National Aboriginal Day at the Ottawa-Carleton Detention Centre

Madeleine MacDonaldBy Madeleine Macdonald

On National Aboriginal Day, we went to Ottawa.

Ottawa has been getting a lot of love this summer, as countless dollars have been pumped into Canada 150 celebrations. National Aboriginal Day was no exception, and celebrations were held overlooking Parliament.  Leaders, elders, and community members feasted and danced; they spoke of reconciliation and snapped photos. By all accounts, a good time was had.

Across the city, nestled among mature trees and strip malls, lies the Ottawa-Carleton Detention Centre. The OCDC is a remand facility, a sort of processing warehouse for inmates as they move through the justice system.  From pre-trial detention to conviction to sentencing to incarceration, this is where inmates stay before they arrive at the correctional facility where they will serve out sentences longer than 60 days.  But don’t be fooled by the label. Despite its innocuous name, OCDC is a maximum security facility with everything that entails: barbed wire, industrial food, strip searches, and solitary confinement.

On a beautiful, sunny summer day, a team from the Mohawk Council of Akwesasne, Akwesasne Justice Department skipped the downtown parties and schmoozing to celebrate National Aboriginal Day in prison. The percentage of aboriginal inmates at OCDC hovers around 30%, relative to 3.8% of the national population. Despite this, 2017 marked the first time a cultural celebration was held for NAD there. Increased aboriginal cultural and spiritual programming is just one of the recommendations of the OCDC Task Force, struck in March 2016 to address reports of deplorable conditions and overcrowding.   

That day, aboriginal inmates who had shown good behaviour were invited out into the yard for a surprise. Native Inmate Liaison Officer Brian David greeted them with smudging before welcoming them into the yard, which held a mid-construction sweat lodge and a circle of chairs. Our guests were treated to a feast of homemade fry bread, corn soup, and fresh strawberries. Wearing his formal Gustowah (feathered headress), Satekaronhioton Fox of Native North American Travelling College told creation stories. Joyce King, Department Director, spoke of culture and restorative principles, emphasizing the importance of knowing one’s identity. In Haudenosaunee culture, to be prepared to for death, each one must know five things: their name, clan, language, song, and their medicine.  Then, we danced.  

Singing and drumming, the men from the travelling college led and we all followed.  Shuffling behind, the women massaged the earth with their feet, just as Sky Woman massaged the dirt on Turtle’s back to create the world.  We laughed. We sang.  Just like the big shots downtown, we feasted and feted, but there were no photo ops, because cameras are contraband.  

And as we were dancing around a barbed-wire enclosed prison yard, an osprey appeared overhead in that blue and cloudless sky, soaring wide and graceful arcs. Beneath him, for a moment, we were all free.

A Few Words on the Tekaia’torehthà:ke Kaianerenhsera (Akwesasne Court Law) to Commemorate the “Birthday” of the Akwesasne Mohawk Court

2016 Philpott AmeliaBy Amelia Philpott

Over the past months of my placement with the Mohawk Council of Akwesasne Justice Department, there have been some exciting legislative developments in the community. In June a referendum was held on the Akwesasne Oién:kwa Kaianerénhsera (Akwesasne Tobacco Law) regulating the manufacturing and distribution of tobacco on the territory,[1]  and this month the community’s Tekaiatorehthà:ke Kaianerenhsera (Akwesasne Court Law) came into force.

The cover page of the Akwesasne Court Law. This is a picture of the crumpled paper copy I carried around with me all summer. A full (less crumpled) version is available on the Akwesasne Law Registry (link at the bottom of the blog post).

The cover page of the Akwesasne Court Law. This is a picture of the crumpled paper copy I carried around with me all summer. A full (less crumpled) version is available on the Akwesasne Law Registry (link at the bottom of the blog post).

I have decided to focus this blog post to the latter. The Akwesasne Court Law coming into force is an event worthy of celebration not only for the Mohawks of Akwesasne, but also for First Nations across Canada, because it marks  the “birthday”[2] of the first ever independent court established by a First Nation.

