does not address the underlying conditions causing criminal behavior or in assessing what specific needs must be addressed to rehabilitate.
The purpose of this paper is to examine why the justice system fails for First Nations persons and alternative rehabilitation methods used by Aboriginal people, comprised of Aboriginal people, for Aboriginal people, in hopes to rehabilitate offenders and prevent criminal behavior in the Aboriginal community from precontact to today. Through the attempts of Aboriginal people to take control of their own destiny’s in the ever going struggle to attain self-government I will examine the aims and structure of one of these alternative rehabilitation methods, the Sentencing Circle used today to address the need to return to community based “Restorative Justice Programs” in the Aboriginal community
It is the belief of first nations that the healing process and renewal of relationships are the essential ingredients for the building of healthy First Nations communities. First nations realize that the current justice process does not address the real issues at hand nor does it fit into their traditional forms of achieving justice. In fact, the current justice process systematically removes the offenders from their people and communities effectively severing all ties and relationships the individuals may have. In actuality, according to First Nations, no rehabilitation or correction of the individual occurs. In most cases, the individual returns home and assumes the same behavior which got the individual into the system in the first place. Thus, the cause of criminal or unacceptable behavior is not addressed nor is there a restoration of relationships. Since the 1970\'s the numbers of over representation of aboriginals in the justice system has been shocking,”...Aboriginal people made up approximately 2% of the population of Canada, they made up 10% of the federal penitentiary population. When looked at regionally, the figures were even more distressing. For example, in the prairies, where Aboriginal people made up 5% of the population, they were 32% of the penitentiary population. In terms of incarceration in provincial facilities, the figures were even higher. For example, in Manitoba and Saskatchewan, where Aboriginal people made up between 6 and 7% of the population, they made up 46 and 60% of the provincial correctional centers admissions respectively.”(Hylton,1999,207)
“At the time of contact with Europeans, Native people had developed very sophisticated systems of government and social control.”(Rudin & Russel,1993,40)
Actions were treated as deserving of sanctions or punishment only if they threatened to disrupt the interrelatedness of the clan, tribe, or environment, because of the holistic approach to life favored by Aboriginal people it was not specific actions which brought about sanctions, but the consequences of actions which were the concerns of the society. Resolution of what might be viewed as criminal activities were usually arrived at privately between the parties themselves of their families. The justice system only engaged when repercussions of a person’s behavior required attention, not in response to any particular action.(Rudin & Russel,1993,41)
When a community response was required, Aboriginal people did not call upon specialized legal tribunals or specific individuals to act as judges. Rather, in keeping with the egalitarian nature of the community, all the members of the tribe would come together to discuss the case and to decide on the proper disposition of the affair. Since Aboriginal communities worked on the basis of consensus, unanimity was required before any sentence could be passed. When unanimity could not be achieve after discussions that might have lasted days, the matter was set aside for later deliberation. (Rudin & Russel,1993,41)
Guilt and innocence was not an issue for Aboriginal culture. The sanctions a person might face as a consequence of their actions were generally designed not to punish, but to prevent recurrence of community disruption. Forgiveness was an essential element. The purpose of punishment was to show the offender that they had disrupted the relationship of interconnectedness among members of the community. Because punishment served