Peace and Good Order-The Case for Indigenous Justice in Canada, (McLelland & Stewart, 2019) by Cree author Harold R. Johnson, is another example of a talented, accomplished and fully integrated Indigenous writer, with close and personal experience of the ongoing tragic social failure and dysfunction happening on Indian reserves- and with close and personal experience, because of his background as a criminal lawyer, of the inability of Canada’s justice system to cope with it- of refusing or neglecting to state the obvious root cause of this failure, dysfunction and inability-the existence of the reserves themselves. Instead, he solely blames non-Indigenous Canadians, past and present, for it. Despite the book’s impressive recitation of the well-known and dismal facts and statistics regarding this failure and dysfunction and our courts’ inability to deal with it, the book boils down at the end to useless, largely unjustified and backward-looking finger-pointing, (with a disturbing amount of “anti-white” racist rhetoric being used-see below), at the “settler” peoples and institutions (that made the author’s own life a success such that he could write this and other books) and the advocating of a solution that is fundamentally flawed, impractical and unworkable-utopian even- the transfer of all aspects of criminal law jurisdiction over Indigenous peoples to the Aboriginal “nations”. This would include writing the laws, enforcing them by Indigenous police, prosecutors and courts right through to sentencing, and post-sentencing supervision and control, with funding provided for all of this by non-Indigenous Canadian taxpayers.
Instead of advocating the phasing out of the reserves, and generally, ending the “separate but equal” quasi-apartheid status quo we are burdened with in Canada, the root cause of Indigenous social failure and dysfunction- the root cause of Indigenous over-representation in the justice and penal system- and the only honest, competent and workable remedy for the tragic ills besetting our Indigenous peoples , Mr. Johnson proposes a merely “Titanic deck chairs” solution. He proposes that we create a separate criminal justice system run by Aboriginals and for Aboriginals only.
Mr. Johnson claims that the wording of Treaty 6, the treaty whereby his Cree ancestors, as well as the Saulteaux, Assiniboine and Chippewayan tribes, “ceded and surrendered” to Canada all their “rights, titles and privileges” to their lands, (comprising the bulk of present-day Saskatchewan and Alberta)- in particular, wording that says that the Indians “will maintain peace and good order” amongst themselves and “between themselves and others of Her Majesty’s subjects, whether Indians or whites”- only means that they promised to obey their own laws in existence at the time, or made in the future by the Indian treaty-signers. He asserts that this treaty wording means that Indians, because the treaty was allegedly about “sharing” the land, not surrendering it, (a novel, Indian Industry argument du jour- given legitimacy by the Ontario Restoule decision, as described in my book There Is No Difference), retained criminal law jurisdiction over themselves, and following this, that jurisdiction over the criminal law as it pertains to Indigenous persons be returned, as of alleged right, to the descendants of the Treaty 6 signers.
It’s a really specious argument. And it’s no solution to the tragic on-reserve problems he so well describes. It’s only something that, even if were practically possible, (which it is not), would be the equivalent of putting the proverbial lipstick on the proverbial pig.
It ignores almost 150 years of history, where no one has ever interpreted the treaty this way-until he does now. How people behave in relation to agreements is good evidence of what they think the agreement in question means. Treaty 6 Indians have never argued that they were not bound by Her Majesty’s laws and legal procedures, until Mr. Johnson comes up with this argument in this book.
They have always submitted, without objection, to Canada’s criminal laws and procedures, indeed, just as Treaty 6 clearly specifies.
The “peace and good order” wording, boiled down, as it has always been understood, clearly just means that the Indian treaty signers were promising to Canada to legally behave themselves-to follow Canada’s laws in the sense that all subjects of any government must follow and obey that government’s laws.
Mr. Johnson ignores the unambiguous promise by the Indian Treaty 6 signers, located in the treaty before the “peace and good order” wording, “to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen.”
He ignores their promise “that they will in all respects obey and abide by the law,” (clearly referring to the law of Canada.)
He ignores their promise that “they will aid and assist the officers of Her Majesty in bringing to justice and punishment any Indian offending against the stipulations of this treaty, or infringing the laws in force in the country so ceded.” This is a patent declaration of general submission to Canada’s laws and legal procedures.
On a practical level, the viability of the solution Mr. Johnson proposes is completely belied by his own facts.
He argues that an Indigenous justice system would concentrate on the “redemption” of the Indigenous offender, by him acknowledging his wrongdoing, returning to his community (rather than being incarcerated, which he falsely states, along with deterrence, are the main focusses of the “white man’s” justice system), and then somehow being “healed” by all this and then successfully becoming re-integrated into his community, a better man or woman for the whole experience.
But return to what kind of community? How could these reserve communities possibly perform the healing functions Mr. Johnson imagines, when they are, as he himself says, “traumatized”? Clearly they can’t. The cause of the trauma, can’t be the cure of it.
The first three-quarters of Mr. Johnson’s book is a harrowing and depressing description of the terrible physical, social and psychological conditions of the typical reserve where these over-represented (in the justice system) Indigenous offenders come from.