Background

The Mohawks of Akwesasne have been administering their own justice since well before Jacques Cartier first arrived on Mohawk territory in 1535.[3] As members of the Haudenosaunee Confederacy, The Mohawks were united with the Cayuga, Onondaga, Oneida, Seneca, and later the Tuscarora, under the Kaianerekowa (Great Law of Peace); bringing together the previously warring nations. This law enforced the matrilineal clan system across the Confederacy, based on hereditary leadership.[4]

With Canadian Confederation, however, came a number of obstacles preventing the community from being able to effectively exercise their traditional Haudenosaunee government. Section 91(24) of the Constitution Act 1867 assigning “Indians and Lands Reserved for Indians”[5] to federal jurisdiction was used to justify a number of assimilative policies which had, and continue to have, severe repercussions for all First Nation communities, including Akwesasne.

In Akwesasne, elections were imposed by the Canadian government in 1899 in an attempt to disempower the traditional Mohawk council of chiefs.[6] This imposition, along with the larger assimilative scheme of the Canadian government, ultimately prevented the community from being able to administer their own traditional justice effectively.

Perhaps the greatest obstacle Akwesasne faced in this regard was the drawing of a Canadian-American international border squarely through their territory, and the further quartering of their land into the Canadian provinces of Ontario and Quebec. These borders alone have made it virtually impossible for the community to administer one cohesive justice system, since the Mohawk Territory of Akwesasne, and the larger Haudenesaunee Confederacy, now have to contend with multiple imposed colonial jurisdictions.

The Akwesasne Mohawk Court

Despite efforts to dispossess the Mohawks of their traditional institutions, the community has never stopped asserting their right to govern themselves and their traditional territory.[7] The Akwesasne Mohawk Court is an example of this.

The court itself, established by the Mohawk Council of Akwesasne (MCA), has existed since the 1970s, but its character has evolved substantially since then. For the first twenty or so years of existence, the court operated under the Indian Act, with Minster of Indian Affairs approved justices of the peace adjudicating by-laws passed under section 81 of the Act.[8] The court was therefore under tight control of the Canadian government.[9]

Over the past few decades, a number of interrelated factors made it easier for the community to effectively assert their right to make their own decisions about their judicial institutions.

Firstly, the Constitution Act 1982 entrenched this right by  “recognizing and affirming existing Aboriginal […] rights”[10] under section 35(1) of the Act. This effectively gave the assertion of this right a Constitutional backbone. Furthermore, towards the end of the 1980s the Minister of Indian affairs began rejecting a greater number of by-laws proposed by the MCA. The band council ratified some of the rejected by-laws anyway, marking the beginning of the community passing legislation themselves under their inherent right, as opposed to under the authority of the Indian Act.[11]

An important factor leading to the establishment of an independent court at Akwesasne was a report produced by Bruno Steinke in 1995 (the Steinke Report). The findings of the report indicated that overwhelmingly Mohawks of Akwesasne were in favor of establishing their own independent Mohawk court on their territory. The survey indicated that the community wanted a court to be structured like a Canadian court, with the incorporation of traditional restorative Haudenosaunee principles, presided over by justices from their own community.[12]

A reading of the Akwesasne Court Law clearly demonstrates that the Akwesasne Mohawk Court as it stands today has been modelled directly from the Steinke Report recommendations. The law represents a significant shift from the Court’s earlier days of operation in one very important way:  its source of authority is the community itself, and their inherent right to self-govern, as opposed to the Canadian government via the Indian Act.[13]

The Akwesasne Court Law

This Akwesasne Tekaiarorehthà:ke Kaianerénhsera (Akwesasne Court Law) reflects the values of the Mohawks of Akwesasne and the principles of Sken:en (peace), Kasatstensera (strength) and Kanikonri:io (a good mind), respect, fairness as well as natural justice.[14]

The coming into force of the Akwesasne Court Law on August 12 laid a framework enabling the Mohawk Council of Akwesasne to adjudicate their community laws. The law sets out the principles, powers and authorities of the Akwesasne Mohawk Court and governs the conduct of the institution’s justices. It also outlines the Court’s jurisdiction, which spans across a broad range of civil matters, including contract disputes, matrimonial property, and the regulation of untaxed tobacco products on the territory.[15]

