Cultural diversity and native justice: the "sentencing circle" and the sacred use of peyote among the native peoples of Canada

[Extract from the graduation thesis Recognition of the rights of the Native Peoples of Canada2015]

Following the drafting of the 1982 Constitution and the Canadian Charter of Rights and Freedoms, many academics, lawyers and experts in criminal law and representatives of First Nations they clamored for the implementation of a judicial process more consistent with native values ​​and traditions.  The possibility, concerning the creation of an alternative criminal procedure, which takes into consideration the native legal vision and the principles that characterize it, is part of the broader discourse concerning the process towards self-determination and self-government that the native populations of Canada have for some decades now.

Cultural diversity and judicial regulation

Pavlich argues that the recognition of a specific legal regulatory space that takes into account the native point of view as well as that strictly of common law can be achieved - not only by opposing an additional purely native legal system to the existing legal system, but - also by granting juridical "spaces" peacefully recognized to indigenous communities or, to put it differently, matters in which their point of view is recognized without disputes (non-disputatory subjects). This should be the first step towards recognizing one Aboriginal Justice. The desire of native communities to implement a justice system  native derives from the general perception of indigenous communities regarding the inadequacy of conventional judicial procedures in regulating the social mechanisms within the native communities themselves. The judicial procedures of common lawin fact, they are perceived as too centralized, too formal and too much alien towards native populations.

Indeed, it is clear how cultural diversity requires different forms of judicial regulation, which must be restorative as well as repressive to adapt to the particular needs of each community. This can only be possible by applying to the judicial process the traditional values ​​of the native culture, lost in the centuries of colonialism and forced assimilation, and by definitively recognizing their role in this process by the native actors. Contrary to conventional procedures, which are extremely centralized, bureaucratic, excessively inflexible and extremely technical, First Nations they are clamoring for the implementation of judicial proceedings with a different approach to conflict resolution, based on shared sentiments, on a community social morality and on the reallocation of competences between indigenous communities and the state. The main argument that underpins these claims by native communities can be identified in the belief that the community is more adequate than the state to achieve social justice. On the other hand, this is perfectly in line with the theories of legal pluralism, because, logically speaking, communities - and not a centralized power - are able to analyze internal judicial issues more correctly.

The process of creating a native judicial system, alternative to the conventional Canadian one, should also leverage on the appointment of indigenous judges who are able to make people understand the principles that regulate the Aboriginal Justice even to non-native judicial workers. Only later, once the latter are also able to understand the basic lines according to which indigenous communities wish to proceed with the regulation of judicial procedures, will it be possible for the First Nations be recognized a certain degree of decision-making and judicial competence in criminal matters.

For the time being, pending recognition and implementation of native courts, indigenous communities have institutionalized a number of proceedings such as sentencing circles, the sentencing panels - in which a commission formed by elders advises the judge on the most appropriate sentence or sanction for the specific case - and community mediation commissions, which aim to increase the participation of native communities in the process of sanctioning criminal activities. Only by applying the use of traditional native systems to this kind of situations is it possible, according to the point of view of First Nations, effectively correct the criminally relevant behaviors of native subjects, who have always felt the conventional procedures as extraneous and unjust, as well as exclusively punitive and repressive.

In conclusion, we can see that for native communities interested in gaining control over their judicial matters, the healing social and community derived from an appropriate use of judicial mechanisms, and the implementation of a native justice is inextricably linked to the concept of community healing (community healing).

Acculturation and inculturation: the sacred use of drugs within a ritualized context
In fact, it is now evident that the forced assimilation and acculturation of native populations in Canada has failed from all points of view, from the educational system to the penal system. Some authors have clearly demonstrated how forced acculturation policies have irreparably damaged the social fabric within native communities, favoring massive urbanization that has given rise to various problems, deriving from the sense of inadequacy they felt in relating to the urban mechanisms of Canadian metropolises, such as alcoholism, drug and psychotropic addiction, depression, family abuse, youth violence. Curiously, the same authors have shown how the subjects who had maintained a link with their own culture were much less dramatically affected by the move to the city. We can therefore speak of inculturation (enculturation) as an inverse process to the acculturation carried out over the decades by the Canadian state: only with a progressive reunification of native communities and individual indigenous subjects to their own traditional knowledge it is possible to reverse the procedure of forced acculturation of the aboriginal populations and to heal the social and judicial mechanisms that have now proved their ineffectiveness.

