‘Native Justice’ in Canada

OKIMAW OHCI HEALING LODGE, Canada — Brenda Morrison, a Saulteaux Indian with a punk hairstyle and a flaming arrow tattooed on her left forearm, is a reservation kid from the Canadian prairie who dropped out of school and into trouble after her mother’s early death.

Now 33, she has lived much of the last decade in Kingston Women’s Prison, an aging, notorious warehouse for Canada’s most violent female inmates. Having finished a three-year manslaughter term for shooting her boyfriend, Morrison is midway through a sentence for beating a man with a baseball bat while in a drug-induced haze. After she pleaded guilty last year to stabbing a guard with a syringe during a prison disturbance, her term was increased from five to seven years.

She is the kind of inmate most prisons probably would write off. But corrections officials decided to gamble that Morrison might benefit from a radical change. This winter, they admitted her as one of the first 14 inmates at Okimaw Ohci Healing Lodge, North America’s first prison exclusively for Indian inmates and a centerpiece of Canada’s risky venture into separate justice programs for native people.

The move appears to have paid off: Morrison exhibits a shrewd determination to follow the program here. The warden calls her a model inmate and a “calming influence.”

The healing lodge is only one element--though perhaps the boldest--in a broad experiment that makes Canada, along with New Zealand and Australia, a pioneer in culturally based court and prison programs for native people.

Critics fear the country is headed toward a divisive judicial double standard, with one set of rules for Indians and another for everyone else. But those most familiar with the effort, including non-Indian judges and prosecutors, are increasingly optimistic that for many native offenders, the alternative procedures are more effective and less expensive than traditional courts and prisons. They point to studies that show as much as an 80% reduction in repeat offenses among Indian defendants dealt with by native justice programs rather than the courts.

“There’s a big recognition within the system--much more than I would have expected--that we have to change things,” said Rupert Ross, a federal prosecutor who has written two books on native justice. “Now this is spreading out of the aboriginal communities and into the rest of the judicial system.”

Although Navajo tribal courts in the southwestern U.S. are experimenting with programs based on native traditions, the Justice Department is closely monitoring the Canadian experience. “There’s nothing in the [American] federal or state systems that mirrors what’s happening in Canada,” said Herb Becker, director of the department’s Office of Tribal Justice in Washington. “We’re really interested to see how this works to determine whether this is something we might work on with tribes or state legislatures here.”

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The best-known, most widely used Canadian alternative is the “sentencing circle.” In the past five years, more than 100 Indian defendants have been diverted from the courts to these community-based tribunals, which draw on practices that were followed by many North American tribes before the arrival of European explorers.

The results sometimes are controversial--most notably in the case of a Saskatchewan man convicted of sexual assault who was banished to a remote island for a year rather than jailed. But sentencing circles have gained enough credibility in the judicial establishment to encourage other initiatives, including the women’s prison here.

Okimaw Ohci Healing Lodge--the name means Hills of Thunder, after the prison’s locale--is a collection of brightly painted wood-frame buildings set on a hillside near Maple Creek, a farm town in southwestern Saskatchewan. At first glance, the 160-acre site, which opened in October and will eventually house 30 inmates, looks like other minimum-security prisons in Canada or the United States.

But unconventional elements abound.

Warden Norma Green has a background in social work, not corrections, and is addressed not as “Warden” but as “Kikawaw,” Cree for “Our Mother.” Prison staff, most of them Indian, dine with residents in the mess and sometimes privately in the inmates’ townhouse-style living units. Some townhouses can be adapted for families, so children 4 and younger can live with their mothers this summer.

When Morrison is locked in at night by “big sisters” (the guards) along with the other residents (as prisoners are called), she hears not the jangle and slam of a cell door but a discreet click at the entry of her two-bedroom townhouse. Her prison routine includes the usual work details and academic classes but also native-led seminars in substance abuse. And twice daily, inmates gather in a tepee-like building at the center of the prison to be tutored in Indian traditions by tribal elders from the surrounding Nekaneet Cree Reservation.

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Ceremonial dances, feasts and fasts are on the prison calendar; near the maintenance building is a makeshift sweat lodge, where inmates and elders gather for rituals of self-examination and spiritual cleansing that Morrison described as “like being transported back in time.”

The point, said Green, is not only to connect prisoners with their heritage but to impress on them their responsibility for their crimes and their place in the Indian community.

Can prisoners substitute native identity for the typical inmate cliques and gangs? Will guards get by as counselors rather than authority figures? It’s too early to know. But one inmate already has been released on early parole, and, in interviews with prisoners and staff, optimism is rampant.

Morrison’s townhouse is stacked with boxes of her case files, but aside from that it might pass for a college dorm room. Homework sits on the kitchen table, next to a ceramic figure of an eagle, wings spread. There are a boombox, television and VCR in the corner. Poster-sized photos of her daughter Natasha, 12, decorate the walls.

“I don’t want to think of this as serving a sentence, but as staying here until I’m healed,” she said. “I don’t want to go back to society without any job skills, an alcoholic with no education, all that. This is the place where I’m going to beat those things.”

Warden Green is relaxed about public scrutiny--she welcomes reporters to the prison without hesitation--but remains acutely aware of the potential perception that she is running some sort of New Age summer camp for killers, robbers and drug dealers.

