Revival of Indigenous Justice in Canada, U.S., Should Be Compass for Restorative Justice

Most people would agree that the criminal justice system needs to change in some way. The restorative justice (RJ) movement offers an approach to justice reform for both youth and adults that values repair and relationship over punishment and isolation when dealing with the aftermath of crime. Research is showing its positive effects, and support for this approach is growing.

Of course, the modern expression of restorative justice owes more than a debt of gratitude to indigenous justice worldview and practices. However, understanding and support for indigenous justice in North America is literally all over the map. Indigenous justice is all too often overlooked as an ongoing and sustaining influence for restorative justice and justice reform in general.

I’ll explore a few of my observations of the relationship between RJ and indigenous justice, and share a few examples of how indigenous justice is being revived and practiced in the United States and Canada. I’ll also have us consider the importance of ensuring indigenous voices are at the table for discussions on justice reform for youth and adults. For context, I will state that I am a settler of European descent living and working on the ancestral and unceded territories of the Coast Salish Peoples (modern-day Vancouver, British Columbia, Canada), and the reflections below are most certainly incomplete and imperfect.

Indigenous justice approaches are the primary sources of inspiration for Westernized restorative justice philosophy and programs. Books such as “Returning to the Teachings” and “Peacemaking Circles: From Crime to Community” outline indigenous teachings and approaches to justice that are aligned with modern-day restorative justice principles and practices. These books remind us that in many indigenous traditions, connection and community life lie at the center of justice, and this connection cannot be cast aside when those in community transgress. The harm must be viewed within a context of relationship, and the repair as well.

This shift in worldview affects how we understand harm or crime and how we mete out “punishment.” State-sanctioned punishments transform into obligations held by the one(s) who have caused the harm. What emerges is a responsibility to address the root matters of the destructive behaviors within community. This shift and the fundamental change in how we approach harm and crime was first described in Western terms by Howard Zehr in “Changing Lenses.” But let’s not forget that incredible expertise in thinking about justice issues with a lens of interconnectedness and relationship lies squarely within our indigenous communities and traditions.

We can quickly see how this shift in worldview specifically benefits our youth and young people. Neuroscience supports the conclusion that youth and young adults are developmentally oriented to engage in risky behavior, which — particularly in vulnerable youth — can result in criminal activity.

Indigenous and restorative approaches make more sense than the current punitive system in light of this knowledge. This is also consistent with a trauma-informed approach to justice; and savvy practitioners will therefore build in supports and seek to repair the harm rather than just punish the wrongdoer. In turn, those who have committed crime or harm have an opportunity to make reparation in a way that strengthens relationships, rather than in a way that segregates and isolates.

For the most part, both the United States and Canada have begun to explore and implement Westernized restorative justice approaches to youth and adult crime. Indigenous-specific justice programs, however, are often less visible, less understood and less supported. As a result, indigenous youth and adults are overrepresented but underserved within the justice system of both countries.

In spite of these barriers, both Canada and the United States have vibrant indigenous communities claiming and reclaiming their justice practices with and without institutional support. I will provide a quick snapshot of how this compares in both countries.

Within the United States, vibrant indigenous communities are reclaiming and reviving their justice culture from schools to courts and prisons. The Navajo Nation has made leaps and bounds in their community, and we also see examples of this among the Cheyenne, the Mohawk and many other tribal justice initiatives. Seven Tepees on the U.S. West Coast, focused specifically on young people, was inspired by indigenous healing approaches.

Within the United States, the Department of Justice supports tribal justice initiatives and indicates in its principles that it is committed to furthering the “government-to-government relationship with each tribe, which forms the heart of our federal Indian policy.” In this way, the U.S. government describes its intention toward its relationship with “federally recognized tribes” but the public engagement with and public commitment to integrating indigenous principles into the existing mainstream justice system does not seem as apparent as in Canada.

In the Canadian context, awareness around Canada’s colonial past and ongoing structural oppression against its indigenous peoples is slowly growing. This is due in part to the recent Truth and Reconciliation Commission. While there is repair needed in nearly all society’s institutions (education, health, economic), building up indigenous self-determination in justice is certainly a key way to begin to strengthen indigenous communities. Accordingly, the Indigenous Justice Program (formerly the Aboriginal Justice Strategy) acts as systemic institutional support for this process. Established in 1996, the objectives of the IJP include reflecting “indigenous values within the justice system.”

Also in the Canadian context, we see indigenous cultural revival embedded into crime prevention and justice programing, including the Gwich’in Outdoor Classroom Project, First Nations Courts and the Aboriginal Pathways Program — all visible efforts within the criminal justice system to support the revival of indigenous justice and promote healing and restoration of indigenous peoples. In addition, individual indigenous communities have demonstrated their reclamation of justice, a primary example in Canada being Hollow Water.

Many of the individual programs above are practicing indigenous justice in ways specific to their community and context (e.g. Wet’suwet’en Unlocking Aboriginal Justice Program). Without a doubt, Canada still has a long road of decolonization and reconciliation ahead, but there is evidence that the journey has perhaps begun in earnest within the justice system over recent years.

Ultimately, the United States and Canada are currently being confronted with the legacy of historic inequities and injustices. Despite the shortcomings of both countries, indigenous peoples in both continue to vibrantly preserve and revive their traditions and justice practices.

Active support and involvement of indigenous communities in the justice reform conversation in both countries is an important and invigorating opportunity, but an opportunity that is too often missed with mainstream criminal justice professionals and the public.

The engagement of our indigenous populations can continue to provide a compass for the current restorative justice movement and the overall reform of youth and adult criminal justice systems across North America. Those of us who care about justice reform and its implementation would be wise to continually ensure that indigenous voices have a full seat at the table of this important conversation.

Catherine Bargen is a principal with Just Outcomes Consulting. She is experienced across Canada and internationally as a consultant, trainer and practitioner in restorative justice and conflict transformation strategies.