Recently the Supreme Court of Canada reaffirmed a 1999 decision (R. v Gladue) for all Aboriginal people to be given special consideration when undergoing criminal prosecution in all Canadian lower courts. R. v. Ipeelee, a case brought before the Supreme Court of Canada on appeal, was held, directly citing the outcome of R. v. Gladue. Canadian jails and penitentiaries have a high Aboriginal population, along the lines of 1/3 of the total population of inmates. Both defendants in the cases decided more than a decade apart are federally recognized Aboriginals, or enrolled First Nations members.
“When sentencing an Aboriginal offender, a judge must consider the factors outlined in R. v. Gladue, 1 S.C.R. 688: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Systematic 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. Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender. The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community. The principles from Gladue are entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2(e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples.” (page 6, R. v. Ipeelee)
The offender in R. v. Ipeelee, Mr. Ipeelee, is from Iqaluit, Nunavut. His immediate family, all of Inuit descent, was destroyed by alcohol when he was a child, and his own life involved heavy abuse of alcohol. His criminal history began when he was 12 years old and has since been in and out of incarceration and probation on dozens of offenses, ranging from petty theft to violent crimes.
The offender in R. v. Gladue, Ms. Gladue, was born in McLennan, Alberta, off reserve and continued to live off reserve throughout her life with eight siblings and a single parent. The family is of federally recognized Cree and Metis descent. Living in a life of poverty, the appellant was convicted of manslaughter, and was sentenced three years’ imprisonment and a ten-years’ weapon prohibition. In the case, the justices analyze the history of Part XXIII, Section 718.2(e) of the Criminal Code, legislatively enacted and implemented in 1995, and state the lower court did not take into consideration Ms. Gladue’s identification as Aboriginal during sentencing. Finding this, the justices constructed a framework for all lower courts to use when sentencing all Aboriginal offenders under s. 718.2(e) of the Criminal Code.
“It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will perhaps play a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.” (pages 65-66, R. v. Gladue)
The case in Alaska is directly comparable, with the Native population of inmates in the Alaska correctional system amounting to roughly 1/3 of the total population. A considerable amount of federally convicted Alaska inmates are sent to Arizona and Colorado, due to overpopulation of the Alaska correctional system. Unfortunately for Alaska and the U.S., there are no summary judgements coming down from the US Supreme Court on the matter. The courts in the state of Alaska, however, are taking into consideration alternative means of sentencing rural Alaska offenders. Alaska Supreme Court Chief Justice Walter Carpenti has stated to the Alaska Legislature in the past that 66% of offenders in Alaska will repeat their crimes. Lower court judges and magistrates around Alaska have begun implementing “circle sentencing” for repeat offenders, which involves family members, friends, and community members when considering conviction of an offender. The small lower court system has also been a problem, with residents of remote communities having to travel away from their communities and most likely regions for court appearances. Chief Justice Walter Carpenti has been more active than his predecessors in remedying chronic Alaska Court system problems and building more infrastructure where it was previously lacking throughout the state. The Tribal Courts of Alaska have also come to the forefront of the justice system recently, with the State vs. Native Village of Tanana, 249 p3D 734 case recognizing the sovereign authority of Alaska tribes under the Indian Child Welfare Act, a previously high point of contention. The State of Alaska and the Tribal Courts of federally recognized tribes in Alaska fought over jurisdiction under ICWA since its inception in 1978. Perhaps with this newly established clarification held between the State of Alaska and Tribal Courts, Tribal Courts can expand their influence and jurisdiction over their members in the numerous Alaska rural communities with an existing and operating Tribal Government. Several problems still arise, however, with Alaska being a “Public Law 280 State”, where the State of Alaska was given criminal jurisdiction of the “Indian Country” in Alaska. These are generalized terms, of course. In this situation, state courts supersede Alaska tribal courts under state criminal law, because authority over criminal jurisdiction by tribal governments was taken by Congress under P.L. 280 of 1953 and given to the participating states of the law. A similar Alaska judicial opinion found under ICWA would massively help this confusing situation found under P.L. 280.
“What is ahead for [restorative justice] in rural Alaska depends on the leadership and rural people and their dedication to healing. The restorative justice process started working within the western justice system because of dedicated Magistrates. People in other parts of the world have worked to ensure the safety and well being and healing of their communities [and] have already done so much of the work. In Alaska, the wheel does not have to be re-invented. A visionary can see that the world can be made a safer place and work towards that process. But real healing needs to come from the rural communities. The social services agencies serving rural Alaska could make their job easier by asking people what they want, instead of trying to fix the problem using the western way of thinking. There is hope as the agencies are trying to find solutions. They only need to look to their neighbors to the east and see how successful the models of restorative justice are working in [Yukon, Canada].” (page 15, Hyslop 2012)
Criminal jurisdiction in Alaska should be reviewed by the federal government, the State of Alaska, and tribal governments. The Supreme Court of Canada cases did not mention First Nations’ tribal courts, and the State of Alaska will not fully recognize Tribal Courts in Alaska when it comes to criminal cases. The Supreme Court of Canada has proven to be most progressive in the situation of incarcerated Aboriginals, or Natives, or Indigenous peoples. Some form of the United States government, whether the Supreme Court or the State government should consider handing out an opinion on the systemic and chronic problem and issue.
“What exactly is ‘indigenous justice’? Is it the justice delivered by our tribal courts? Or is it the justice that is unique to indigenous nations, which stems from our purely indigenous (traditional) law? Indigenous justice, by virtue of the need to refer to it as ‘indigenous’ hints at a different type of justice,…it carries a promise of an indigenous type of justice. Is it different? Is indigenous justice different from the dominant form of Anglo-American justice? I believe that indigenous peoples have a different sense of ‘justice,’ and while justice can transcend color and cultural differences, native peoples have a concept of justice that differs from Anglo-American justice. Even so, we must recognize that indigenous systems of justice have been colonized and as such have incorporated Anglo-American legal processes and law. So, is indigenous justice characterized more by the constricted space it is allowed to operate within and as it has been misshapen by the dictates of federal Indian law? This external influence has affected indigenous justice, but I surmise a colonized sphere cannot fully contain indigenous justice. Indigenous justice is bound up with the part of indigenous law that represents the essence of who indigenous peoples are, as reflected in our creation stories and journey narratives, our placement and movement on the land, our responsibilities and relationships to one another and to all that occupy our place/space with us.” (pages 882-883, Zuni 2006, citations omitted)