“We have a lot of skeptics out there,” she said. “A lot of them think we’re going to fail, so we have to be very careful about [the prisoners] we bring in. We want this to work because, if it does, we think other institutions can be modeled on it.”

The same sort of pragmatism runs through all of Canada’s experiments with native justice, which were born of frustration over the high poverty, unemployment, substance abuse and crime afflicting many of the country’s Indian communities.

For thousands of young Indians, experts say, prison has become almost a rite of passage and has lost its value as a deterrent. Nationwide, natives make up 13% of the federal prison population and 17% of those in provincial jails, while they constitute no more than 5% of the general population. (Government figures on the number of Indians in Canada are generally lower than the estimates of native leaders.) In the prairie provinces, natives account for 5% of the population but 32% of prison inmates.

Desperate for an alternative, Indian leaders and a handful of innovative judges in the early 1990s looked to the South Pacific, where courts in New Zealand, Australia and Papua New Guinea were having success with native judicial practices remarkably similar to early North American Indian customs.

The idea of jailing miscreants was largely alien to North America’s native people; prisons arrived only with Europeans. Instead, Indians sought to resolve local conflicts in community discussions. Today’s sentencing circles add to that tradition modern social services, substance abuse treatment and family counseling.

The circle is made up of tribal leaders, the defendant, the victim, and friends and families; sometimes a judge presides and lawyers are present. Participants arrive at a sentence after a long process--sometimes two or three days--of discussion and consensus building, and may parcel out blame not only to a defendant but to his or her family. Legal scholars say the process emphasizes restitution, reconciliation and breaking the cycle of criminal behavior, rather than punishment and deterrence.

“The real issue is the psychological community, if you will, of the offender and the victim and involving them in the process,” federal prosecutor and author Ross said. “Who are the people most important to the offender and the victim and how can they be involved? . . . People are the sum of their relationships, and it’s only in those relationships that they will find the strength to swim against the tide of the economic and cultural deprivation that surrounds them.”

It works for some.

“The sentencing circle gave me a chance to see that other people really cared about me. . . . They showed me I could do something for myself and my family. It’s a very powerful experience,” said Charlton Rope of Saskatchewan, who went through the procedure after pleading guilty to manslaughter in a drunk driving accident in which the passenger in his car was killed. The passenger was Rope’s father.

Instead of the usual three-year prison term, the sentencing circle put Rope on probation, on condition that he stop drinking, find work and perform community service--counseling young Indians about alcohol.

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Rope, 32, has become a much-in-demand alcoholism lecturer and counselor and today is building a men’s wellness clinic in his community. He contrasts his experience with jail, where “you just play along with the system just to try to get out. That’s what everybody’s goal is--to get out, not to change your life.”

Encouraged by such successes, the government has pressed ahead with the experimental healing lodge and other initiatives, and native leaders are lobbying for an even more radical step: an entirely separate justice system for Indians.

Many prosecutors, law enforcement personnel and political leaders remain wary.

Murray Brown, director of appeals in the Saskatchewan prosecutor’s office, applauds the way Rope has “turned his life around” but wonders whether “that had more to do with the sentencing circle or with the fact that he killed his own father.”

Canadian law permits the prosecution, as well as the defense, to appeal trial court rulings, and dozens of native justice cases are moving through the appellate process on the grounds that penalties were inappropriate. When prosecutors contested the controversial sentencing circle decision to banish Billy Taylor of Saskatchewan to an island for one year in a sexual assault case, for example, 90 days of jail time and three years of probation were added to the banishment. Then they appealed again, and the case is still in court.

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Sheryl Fillo, the government lawyer who convicted Taylor, said candidates for sentencing circles should be selected carefully.

“They’re for particular individuals who have reached a certain stage in their life where they can benefit from this,” she said.

The reluctance of sentencing circles to imprison defendants also runs against prevailing public opinion in Canada, which, as in the United States, favors tougher sentences and longer and more certain prison terms.

“Popular political opposition is very strong,” acknowledged Mary Ellen Turpel, a Saskatoon lawyer, law professor and Indian activist. “People are very nervous about law and order issues . . . and the thrust is, make it tougher, be more punitive. . . . It’s really hard for any politician to win votes by supporting this issue.”

The only way to counter that reality is to show that native alternatives can reduce crime and cut costs, she added.

David Arnot, who oversees native justice programs for the federal government from the capital, Ottawa, is evaluating procedures around Canada and finds early results encouraging. In Hollow Water, Manitoba, where sentencing circles have been used to combat what has been called an epidemic of child sexual abuse, only two of the 52 defendants who went through the program during its first two years were rearrested.

A just-completed study in Whitehorse, Yukon, found an 80% reduction in repeat offenses among those who went through sentencing circles, said presiding Judge Barry Stuart.

In New Zealand, judicial practices similar to sentencing circles and based on Maori native traditions were extended in 1989 to all juvenile offenders ages 14 to 16. The result has been an 80% reduction in juvenile court activity and an estimated $41 million in savings, according to Matt Hakiaha, a former Auckland court official who has advised the Canadian government on native justice issues.

In arguing to expand native justice, Arnot contends that the public appetite for punishment is straining the capacity of Canada’s courts and prisons--as well as taxpayers’ pocketbooks--without necessarily bringing an increase in public safety.

“We know that prisons are training grounds for criminals, and we know that eventually these people will be out on the street again,” he said. “We have to be flexible and accept that different approaches may be needed.”