As we have said, it is now recognized that young native people who have maintained a bond with their own culture are less affected by the devastating effects that instead affect those native actors, more cultured and often resident in large urban centers, which detach themselves from their own traditions. This is evident above all with regard to the systemic problems of alcoholism and excessive drug use: traditional teachings in fact promote abstinence from certain altering substances, if only outside the traditional processes of individual and community healing.

If it is true that in some native communities even today psychotropic substances are used in order to reach the healing - or rather al rehabilitation - of the subject within the community - for example, even today some communities of Cree natives, both in Canada and in the United States, still make use of sacred peyote limited to the ceremonies of individual and community healing - on the other hand, it is imperative to underline how such use cannot in any way be considered in the same way as the uncontrolled and illicit use of drugs that occurs above all in large urban centers. Numerous authors, in fact, they underline how the ceremonial use of certain substances, obviously in close and necessary connection with the purely mythical and traditional content aspect on which the healing ceremony is based, actually has the ability to provide the subject undergoing the rite with a new, a peculiar vision of one's role within society and the community, not deriving from social mechanisms imposed from above, and therefore perceived as extraneous to one's own culture, but deriving from below, from the community itself, from mythical narratives.

It is necessary to mention here how, in traditional societies, the use of psychotropic substances always takes place within well-defined institutionalized situations, which are always linked to a sacral dimension of the individual and of the experience itself, never to a dimension playful or nihilistic, as is usually the case in industrial societies. In our opinion, such use should not be sanctioned by the Canadian central authorities, since it appears to be a corollary of freedom of worship and religion, as well as the cultural self-determination of native communities. In other words, the use of psychotropic substances and medicinal herbs in certain communities of natives becomes a real cultural and social custom, which has its roots in a well-defined cultural background, existing for centuries, which makes it a such use within a ceremonial dimension is a real right ancestral, that is to say existing before the contact of the native populations with the European settlers, and therefore deserving of protection. It goes without saying, therefore, that based on art. 35 of the Constitution, a use of this type should not only not be criminalized, but should even be recognized as a cultural right, in connection with its spiritual-religious dimension. It also remains to be underlined here how certain processes of healing individual and community, whether or not they provide for the use of psychotropic substances or medicinal herbs, are in their native vision also inextricably linked to the purely judicial and criminal dimension of the rehabilitation, since from the native point of view this process rises simultaneously to a method of resolving social conflicts and a method of reintegrating the accused into the community.

I sentencing circles

A similar process of healing community and reintegration of the individual subject within the community is based above all on the notion of personal responsibility and of self help. By providing the accused with a procedure aimed - not at imprinting a social stigma on his person, but - at giving him the opportunity to ask for the help of the community and to become aware of the inadequacy of his behavior, he is encouraged to admit the his own responsibility and to consciously reintegrate himself within that social nucleus which he risked compromising with his behavior. In a criminal proceeding of this type, subjects are therefore encouraged to reconstruct their identity for the purpose of healing at the same time community and individual, and do not consider themselves - as happens when they are tried by a court of common law - “mere points of application of the state judiciary”. The validity of this "rhetoric of responsibility" is also recognized by legal philosophers such as Barry Smart.

Recognition of the competence of First Nations the implementation of similar community mediation judicial procedures, such as the one already mentioned sentencing circle, would represent one step of primary importance for the social reorganization of native communities of Canada, as the community itself would turn into an arena where social justice and socially appropriate behavior would be taught from below, that is to say by the native community itself without any interference from the Canadian state.

Traditionally, circles consist of a group of people interested in participating in the resolution of a dispute. These people often include the accused, the victims and their families, as well as the elders and to other individuals who hold information, interests or skills that can be used to restore harmony between those involved. This type of procedure takes place precisely within a circle, both to symbolize the connection between the human consortium and the higher order, and to highlight the equality of all the participants in the process of restoring harmony. Once the circle is formed, the participants speak one at a time, following the path of the Sun and each suggests the measures to be taken to heal the conflict. Obviously, the principles used within the sentencing circles they are largely influenced by traditional law, mythical tales and native worldview.