Aside from the symbolic significance of Akwesasne Court Law for Akwesasronon[16] in terms of what it means for the MCA’s assertion of self-government, the law also places the community at the forefront of indigenous self determination efforts in Canada by laying the foundation for the first independent court established by a First Nation.[17]

The mix of legal traditions informing the Court Law is also unique: In accordance with the expressed will of the community,[18] the court is set up to be adversarial; operating in accordance with fundamental principles of Canadian justice.[19] What sets it apart from Canadian courts is the incorporation of traditional restorative Mohawk principles into the institution’s judicial framework.

The distinct blend of traditions in the Akwesasne Court Law is particularly present in its sections pertaining to remedies. While some are in line with what one might expect a provincial or Federal judge to order, others are unique to the Mohawk Court. Illustrating the former, section 9.3  states the payment of fines or ordering injunctions are both within the scope of remedies a Mohawk judge might order.[20] On the other hand, the requirement under section  3.4 that a judge consider “the talents of the [offending party]”;[21] and use these for the benefit of the community to remedy their infraction; is a consideration one would certainly not encounter in a Canadian Court.

The inclusion of Mohawk principles in the Akwesasne Court Law  is important for two reasons: Firstly, it is an affirmation of the community’s cultural identity. Secondly, by employing restorative mechanisms focussed on healing for offenders, the law illustrates an approach to justice which promotes the long term wellbeing of the community.

On a practical level, the Akwesasne Court Law guarantees members of the First Nation that their cases will be heard by a Mohawk Judge from their own community, and that they can choose to have court proceedings conducted in either English or Mohawk.[22] The law will also lessen congestion in nearby provincial courts, as it gives Mohawks of Akwesasne the possibility of referring to their own court to adjudicate community matters.

Concluding Thoughts

At the Akwesasne Justice Department I have been fortunate to work with some of the amazing trail-blazing minds behind the Akwesasne Court Law. I feel being an intern here during the first “birthday” of the Akwesasne Mohawk Court essentially gives me a backstage pass to history-in-the-making. Expressing how much this has meant to me is difficult, but suffice to say I consider myself to be one incredibly lucky law student (and human being).

You can find a digital copy of the Akwesasne Court Law, along with other community legislation on the Kaiahnehronsehra iehiontakwa (Akwesasne Law Registry):

http://www.akwesasne.ca/lawregistry

 


[1] Akwesasne Oién:kwa Kaianerénhsera (Akwesasne Tobacco Law), MCR 2016-2017-#075, Purpose para 2.

[2] Credit to Gilbert Terrance, Court Administrator, who called August 12th “the Birthday of the [Akwesasne Mohawk] Court.”

[3]  Frey, S.L., The Mohawks : An Inquiry Into their Origin, Migrations and Influence Upon the White Settlers, (Utica: Oneida Historical Society, 1898) at p 6.

[4] Joyce Tekahnawiiaks King, “The Value of Water and the Meaning of Water for the Native Americans Known as the Haudenesaunee” (2007) 16:3 Cornell Journal of Law and Public Policy 1.

[5] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24) , reprinted in RSC 1985, Appendix II, No. 5.

[6] Rarihokwats, How democracy came to St. Regis & the thunderwater movement, (Rooseveltown, NY: Akwesasne Notes, 1974) at p 8.

[7] Ibid at p 3.

[8] Indian Act, RSC 1985 c I-5.

[9] Anna Gilmer in conjunction with the Akwesasne Justice Department, History of the Akwesasne Mohawk Court (2015) at p 6 [unpublished, archived at the Mohawk Council of Akwesasne Justice Department].

[10] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[11] Ibid note 6 at pp 8-9..

[12]   Bruno Steinke, “Justice Needs in a Mohawk Community: Akwesasne” August 1995  at pp 65-70.

[13]  Akwesasne Tekaia’torehthà:ke Kaianerénhsera (Akwesasne Court Law), MCR 332 2016, Preamble para. 10.

