How to Address the Overrepresentation of Indigenous People in the Legal System
A reflection on my conversation with Marion Bueller, the Judge that brought First Nations Court to British Columbia.
At the University of the Fraser Valley, I took the Criminology and Criminal Justice Program. It was there that I learned about the overrepresentation of Indigenous people in the criminal justice system. While we represent around 5% of the population, we represent around 30% of admissions into the provincial and federal prison systems.1
The question for one of my undergraduate papers was how do we address this problem?
First, it is key to situate the conversation. Colonization and government policies removed many of the cultural traditions practiced by Indigenous people in Canada. Indian Residential Schools did not allow children to practice their language. Our language is how we learn about our laws and culture. The Government of Canada banned Potlatches, where Indigenous people would govern themselves.
Further, Indian Residential Schools existed in Canada from 1870s to 1990s. The last one closed in 1996. In these schools children experienced abuse of all sorts, including sterilization at some. This meant that the children leaving these schools were not grounded in a health way, they didn’t have their parents recipes, or Sunday night dinner traditions, or healthy ways of coping.
Then comes the 60s scoop, where Caucasian families fostered Indigenous children and raised them in Christian homes. This too reduced the connection between Indigenous people and their cultural practices. Now for some, including my mother and I - this was a positive experience. My non-biological grandmother was a nurse at Coqualeetza Indian Hospital and saw that my mother needed care and chose to raise her as her own. My mother and I likely wouldn’t be here without her love and generosity.
Nonetheless, these government policies had a wicked motive - to remove the savage from the Indian. For over 100 years, Indigenous people have experienced a plethora of different abuses. Generations of children, parents and families given all the worst coping mechanisms. This is the starting place for the conversation regarding the overrepresentation of Indigenous people.
Many different policy mechanisms and programs have been put forward to try to reduce the amount of Indigenous people in the criminal justice system. According to an SFU article, in the late 1960’s, the Department of Indian Affairs, Health and Welfare, Employment and Immigration and Secretary of State provided funding for the Native Courtworker pilot project. In 1973, responsibility for the program at the federal level was assigned to the Department of Justice and was established on an ongoing basis in 1977. 2
I started working for the Native Courtworkers in 2019, and learned that they started in part, because Indigenous people would plead guilty earlier on in the court process than other ethnic groups. There are many reasons for this, and in my personal opinion I believe it is partly because the court process can be very intimidating. Everyone from court staff, sheriffs, counsel and sheriffs dress very professionally. On reserve, community members come as they are with little judgement of appearances. This, from my perspective is a cultural barrier.
As a Native Courtworker it is my role to support the Indigenous person and help them address the underlying factors that led to the charge. What does this look like? Well, for starters it’s important to get to know the individual and understand what their perspective is. Who are they? What adversity have they faced? What challenges did their family face?
From there it is important to know the charges, what are they accused of doing? Depending on the charge, and the severity - I can work with defence counsel and crown counsel to develop a plan. For example, say my client is accused of domestic assault. My role is to understand whether alcohol was involved, a bit about the circumstances and try to get a sense of the remorse of the individual. Once that is done, I can ask if the client is interested in Alcoholics Anonymous, 1 on 1 counselling, treatment programs, and any other programming available.
It is important to ask. Why? Because it isn’t my life, and if the client is half in and half out then it won’t work. The person has to be the driver of their own plan. Often I ask a few other questions like - what are their goals? Who do they want to be? I think this step is too often skipped. People need a greater ‘why’. It isn’t enough to say “I’m going to counselling to get a better outcome in court”. They need to see how counselling fits in with their goals of having a healthier home life, or having a healthy relationship with their spouse or children. It needs to be a step in a greater plan in my opinion. From there, I need to communicate this persons story and plan to other stakeholders like crown counsel, defence counsel, probation officers and community resources.
My organization is one of many trying to address the problem of overrepresentation. In Canada, it isn’t really disputed that the roots of the overrepresentation comes from government policies. In fact, in the Gladue decision, the Supreme Court of Canada found that colonialism creates challenges for Indigenous people, which results in them being more likely to be sent to jail. The court ruled that special consideration should be given to individuals with Indigenous heritage and that jail should be a last resort.3 This decision took place in 1999, and still the amount of Indigenous people incarcerated remains the same.
My guest this week is Judge Buller, and she was instrumental in starting the First Nations Court of British Columbia in 2006. This is another initiative aimed at addressing the overrepresentation of Indigenous people and creating the space to more fully understand the accused, and the underlying circumstances that brought them before the court.
First Nations court are unique in that they include a judge, Indigenous elders, Native Courtworkers, and other court representatives that have a meaningful understanding of the impacts of government policy on Indigenous people in Canada. These courts go by a few different names in Canada, some call them First Nations court, some call them Gladue courts, others call them sentencing courts.
Typically, an Indigenous accused has to plead guilty to enter one of these courts. This aspect is often considered controversial. Once put into First Nations court, the person attends and introduces themselves to the court. All the stakeholders listen, and they attempt to help the person to develop a plan. The person is adjourned to begin to take action on the plan. At the next court date, the person is expected to provide an update on their progress. Once the person completes their plan, a blanketing ceremony takes place to celebrate the persons progress.
The impact of First Nations court on the overrepresentation of Indigenous people is still unknown. 4 Proponents of it will likely acknowledge that it will not cause drastic reduction of Indigenous people - rather it is a process to treat them fairly and equitably.
To have an effective court system, in my view, we need both judgement and grace. During my time as a Native Courtworker I’ve seen some incredibly moving sentencings. Some people want to have the court system be more casual, less formal and I couldn’t disagree with them more vehemently. Court is serious, and individuals face the potential of incarceration and the loss of liberties.
I had a client who was living in a tent, he had been through a few dozen foster homes in his life and lost both his parents. At the time he was living in a tent, and law enforcement came and took his belongings and planned to send it to the dump. He lost everything. The judge had the opportunity to hear all of this, and the judge acknowledged it all. The judge acknowledged that they couldn’t imagine what the accused had been through. This made everyone in the room emotional, including the client. It means a lot for a person who faces struggles everyday to be acknowledged and recognized for the hand they were dealt. If nothing else, policies and programs may not fix the problem but they most certainly create a more humane environment with a lot less despair and a greater sense of community.
In my view, that is what Marion Bueller has done a tremendous job at throughout her career - building community. First Nations court may not fix the problem, but it creates community in a really important way. You can listen to my full conversation with Marion Bueller on Spotify, Apple Podcasts and YouTube where we discuss the Missing and Murdered Indigenous Women & Girls Inquiry, First Nations court, and other topics.