What we would like to underline, moreover, is how to access a type of judicial procedure if we want it so informal, a confession on the part of the offender is often necessary, who is therefore allowed to be judged by his associates only following a declaration of responsibility. Most of the time, otherwise, the judicial decision will remain within the jurisdiction of the court of   criminal law, whether provincial or state. Hence the observation that, in the final analysis, the legitimacy of the judicial procedure that we have defined as informal and community-based is based on the voluntary participation of the subject in the procedure, following the release of a declaration of responsibility towards the community, and on his will. to conform again to the social norms that govern it in order to reintegrate into it at the end of the more or less long period of rehabilitation. By means of responsibility individualresponsibility is also built, so to speak community.

Informal process and community healing

It should also be noted that the informality of the judicial process that we have described above does not at all allow the confessed offender to avoid the sanction or to be given one that is not proportionately adequate. It should not be assumed that, by the mere fact that he is being tried - rather than by a court of common law - from his own  affiliates themselves, he may enjoy preferential treatment or a low penalty. Although the sanctioning methods of traditional societies are very different from those of legal positivist societies, we must not think that they are less adequate for this. For example, the confessed offender, instead of having to serve a shorter or longer prison sentence in a state judicial institution, may be removed from the community for a certain period of time, in an inhospitable place outside the reserve (wilderness programs). In the native view, such a sanction would not only serve to punish the transgressor, but also and above all to give him the opportunity to fully realize, during the period of estrangement from community life, the inadequacy of the behavior that was the cause. . A sanction of this type - which as we can see presents the three functions of the criminal sanction, namely retributive, afflictive and preventive - has the merit of placing the offender in an ideal situation so that he fully understands the inadequacy and unlawfulness. of their own behavior. His will to be reintegrated into the social fabric will hardly exist without a full and responsible examination of responsibility.

Often the offender, before being expelled from the community, must undertake to follow a personal process of rehabilitation, in which the elders they have the task of explaining to him, by means of the teachings of the native law and mythical narratives, the ratio of its sanction and the seriousness of its behavior, as well as the key values ​​- rather than the actual rules of law - that all associates are required to respect, such as sharing, respect and individual discipline. In large part, the individual healing process of the offender and his subsequent reintegration into the social community depends on the awareness with which he faces the rehabilitation process, and this awareness is closely linked to the understanding of the narratives of the offenders. elders.

The native offender, instead of undergoing without any understanding the mechanisms and rules of the state judicial procedure, has the opportunity to face a rehabilitation process that can really lead in the first place to his conscious admission of responsibility and, subsequently, to his reintegration within the community fabric. Separated from the community ed ostracized from social life, the offender will understand that he has acted as the trickster of mythical tales, the rascal which, by violating the law of reciprocity that governs natural law like community life, compromises that fragile balance that everyone must constantly strive to maintain. Quoting Chris Andersen, it is in this context that we really understand the importance of elders in native communities, such as "storytellers of the past and visionaries of the future".

It should also be noted that, in the context of such a sanction - unlike in a situation of detention in a state judicial institution - the offender would not be forced to suffer discrimination and abuse by bailiffs and others. prisoners, that the data confirm to be on the agenda for native detainees, in a much higher percentage than for other detainees. On the other hand, many authors who have addressed the Canadian penitentiary issue, including Dara Culhane, emphasize the issue of the dramatic number of native inmates in Canadian prisons and the need for a reform of the prison system in order to eliminate, or at least reduce racial discrimination against native detainees, also hoping for the implementation of alternative judicial procedures for them.  Even indigenous movements such as i Native Sons , Native Brotherhood noted all the inadequacies and injustices of the penal and penitentiary system with regard to the needs of native prisoners: this depends in the first place on the fact that this system was born as a colonialist practice and, therefore, the judicial operators involved in the system have always failed to consider the native perspective of restorative justice alongside the purely punitive function on which this system is based.

The recent discussions regarding the so-called anative restorative justice programs, namely those alternative judicial proceedings whose creation and legal recognition in our opinion appears, in the light of the observations we have made so far, increasingly indispensable. Supporters of the need for justice restorative for native communities they claim that native institutions, compared to the Canadian state and its institutions, know meglio ( "know best") how to govern oneself, referring to the principle of subsidiarity which would be perfectly desirable in a situation, like the Canadian one, of cultural pluralism. Recognizing the legitimacy of a third judicial level to the First Nations, in addition to the state and provincial ones, the transition from a situation of juridical pluralism would be made effective weak to one of juridical pluralism forte.