He describes the “clan justice” system typical of many reserves, where clan and family ties and the risk of clan and family retribution influence the reporting of crime, law enforcement and legal outcomes.
He describes the reserve RCMP themselves, developing mental health issues because of what they see happening on their reserves, which they are essentially helpless to control or prevent.
His descriptions of the constant and excessive consumption of alcohol, horrific sexual assaults, (many against children and many related to alcohol), drugs, “extreme violence” and child neglect, (also closely related to alcohol), school dropout rates, sense of hopelessness, PTSD and other severe mental health issues existing on the reserves, is searing and heartbreaking. Indeed, in a previous book written by him, Firewater, Mr. Johnson states that the death of about half of all Treaty Six residents is due to alcohol! (See The Untold Story of Indigenous Child Neglect and Alcohol Abuse- The Firewater Complex, by former Manitoba Provincial Court Judge Brian Giesbrecht, (who personally witnessed during his career much of what he writes about), under Commentary, on this website.
He describes the populations of these reserves, as stated above, as “traumatized.”
So how could returning Indigenous offenders to these seriously damaged, “traumatized” communities ever reasonably expect to result in “redemption” or “forgiveness” or “healing”?
Even Mr. Johnson admits that “When we have a traumatized and inflated police force interacting with a traumatized population we should not expect good results.” Further, he writes: “Justice has nothing to offer such a community.”
As I said, his “solution” is completely inconsistent with these horrible and immutable facts and conclusions he lays out as the basis of his argument.
There are many other reasons why his “solution” is impractical and unworkable. Treaty 6 would have to be re-negotiated and reworded. The Canadian Constitution itself would likely have to be changed. The Criminal Code would have to be drastically amended. There would be federal-provincial issues to deal with. Legal issues involving Indigenous persons committing offences off the reserve would be numerous and virtually unsolvable. The jurisdictional wrangling between the two criminal law jurisdictions would be endless and costly. Only the lawyers would benefit. It’s not ever going to happen.
As a bit of an aside, I have a bone to pick with Mr. Johnson, a former lawyer, regarding his casual use of language seemingly approving the possibility of vigilante-style, Indigenous violence against “whites” if the current situation isn’t remedied to his satisfaction. He describes, seemingly approvingly, Indigenous street gangs in Saskatchewan who were, after the Colton Boushie verdict, “armed and prepared to start shooting. All they needed was someone to give them the okay. Our leadership told them to stand down.” (!) Even if that were true, which I’m sure it’s not, it’s reckless, irresponsible and violence-approving language, completely inappropriate for any responsible person, especially a lawyer-an officer of the Court- to engage in. (Mr. Johnson may be a retired lawyer, but once a lawyer always a lawyer.)
He writes that “Saskatchewan is prepared to go to war with its Indigenous peoples.” What a crock!
He threatens, at the end of the book: “We will start taking out our frustrations on the colonizer. At some point we will stop killing ourselves and our relatives and begin killing the oppressor.” (!) How breathtakingly reckless, dangerous, irresponsible and juvenile! This sounds like Donald Trump suggesting violence against Hilary Clinton!
And the final irony of this so-called “righteously angry” book, which speaks in such “clear and present danger” terms in regards to the tragic and wrongful situation of Indigenous persons in our criminal justice system, and in life generally, and despite his main recommendation that Indigenous people have their own justice system, he pivots from this and offers another secondary, more practical solution. He recommends more research and study of the situation! Like a fireman, standing in front of a raging house fire with people inside the house, deciding not to immediately put a hose to the fire and rescue them, but rather to go back to the fire station and read up on the principles of heat combustion. He recommends analyzing the recidivism rates of probation officers’ clients, the recidivism outcomes of individual prosecutors, defence counsel and judges, whether some jails and parole boards have better outcomes than others. “Once we have the information and analyzed it, we would have a better idea what works and what doesn’t. If we revised laws and changed policies based upon measured outcomes, we might improve those outcomes.”
So which is it, a separate Indigenous justice system or more endless “kick the ball down the road” studies, surveys and “analysis”? Mr. Johnson doesn’t seem to be able to decide. In any event, whichever option he chooses, poor, vulnerable, lost, marginalized, powerless Indigenous persons will, while all this endless Indian Industry job-creating “analysis” is going on in the big cities, continue to suffer. As I wrote in There Is No Difference and in the Widdowson book review above, quoting Octavio Paz, asking suffering people to wait for the happening of an infinitely remote end is to condemn them to the perpetual prison of the present. Our suffering Indigenous peoples desperately need foundational reforms and change now!
The only solution to better this situation, the only way for Indigenous peoples to escape the “perpetual prison of the present”, for the reasons I argue in my book, There Is No Difference, is to eliminate the laws supporting our Indigenous quasi-apartheid status quo, then phase out the reserves, and by that means help Indigenous peoples complete the already-started process of integrating into general Canadian, urban-oriented society on the basis of everybody being equal under the law.
Peter Best- December 15, 2019