[14] Ibid at Purpose para 2.

[15] Ibid at ss 5.1-5.4

[16] “Akwesasronon” is the Mohawk term for community members of Akwesasne.

[17] While other First Nations have established courts (see the Nisga’a Treaty), the Akwesasne Mohawk Court is the first institution of its kind established under the inherent Aboriginal right to self-government, recognized and affirmed by section 35 of the Constitution Act, 1982.

[18] Ibid note 9.

[19] For example, section 7 of the law helps to ensure the principle of judicial independence is upheld by holding the Akwesasne ratiianerenhserakweniénhstha (justices) and teshatiia’toréhtha (appeal justices) accountable to the Akwesasne Review Commission for their conduct. The Akwesasne Review Commission can also be called upon to rule on an alleged conflicts of interest of justices or appeal justices.

[20] Ibid note 13.

[21]  Ibid.

[22] Ibid at s 4.2.

 

 

Justice in an Indigenous Community

2015 Gilmer AnnaBy Anna Gilmer

I have recently completed my internship at Akwesasne, a cross-border Mohawk community near Cornwall, Ontario. I was specifically working for the Mohawk Council of Akwesasne, which governs the Canadian half of the community and is located partially in Ontario and partially in Quebec.

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When I sat down to write this second blog post, I reflected on my time at the Akwesasne Justice Department, and tried to think of the most interesting thing about it. As I considered everything I had been exposed to at the department, about all the programs and services that they run, I was struck by the huge scope of their mandate.

The Justice Department of the Mohawk Council of Akwesasne is made up of only approximately 17 staff. But these 17 people cover a huge range of services. Their lawyer and paralegals provide legal assistance on all legal matters to community members and to the band; they have probation and parole services as well as an early release program in place for community members in both Ontario and Quebec; and they run the conservation and compliance offices. They also draft new legislation, conduct the local elections and referendums, and are currently in negotiations with Canada for a final self-government agreement. The Akwesasne Mohawk Court serves as a community court, addressing matters within a specified mandate. Finally, the Community Justice Program (a program within the department) assists with young offenders, organizes community service work, and runs diversion programs and circle sentencing. It is a huge portfolio, and represents an impressive move towards local control over justice.

Of course, many aspects of justice at Akwesasne are reflective of outside structures, since the system has had to be redeveloped from scratch in the last few decades. In a discussion of the Akwesasne Mohawk Court, the Director of the department, Joyce King, explained to me that when the court was set up, the department brought in Canadian lawyers to train Justices. As such, the court is reflective of the only system those lawyers knew: it is adversarial, with the Justice at the front and rules reflective of Ontario and Quebec procedure. Despite the strong Canadian influence, the Justice Department has worked to incorporate Mohawk traditions, values and laws. Community control has also been prioritized, and is central to law enactment procedures and other processes. It is interesting to see how the community has worked to regain a Mohawk system of justice on the territory.

What is also interesting about the justice department, and especially about the Community Justice Program, is its genuine focus on ameliorating the problems facing the community. Among other things, this means addressing such issues with youth, and helping them stay safe and out of the justice system. Between my research and writing, I had the opportunity to help plan and then attend the program’s Summer Cultural Youth Camp. The Camp was focused on culture, and provided youth in the community (and particularly those in contact with the justice system) with an opportunity to practice their culture, to listen to teachings, and to live Mohawk values. They fished, sang, danced, did crafts, made fires and listened to stories. Programming also addressed issues facing youth in the community, such as drug and alcohol abuse, the large number of missing and murdered Indigenous women, and more generally the continued effects of colonialism. I was impressed by how well the participants responded to the camp.

In a small but incredibly complex community, the Akwesasne Justice Department does a lot. It attempts to rehabilitate community members who have been convicted. It works to keep youth safe and away from criminal activity. It incorporates Mohawk traditions and values into the justice system. It passes laws that reflect community priorities and ideas. Of course, it faces its share of challenges, and the structures in place are not perfect. Nonetheless, it is an impressive example of the kind of work that Indigenous communities are doing to regain control and assert self-determination.

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