Akwesasne

Gabriela De MedeirosBy Gabriela De Medeiros

UNDRIP

Article 3: Indigenous Peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4: Indigenous Peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

 

As an immigrant, I have spent a lot of time thinking about borders and the impact of crossing them. These lines we draw on the soil are the stitched seams that hold together a world of nations that had to first be torn apart. These seams run through the lands in ways that don’t always reflect the network of relationships that the people living there have built over generations. The repercussions of these geopolitical fissures are a near-constant concern for those living in Akwesasne.

map

Jurisdictional barriers have been at the forefront of my experience working for the Justice Department of Akwesasne from the start. The circumstance of the global pandemic made it so that I was stuck two borders away from the offices where I needed to be, and the sensitive nature of the work I was tasked with meant that I could not access most of the information outside of the closed network of the Justice Department. For the first two months, I was limited in what work I could complete, and I felt quite useless. I was entrusted with researching and drafting a boat registration policy, and I have to admit that it didn’t seem like very important work; as children’s bodies have been gradually exhumed over the course of the summer, and Canada and the United-States are increasingly forced to confront the violent legacy of residential schools, I hoped that as a law intern I could contribute meaningfully in some way. Boat registrations seemed mundane and unrelated to human rights work.

But as I delved deeper into my research, I began to understand the true scope of my task. Boat registrations for a river-based people are a significant jurisdictional battleground. The First Nation of Akwesasne is split between Ontario, Quebec and New York, and the Saint-Lawrence river that flows through the community is designated as international waters. The people of Akwesasne have always used the water in myriad ways, for transportation, sustenance and pleasure, a tradition that continues today as a large portion of the residents of the reserve own a water craft. But the same imposition of authority by the governments of nation-states over the affairs of Indigenous peoples that created the residential schools has transformed the way that the citizens of Akwesasne must manage their way of life. According to settler law, all boats must be registered in a federal database, and all vessels on the waters must produce their registration if ordered by an authority (usually the Coast Guard of either country).

I was tasked by the Justice Department to draft a boat registration policy and update the registration database to help the local tribal police force monitor their own community. This is a move toward establishing their own legal jurisdiction over the waters that surround their home. Apparently this has been a contentious resistance for generations, and Akwesasne has all but established its own jurisdictional authority through customary relationships with the states’ bodies. Denying the authority of a federal police over their affairs on the waters surrounding Akwesasne is nothing short of a stance in self-determination, an exercise of their right to autonomy and self-government.

water

At the end of my second month, the travel restrictions across provincial borders within Canada loosened up and I was called to go into the portion of Akwesasne on so-called Cornwall Island, known to the locals as Kawehno:ke. It’s an hour drive each way and there are no tolls anywhere on my path, until I get to the bridge connecting the Ontarian city of Cornwall to Kawehno:ke. Here my path is blocked by a toll booth and I must pay $3.75 to pass through the only entrance to Akwesasne from the Canadian side. This seemed immediately problematic to me, despite the assurance by my supervisor that my fees would be reimbursed. I inquired as to whether the residents of Akwesasne are permitted to cross for free, and was told that they are indeed granted passage if they show their Indian status card to the toll operator. However, this was a “privilege” that had to be fought for, as initially they had been expected to pay.

I can’t imagine that the decision to construct a toll bridge on that specific crossing was done with a benevolent or even neutral intention. In fact, I was informed that the legal justification for the toll bridge was a strip of land across the length of Kawehno:ke which had somehow been expropriated by the Canadian government — the bridge technically connects Cornwall to Crown-owned land, and not to an Indigenous reserve, and as such it does not infringe on Akwesasne’s right to control the lands within the reserve.

photo

In these few weeks that I have been involved with the Justice Department, I have learned that self-determination plays out not only on the scope of international law, but most importantly in the day-to-day interactions people have with their environment. The jurisdictional battles within the community of Akwesasne have created a patchwork of legal negotiations that the residents must navigate on a quotidian basis, because over the last century and a half they have been denied their own agency by the governments of Canada and the United-States.

I am certain that those who are uninformed see the victories that Indigenous peoples win over time, such as the right to cross the toll bridge without paying, without considering the significant costs which were imposed first. For instance, while Akwesasronen may cross freely onto Kawehno:ke, to cross back into Cornwall and the rest of Canada they must be interrogated by a customs officer at the line we call a national border. Because their community, which predates our settler geo-political borders, have been split up between three different jurisdictions, they are forced to adapt their daily lives to the demands of a government that was imposed on them. The burden of crossing the border has on many occasions impacted the decisions my coworkers have made about when they make the effort to go see family members or run errands within their very community.

As I continue my work with the Justice Department of Akwesasne, I can only imagine what a world without State borders would look like.

Some Thoughts On Gladue

Timothy ParrBy Tim Parr

July 28th, 2021. After working from home for the duration of the pandemic, I received last minute confirmation that I would be travelling up to the Cree community of Chisasibi by plane (specifically on a Dash 8-3000) in order to produce a Gladue report.

Prior to this, I conducted research into various topics, such as access to inmates during the pandemic for the purposes of producing reports as well as interviewing families in and out of isolation. To become a certified Gladue writer, I first had to undergo training and produce a mock report. This was the first stage in my work as an intern for the Department of Corrections and Services (Cree Nation Government).

First year law students are, presumptively, well acquainted with Gladue. In 1995, Jaimie Gladue, a young, 19-year-old Cree woman, fatally stabbed her boyfriend at a birthday celebration. Both Ms Gladue and her boyfriend were heavily intoxicated at the time of the tragedy and had a history of domestic abuse.

Initially, Ms Gladue was charged with second degree murder, but plead guilty to manslaughter (see Gladue Primer at 4). The sentencing judge took into consideration the aggravating factors and sentenced Ms Gladue to three years. However, the sentencing judge failed to take into consideration the accused’s Indigenous status.

This oversight provided the grounds for Ms Gladue’s appeal to the British Colombia (BC) Court of Appeal. The BC Court of Appeal dismissed the appeal, upholding the trial judge’s initial sentence. Ms Gladue and her lawyer appealed this decision to the Supreme Court of Canada (SCC) in 1999 on the grounds that s 718.2(e) of the Canadian Criminal Code was not considered by the sentencing judge which, therefore, amounted to an error in law.

The SCC ruled it an error not to grant Ms Gladue special consideration. In effect, the Gladue decision, and its ensuing framework, ensure that Indigenous offenders can exercise their rights under s 718.2(e), which stipulates that “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.” The purpose of this provision is to find alternatives to punitive forms of sentencing for Indigenous people, such as restorative and culturally appropriate practices. In part, this may consist of drug and alcohol treatment, anger management or counselling (Ibid at 3). S 718.2(e) is remedial in nature. It attempts to mitigate the overrepresentation of Indigenous peoples in federal and provincial prisons across Canada. Moreover, judges take notice of the systemic factors afflicting Indigenous people.

Yet despite the precedent set by Gladue and, the concept of stare decisis, Canadian Courts have either inconsistently applied the framework set by Gladue or ignored it altogether. In 2012, it was necessary for the SCC to reaffirm Gladue with Ipeelee. The Ipeelee Court acknowledged that “systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness” (at para 73). Current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences and perspectives of Indigenous people or Indigenous communities (Ipeelee at para 74). Indigenous offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development (Ibid at para 73). The reasons for this are tied to Canada’s colonial history and its assimilatory practices. As a background/systemic factor, a Gladue report considers the history of the community where the individual lives.

Local Foxes

For instance, Chisasibi is one of the most populous of the communities located in Eeyou Istchee/Cree Territory in northern Quebec (see Morneau at 2). Chisasibi is on the eastern shore of James Bay. Like the other communities (e.g., Waswanipi, Oujé-Bougoumou or Mistissini), hydroelectric development and the signing of the James Bay Agreement resulted in the sedentarization of the Chisasibi Cree. The Chisasibi Cree initially inhabited the village of Fort George and were nomadic. Fort George closed in 1980. Fearing the threat of floods caused by hydroelectric development (which there were—an estimated 10 000 caribou perished, and fish were contaminated by mercury), the Cree settled in the community of Chisasibi, also known as the great river.

The Great River Chisasibi

However, sedentarization created a gulf between generations. The young never knew the nomadic lifestyle of their elders (Ibid at 4). Sedentarization was an attempt to assimilate the Cree. Functions previously performed by families became the responsibility of non-Indigenous institutions, such as schools and churches (Ibid). Mothers lost their role as teachers and fathers no longer performed their traditional roles as providers for their family and as managers of the land’s resources (Ibid). This situation is not germane to the Cree. Kim Anderson explains that Mohawk women traditionally held authority in the political, social, economic and spiritual areas of society (at 85-86). Western norms centered on patriarchy and supremacy of the state, displaced the position of matriarchal power for the sake of a worldview consonant with its own.

Views by the River

Sedentarization led to intergenerational consequences for the Cree. Children were taken away from their parents and forced to attend residential schools where they were subjected to abuse, trauma and acculturation. “Social, political, economic, demographic and territorial upheavals have marked the history of the community of Chisasibi since the first contacts with Europeans” (Morneau at 6). A Gladue report takes these factors into consideration and further traces the history of the individual’s family. It is the Gladue writer’s task to tell the individual’s story, not in the writer’s words, but in the words of the individual, as much as possible.

The writer interviews the individual and objectively presents their story to the sentencing judge, so that the judge can better understand how it is that the individual arrived at their current station. That is, what in the individual’s life pushed them to commit the offense.

The Road Less Travelled

The Gladue process presents many challenges. Not only must the writer avoid any bias (either in favour or against the individual), but they must also recognize that the interview may cause the individual to remember traumatic events that they have pushed from their mind. Shortcomings to Gladue are tied to this latter point. Support for individuals following the interview with the writer appear to be lacking. Without proper support mechanisms, there is the risk of regression. Fortunately, community actors are working to fill this void.

Elsewhere, Professor Marie Manikis has argued that the Gladue principles should be elevated to a principle of fundamental justice (at 1). All state agencies with capacity to affect the freedom interests of Indigenous people ought to be bound by the Gladue framework. This would meaningfully address its inconsistent application and bring greater attention to the overrepresentation of Indigenous peoples in federal and provincial prisons across the country.

Moored Boat

Come next week, I will be leaving Chisasibi to head south to Val D’Or. From Val D’Or I will travel to Mistissini to continue my work as a writer for the Department of Corrections and Services (Cree Nation Government). More to come.

Miigwech,

Tim

JURISPRUDENCE

R v Gladue, Supreme Court of Canada, 1 SCR 688 (1999).

R v Ipeelee, Supreme Court of Canada, 1 SCR 433 (2012).

 

SECONDARY MATERIALS

Community History of Chisasibi produced by Jerome Morneau for use in Gladue Reports, Ministry of Justice, Québec, 2015.

Manikis, Marie. Towards Accountability and Fairness for Aboriginal People: The Recognition of Gladue as a Principle of Fundamental Justice That Applies to Prosecutors (2016).

Tungasuvvingat Inuit (TI), Gladue Primer.

Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.